• Journal of the Korean Society for Aviation and Aeronautics
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• v.17 no.4
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• pp.94-106
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• 2009

오늘날 항공기사고는 우리나라뿐만 아니라 세계도처에서 때때로 발생되고 있다. 특히 항공기에 대한 갑작스러운 테로 공격 또는 일반 항공사고에 기인된 항공기의 추락 및 물건의 낙하로 인하여 지상에 있는 제3자에게 손해를 입히는 경우가 간혹 발생되고 있다. 이와 같은 항공사건에 있어 가해자(항공기 운항자)는 피해자(지상 제3자 등)에 대하여 불법행위책임을 부담하게 되는데 이러한 사건들을 해결하기 위하여 1952년의 개정로마조약과 1978년의 몬트리올의정서 등이 있음으로 본 논문에서는 이들 조약의 성립경위 및 주요내용과 개정이유 등을 간략하게 설명하였다. 특히 2001년 9월 11일에 뉴욕에서 발생된 이른바 항공기 납치에 의한 동시다발 테러 사건의 피해는 4대의 항공기에 탑승한 승객 및 승무원 266명이 전원 사망하였고 워싱턴에 있는 미국 방성청사에서의 사망 및 실종이 125명, 세계무역센터에서의 사망 및 실종이 약5,000여명에 달하는 막대한 피해가 발생되었다. 9/11참사사건은 지상에 있는 제3자의 인적 및 물적 손해가 거액에 달하였음으로 이에 따라 영국의 로이드보험 등 세계보험업계가 크게 손실을 입게 되어 항공보험을 기피하는 현상이 생겨나 법적인 문제점이 제기되었다. 국제민간항공기구(ICAO)에서는 9/11사태 이후 이와 같은 테로 사건의 법적대응책과 자구책을 마련하기 위하여 약 8년간의 심의 끝에 항공기에 대한 테로 공격(불법방해 행위)과 1952년 개정로마조약의 현대화(일반위험) 등 새로운 2개 조약을 2009년 5월 2일에 성립시켜 공표하였다. 상기 새로운 2개의 조약 중 첫째 조약은 항공기의 불법방해 행위에 기인된 제3자에 대한 손해 배상에 관한 조약(Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft: 일명 불법방해조약이라고 호칭함: Unlawful Interference Convention)이고 둘째 조약은 항공기에 기인된 제3자에 대한 손해배상에 관한조약 (Convention on Compensation for Damage Caused by Aircraft to Third Parties: 일명 일반위험 조약이라고 호칭함: General Risk Convention) 이다. 본 논문에서는 이 새로운 2개 조약에 대한 ICAO가 주관한 성립경위와 주요 내용 및 필자의 논평을 제시하였고 이들 조약에 대하여 한국의 조속한 비준을 촉구하는 바이다.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.3-17
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• 2009

The Rome Convention System (1933, 1952, 1978) which deal the third party lability relating to damage caused by aircraft to third parties on the surface have not been so effective and successful like the Warsaw Convention System. This paper briefs the development of the Rome Convention System and the reasons of their failure which are the low level of the limit of liability and non-parties of major civil aviation states such as the United States, the United Kingdom, Japan, Germany and etc. The Diplomatic Conference hosted by ICAO at Montreal during April 20 to May 2 has successfully produced two Conventions; One is Convention on Compensation for Damage Caused by Aircraft to Third Parties (General Risk Convention), the other is Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference involving Aircraft (Unlawful Interference Convention). The major contents and some problems of these two Conventions are reviewed in comparison with the exisiting Rome Convention System and other legal system. Particularly, the entrance into force of the Unlawful Interference Convention may take some time, at least more than 5 years, due to the realistic problems arising from the operation of International Civil Aviation Fund.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.1
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• pp.33-54
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• 2008

The damage to the third parties caused by aircraft in flight shall be fully compensated to the extent that the damage didn't occur unless the damage is caused by innocent victims. However, related international Conventions limit operator's liability of compensation to certain levels, which is one of the main reasons that such international Conventions have not been ratified by many aviation leading States. However, international community has agreed, since 9/11, that the accidents caused by terrorists and the protection of the third parties need to be addressed more actively. And the amendment of the related Rome Conventions has been drafted under the ICAO leadership by the special committee that was organized to modernize the related international Conventions. This study addresses the issues related to the draft Conventions, the draft Convention for Damage caused by Aircraft to Third Parties, in case of Unlawful Interference and the draft Convention on compensation for Damage caused by Aircraft to Third Parties. It is expected that it takes considerable time to reach an agreement on all the issues from appropriate apportionment of liability between the government and operator to the details regarding the management of Supplementary Compensation Mechanism. Under the circumstances where the needs for the air transportation as well as threats of terrorism increase, the new international Convention should be prepared taking into consideration the balance between the protection of the innocent third parties and that of air transport industry including air carriers. Along with this, the Republic of Korea should actively participate in the process of amendment to the related international Conventions to protect the life and property of the people from anticipated damages.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.1
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• pp.3-32
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• 2008

In proportion to recent developments in aviation technology and growth of the air transport market, the risk of damages to third parties caused by aircrafts and the likelihood of unlawful interference on an aircraft in flight has grown larger. The war risk insurance market was paralyzed by the 9/11 terror event. And if another event on the scale of 9/11 occurs, compensations for third party damages will be impossible. Recognizing the need to modernize the existing legal framework and the absence of a globally accepted authority that deals with third party liability and compensation for catastrophic damage caused by acts of unlawful interference, the ICAO and various countries have discussed a liability and compensation system that can protect both third party victims and the aviation industry for the 7 years. In conclusion, in order to provide adequate protection for victims and the appropriate protection for air transport systems including air carriers, work on modernizing the Rome Convention should be continued and the new Convention should be finalized in the near future. Korea has not ratified the relevant international treaties, i.e. Rome Convention 1933, 1952 and 1978, and has no local laws which regulate the damage caused by aircraft to third parties on land. Consequently, it has to depend on the domestic civil tort laws. Most of the advanced countries in aviation such as the United States, England, Germany, France and even China, have incorporated the International Conventions to their national air law and governed carriers third party liability within their jurisdiction. The Ministry of Justice organized the Special Enactment Committee for Air Transport chapter under Commercial Law. The Air Transport chapter, which currently includes third party liability, is in the process of instituting new legislation. In conclusion, to settle such problems through local law, it is necessary to enact as soon as possible domestic legislation on the civil liability of the air carrier which has been connected with third party liability and aviation insurance.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.1
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• pp.35-58
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• 2009

A treaty that governs the compensation on damage caused by aircraft to the third parties on surface was first adopted in Rome in 1933, but without support from the international aviation community it was replaced by another convention adopted again in Rome in 1952. Despite the increase of the compensation amount and some improvements to the old version, the Rome Convention 1952 with 49 State parties as of today is not considered universally accepted. Neither is the Montreal Protocol 1978 amending the Rome Convention 1952, with only 12 State parties excluding major aviation powers like USA, Japan, UK, and Germany. Consequently, it is mostly the local laws that apply to the compensation case of surface damage caused by the aircraft, contrary to the intention of those countries and people who involved themselves in the drafting of the early conventions on surface damage. The terrorist attacks 9/11 proved that even the strongest power in the world like the USA cannot with ease bear all the damages done to the third parties by the terrorist acts involving aircraft. Accordingly as a matter of urgency, the International Civil Aviation Organization(ICAO) picked up the matter and have it considered among member States for a few years through its Legal Committee before proposing for adoption as a new treaty in the Diplomatic Conference held in Montreal, Canada 20 April to 2 May 2009. Accordingly, two treaties based on the drafts of the Legal Committee were adopted in Montreal by consensus, one on the compensation for general risk damage caused by aircraft, the other one on compensation for damage from acts of unlawful interference involving aircraft. Both Conventions improved the old Convention/Protocol in many aspects. Deleting 'surface' in defining the damage to the third parties in the title and contents of the Conventions is the first improvement because the third party damage is not necessarily limited to surface on the soil and sea of the Earth. Thus Mid-air collision is now the new scope of application. Increasing compensation limit in big gallop is another improvement, so is the inclusion of the mental injury accompanied by bodily injury as the damage to be compensated. In fact, jurisprudence in recent years for cases of passengers in aircraft accident holds aircraft operators to be liable to such mental injuries. However, "Terror Convention" involving unlawful interference of aircraft has some unique provisions of innovation and others. While establishing the International Civil Aviation Compensation Fund to supplement, when necessary, the damages that exceed the limit to be covered by aircraft operators through insurance taking is an innovation, leaving the fate of the Convention to a State Party, implying in fact the USA, is harming its universality. Furthermore, taking into account the fact that the damage incurred by the terrorist acts, where ever it takes place targeting whichever sector or industry, are the domain of the State responsibility, imposing the burden of compensation resulting from terrorist acts in the air industry on the aircraft operators and passengers/shippers is a source of serious concern for the prospect of the Convention. This is more so when the risks of terrorist acts normally aimed at a few countries because of current international political situation are spread out to many innocent countries without quid pro quo.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.3-54
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• 2014

The Republic of Korea enacted the Air Transport Act in Commercial Law which was entered into force in November, 2011. The Air Transport Act in Korean Commercial Law was established to regulate domestic carriage by air and damages to the third party which occur within the territorial area caused by aircraft operations. There are some problems to be reformed in the Provisions of Korean Commercial Law for the aircraft operator's liability of compensation for damages to the third party caused by aircraft operation as follows. First, the aircraft operator's liability of compensation for damages needs to be improved because it is too low to compensate adequately to the third party damaged owing to the aircraft operation. Therefore, the standard of classifying per aircraft weight is required to be detailed from the current 4-tier into 10-tier and the total limited amount of liability is also in need of being increased to the maximum 7-hundred-million SDR. In addition, the limited amount of liability to the personal damage is necessary to be risen from the present 125,000 SDR to 625,000 SDR according to the recent rate of prices increase. This is the most desirable way to improve the current provisions given the ordinary insurance coverage per one aircraft accident and various specifications of recent aircraft in order to compensate the damaged appropriately. Second, the aircraft operator shall be liable without fault to damages caused by terrorism such as hijacking, attacking an aircraft and utilizing it as means of attack like the 9 11 disaster according to the present Air Transport Act in Korean Commercial Law. Some argue that it is too harsh to aircraft operators and irrational, but given they have also some legal duties of preventing terrorism and in respect of helping the third party damaged, it does not look too harsh or irrational. However, it should be amended into exempting aircraft operator's liability when the terrorism using of an aircraft by well-organized terrorists group happens like 9 11 disaster in view of balancing the interest between the aircraft operator and the third party damaged. Third, considering the large scale of the damage caused by the aircraft operation usually aircraft accident, it is likely that many people damaged can be faced with a financial crisis, and the provision of advance payment for air carrier's liability of compensation also needs to be applied to the case of aircraft operator's liability. Fourth, the aircraft operator now shall be liable to the damages which occur in land or water except air according to the current Air Transport Act of Korean Commercial Law. However, because the damages related to the aircraft operation in air caused by another aircraft operation are not different from those in land or water. Therefore, the term of 'on the surface' should be eliminated in the term of 'third parties on the surface' in order to make the damages by the aircraft operation in air caused by another aircraft operation compensable by Air Transport Act of Korean Commercial Law. It is desired that the Air Transport Act in Commercial Law including the clauses related to the aircraft operator's liability of compensation for damages to the third party be developed continually through the resolutions about its problems mentioned above for compensating the third party damaged appropriately and balancing the interest between the damaged and the aircraft operator.