• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.137-168
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• 2020

Air passengers may be compensated for damages based on the above agreement when the passenger suffers an accident to the extent that they are recognized as an accident under Article 17 of the Montreal Convention in 1999. If a flight or cabin crew and passengers both undergo an accident, passengers are subjected to compensation under the Montreal Convention however flight cabin crews will be compensated by the Labor Law, which is the governing law in the labor contract with the airline. The flight or cabin crew boarding the aircraft work is on a work contract, not a passenger transport contract. Therefore, if the flight or cabin crew on the aircraft is injured due to an accident, and the air carrier is liable for default due to a labor contract, the Labor Law, workers or survivors claim damages due to illegal acts against the employer. In which case, civil law will apply. In this regard, if a Chinese cabin crew working for a Chinese airline dies due to an accident in the Republic of Korea, whether the family of the deceased claims damages against the Chinese airline or not has international court jurisdiction in the Republic of Korea, which is the place of tort. We examined whether it is the law of the Republic of Korea or whether it's the Chinese law, the law applicable to the work contract, is applied. Also, Seoul District Court 1995.5.18. The sentence 94A 14144 was found that if the injured crew during the flight work was not satisfied with the insurance compensation under the Labor Standards Act and the Industrial Accident Compensation Insurance Act, he could claime to damage under the civil law against an air carrier or third parties responsible for the accident. This law case shows that you can claim a civil damage as a cause. In case of death due to an existing illness while on the way to work, the Korea Workers'Compensation and Welfare Service did not recognize the death of the deceased as an occupational accident, and the trial was canceled by the parents of the deceased for the survivor's benefit and funeral expenses. (Seoul Administrative Court 2017.8. 31. Although the sentence was judged as an occupational disaster in 2016, the 2016 8816 Decision), it was defeated in the appeals court (Seoul High Court 2018.7.19.Sentence 2017 No. 74186) and I criticized the judgment of the appeal by analyzing the deceased's disease and related the cause of it to workload. Sometimes, a flight or cabin crew is on board not for the flight duty such as transferring to another flight or returning to the home base or lay-over place after their scheduled flight, this is called "Deadheading". If the crew who is not considered the same as a passenger, but is not on duty, is injured in an accident, does the crew claim compensation for damages under the labor contract or whether the Montreal Convention is applied to the passenger. In conjunction with the discussion, there was a similar case, In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983), Demanes v. United Airlines, 348 F.Supp. 13 (C.D.Cal. 1972), Sulewski v. Federal Express Corp., 749 F.Supp. 506 (S.D.N.Y. 1990) and reviewed by the European Court of Justice (CJEU) at Wucher Helicopter GmbH and Euro-Aviation Versicherungs AG v. After examining several acts in several countries it's undeniably crucial to clearly understand the definition of "passenger" as stated in the Fridolin Santer case.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.45-79
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• 2018

An increase of airplanes and military aircraft operation lead to significant demanding of residential claims by people who live in nearby airports and military bases due to noise, vibration and residential damages caused by aircraft operations. In recent years, a plaintiff has filed a lawsuit against the defendant, claiming the prohibition of using claimant's possessed land as a helicopter landing route, and the Daejeon High Court was in favour of the plaintiff. Although the Supreme Court later dismissed the Appeal Court decision, it is necessary to discuss the case of setting flight prohibited zone. In Japan, the airport noise lawsuits have been filed for a long time, mainly by environmental groups. Unlike the case that admitted residential damages caused by noise, the Yokohama District Court for the first time sentenced a judgment of the prohibition of the flight. This ruling was partially changed in the appellate court and some of the plaintiffs' claims were adopted. However, the Supreme Court of Japan finally rejected such decision from appeal and district courts. Atsugi Base is an army camp jointly used by the United States and Japan, and residents, live nearby, claim that they are suffering from mental damage such as physical abnormal, insomnia, and life disturbance because of the noise from airplane taking off and landing in the base. An administrative lawsuit was therefore preceded in the Yokohama District Court. The plaintiff requested the Japan Self-Defense Forces(hereinafter 'JSDF') and US military aircraft to be prohibited operating. The court firstly held the limitation of the flight operation from 10pm to 6am, except unavoidable circumstance. The case was appealed. The Supreme Court of Japan dismissed the original judgment on the flight claim of the JSDF aircraft, canceled the first judgment, and rejected the claims of the plaintiffs. The Supreme Court ruled that the exercise of the authority of the Minister of Defense is reasonable since the JSDF aircraft is operating public flight high zone. The court agreed that noise pollution is such an issue for the residents but there are countermeasures which can be taken by concerned parties. In Korea, the residents can sue against the United States or the Republic of Korea or the Ministry of National Defense for the prohibition of the aircraft operation. However, if they claim against US government regarding to the US military flight operation, the Korean court must issue a dismissal order as its jurisdiction exemption. According to the current case law, the Korean courts do not allow a claimant to appeal for the performance of obligation or an anonymous appeal against the Minister of National Defense for prohibiting flight of military aircraft. However, if the Administrative Appeals Act is amended and obligatory performance litigation is introduced, the claim to the Minister of National Defense can be permitted. In order to judge administrative case of the military aircraft operation, trade-off between interests of the residents and difficulties of the third parties should be measured in the court, if the Act is changed and such claims are granted. In this connection, the Minister of National Defense ought to prove and illuminate the profit from the military aircraft operation and it should be significantly greater than the benefits which neighboring residents will get from the prohibiting flight of military aircraft.