• The Korean Journal of Air & Space Law and Policy
• /
• v.25 no.2
• /
• pp.3-42
• /
• 2010

This study shows that the Warsaw Convention in Article 1 is not an international transport, origin, destination and all the Contracting Parties is not a purely domestic shipping does not apply to this Treaty. Therefore, in this case, liability and damages for the governing law is selected according to international law should be. In addition, in the case of international shipping and passenger air carrier of this treaty to govern the relationship, not all of which aim is the unification of certain rules. Product liability is the most important thing of all. As for the aircraft manufacturer's responsibility according to international law also does not select the applicable law is not. The Warsaw Convention Article 17 apply for the passenger's personal damages Article 2 Section 2 leads to the most prestigious type of damages, and subjective and objective with regard to the scope of international law are being committed. In this regard, Governing Law-related aircraft accidents leading to serious accidents in China of an aircraft crash in Nagoya, Japan, the airport can be. China Airlines accident of the aircraft are operated for the unification of the rules for international air transport on the Warsaw Convention as amended by Article 17, Article 18 of damages by the tort claims and claims based on damages caused by, or this cause of aircraft accidents air bus maker by the Corporation for damages in tort claims for damages claimed on the basis of solidarity is the case. In the case of these grand scale claim responsibility for the airline, air transport agreements to determine the applicable law of the contract is very complex. There for the contracts based on individual circumstances or origin, and by considering because each must be determined.

• The Korean Journal of Air & Space Law and Policy
• /
• v.7
• /
• pp.101-134
• /
• 1995

Article 3 Paragraph 1 of the Warsaw Convention regulates the requirements of passenger tickets, Article 4 Paragraph 3, the requirements of baggage tickets, Article 8, the requirements of airway bills. In this article the writer has discussed the legal nature of the documents of air carriage, such as air waybills, passenger tickets and baggage checks. Further, the writer has also discussed several issues relating to the use of the documents of air carriage under the Warsaw Convention. Article 3 Paragraph 2, as well as Article 4 Paragraph 4 and 9 provides that the carrier shall not be entitled to avail himself of the provisions of the Convention which evade or limit his liability. In particular, the Montreal Agreement of 1966 provides that the notification on the carrier's liability in passenger ticket should be printed in more than 10 point type size with contrasting ink colors. However, another question is whether the carrier shall not be entitled to avail himself of the liability limit under the Convention in case the type size is below 10 points. The Convention does not specify the type size of certain parts in passenger tickets and only provides that the carrier shall not be entitled to avail himself of liability limit, when a carrier fails to deliver the ticket to passenger. However, since the delivery of passenger tickets is to provide an opportunity for passengers to recognize the liability limit under the Convention and to map out a subsequent measures, the carrier who fails to give this opportunity shall not be entitled to avail himself of the liability limit under the Convention. But some decisions argue that when the notice on the carrier's liability limit is presented in a fine print in a hardly noticeable place, the carrier shall not be entitled to avail himself under the Convention. Meanwhile, most decisions declare that regardless of the type size, the carrier is entitled to avail himself of liability limit of the provisions of the Convention. The reason is that neither the Warsaw Convention nor the Montreal Agreement stipulate that the carrier is deprived from the right to avail himself of liability limit of the provisions of the Convention when violating the notice requirement. In particular, the main objective of the Montreal Agreement is not on the notice of liability limit but on the increase of it. The latest decisons also maintain the same view. This issue seems to have beeen settled on the occasion of Elisa Chan, et al. vs. Korean Airlines Ltd. The U.S. Supreme Court held that the type size of passenger ticket can not be a target of controversy since it is not required by law, after a cautious interpretation of the Warsaw Convention and the Montreal Agreement highlighting the fact that no grounds for that are found both in the Warsaw Convention and the Montreal Agreement. Now the issue of type size can hardly become any grounds for the carrier not to exclude himself from the liability limit. In this regard, any challenge to raise issue on type size seems to be defeated. The same issue can be raised in both airway bills and baggage tickets. But this argument can be raised only to the tranportation where the original Convention is applied. This creates no problem under the Convention revised by the Hague Protocol, because the Hague Protocol does not require any information on weight, bulk, size, and number of cargo or baggage. The problem here is whether the carrier is entitled to avail himself of the liability limit of the provisions of the Convention when no information on number or weight of the consigned packages is available in accordance with Article 4 of the Convention. Currently the majority of decisions show positive stance on this. The carrier is entitled to avail himself of the liability limit of the provisions of the Convention when the requirement of information on number and weight of consigned packages is skipped, because these requirements are too technical and insubstancial. However some decisions declare just the opposite. They hold that the provisions of the Convention Article 4 is clear, and their meaning and effect should be imposed on it literally and that it is neither unjust nor too technical for a carrier to meet the minimum requirement prescribed in the Convention. Up to now, no decisions by the U.S. Supreme Court on this issue is available.

• The Korean Journal of Air & Space Law and Policy
• /
• v.5
• /
• pp.53-75
• /
• 1993

This article is concerned with the comment on "Some New Problems of International Aviation Security-Considerations Forcused on its Legal Aspects". Ever since 1970, in addition to the problem of failure to accept the Tokyo, Hague and Montreal Conventions, there has been also the problem of parties to them, failing to comply with their obligations under the respective treaties, in the form especially of nominal penalties or the lack of any effort to prosecute after blank refusals to extradite. There have also been cases of prolonged detention of aircraft, passengers and hostages. In this regard, all three conventions contain identical clauses which submit disputes between two or more contracting States concerning the interpretation or application of the respective conventions to arbitration or failing agreement on the organization of the arbitration, to the International Court of Justice. To the extent to which contracting States have not contracted out of this undertaking, as I fear they are expressly allowed to do, this promision can be used by contracting States to ensure compliance. But to date, this avenue does not appear to have been used. From this point of view, it may be worth mentioning that there appears to be an alarming trend towards the view that the defeat of terrorism is such an overriding imperative that all means of doing so become, in international law, automatically lawful. In addition, in as far as aviation security is concerned, as in fact it has long been suggested, what is required is the "application of the strictest security measures by all concerned."In this regard, mention should be made of Annex 17 to the Chicago Convention on Security-Safeguarding International Civil Aviation against Acts of Unlawful Intereference. ICAO has, moreover, compiled, for restricted distribution, a Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, which is highly useful. In this regard, it may well be argued that, unless States members of ICAO notify the ICAO Council of their inability to comply with opecific standards in Annex 17 or any of the related Annexes in accordance with Article 38 of the 1944 Chicago Convention on International Civil Aviation, their failure to do so can involve State responsibility and, if damage were to insure, their liability. The same applies to breaches of any other treaty obligation. I hope to demonstrate that although modes of international violence may change, their underlying characteristics remain broadly similar, necessitating not simply the adoption of an adequate body of domestic legislation, firm in its content and fairly administered, but also an international network of communication, of cooperation and of coordination of policies. Afurther legal instrument is now being developed by the Legal Committee of ICAO with respect to unlawful acts at International airports. These instruments, however, are not very effective, because of the absence of universal acceptance and the deficiency I have already pointed out. Therefore, States, airports and international airlines have to concentrate on prevention. If the development of policies is important at the international level, it is equally important in the domestic setting. For example, the recent experiences of France have prompted many changes in the State's legislation and in its policies towards terrorism, with higher penalties for terrorist offences and incentives which encourage accused terrorists to pass informations to the authorities. And our government has to tighten furthermore security measures. Particularly, in the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescence to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. The general opinion is that the legal oystem could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the sovereign rights of states, and the human rights of the individuals. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co - ordinated measures.

• The Korean Journal of Air & Space Law and Policy
• /
• v.30 no.2
• /
• pp.177-199
• /
• 2015

Commerce enriches human life enriched and within commerce, transportation of cargo is arguably the most important in business transactions. Traditionally, marine transport has been major commercial transaction, but carriage cargo by air is on the increase. While the fare for freight in comparison with that of ocean is higher, air freight has many benefits that justify the higher shipping fee; lower insurance premium, packing charges, inventory control, cost management and especially speed. Therefore, air freight transport is accumulating gradually. An air waybill(AWB) is needed in the air transport flow. It is a nonnegotiable security, so the holder cannot transfer of a right to a third party. Some scholars suggest that a negotiable AWB is needed. However, it seems nearly impossible to do so; an e-AWB use shows a gain in numbers, even if it has not met expectations. Going forward, it would appear reasonable to conduct a follow-up study on the utility and legal problem for e-AWB. After sending goods, the consignor has the right of disposition of cargo in some cases, and more research is necessary, because it is related to change of ownership and a trade settlement. According to WATS (World Airlines Transport Statistics), the Korean Air took third place in international freight in 2014, and fifth in total, domestic and international to great acclaim. However, there is a lack of research supporting the business showing. It is hope that more studies on e-AWB, stoppage in transit, and a risk of outstanding amount, etc. connect to develop Korean air freight industry.

• The Korean Journal of Air & Space Law and Policy
• /
• v.28 no.1
• /
• pp.97-114
• /
• 2013

The 6th Worldwide Air Transport Conference was held in Montreal in March 2013 under the auspices of ICAO. This conference, which has been held every ten years, is dealing with virtually every issue of international air transport, and aiming at updating ICAO policy in order to ensure long-term growth of international civil aviation. Last conference which took place in 2003 focused on the liberalization of air transport, and the 6th conference shifted its focus from whether to push for liberalization, to how to implement it. The main agenda items for the 6th conference was liberalization, safeguards, ownership, fair competition, airports and air navigation facilities, charges, and ICAO policy. The liberalization, and in particular progressive liberalization has been a main theme over the past decades. In the process leading to liberalization, there needs to be the expansion of market access, easing regulation on ownership and control of airlines. Furthermore, the provision of enough infrastructure such as airport and air navigation facilities may be contributing factor to remove impediments to liberalization. However, out of concern as for undermining interests of consumer and the weak, when liberalization is proceeding in a sudden and radical manner, there should be safeguards so as to ensure market participation by developing countries, consumer protection, and economical and transparent decision on taxes and charges. Fair competition which differs from promoting competition in the market, is a policy in order to protect the weak players and consumers from monopoly and oligopoly. The Korean delegation submitted 3 WPs (WP/85, 86 and 87) and 1 IP, and presented WPs, at the conference, which were a lot compared with previous occasions. A paradigm shift was emphasized to expedite the process of liberalization at the 6th conference. The reality is that with many previous recommendations to stress the importance of liberalization, and to urge States to change their attitudes, the pace of the liberalization has been very slow and staggering. The liberalization of air transport will contribute to the growth of air transport and related industry, to create new employment, promoting tourism and regional development, and further to facilitating mutual understanding and exchange, which will also lead to making a barrier-free world. In this context, it is expected that the next conference will also evaluate the on-going process of liberalization.

• The Korean Journal of Air & Space Law and Policy
• /
• v.28 no.1
• /
• pp.73-96
• /
• 2013

ICAO's Universal Safety Oversight Audit Programme (USOAP) was initially launched in January 1995, in response to widespread concerns about the adequacy of aviation safety oversight around the world. The recent reduction in aircraft accidents and effective role that is evaluated on the basis of these results, and in 2013 the existing 'snapshot approach' to 'regular monitoring system (USOAP-Continuous Monitoring Approach)' was converted to. ICAO aviation safety assessment of the state in today's international community 'aviation safety credibility' as objective indicators to judge the enormous impact on the aviation industry, the state is not satisfactory, especially if the results of the evaluation and expansion of code-share airline ban, reduced international air transit passengers, including premium increases business and economic penalties should. In addition, ICAO implementation of the existing laws and regulations(Prescriptive Approach), but based on the Risk-based prevention model, Proactive Approach introduced the concept of aviation safety system, including international aviation safety policy has been to switch paradigms. This new ICAO international aviation safety policy also applies to the Government of the Republic of Korea in line with the aviation safey policies have changed. In particular, the systematic implementation of safety management for the existing laws and regulations in the center of the safety oversight system of risk-based introduction of the concept of proactive safety management, and According to international standards ICAO aviation service providers operate their own Safety Management System was set out in Aviation Law ever. In addition, the aviation safety is at the center of the field of the safety of aircraft operations and maintenance for the promotion is promoting various safety policies. This new paradigm shift in the international aviation safety policy in line with our state in the international community with the most exemplary aviation safety system firmly established itself as a model, the Government will strengthen the competitiveness of our aviation plans to support. To do this, the government, airlines, aviation officials try all the practical effect would be expected.

• The Korean Journal of Air & Space Law and Policy
• /
• v.29 no.1
• /
• pp.3-32
• /
• 2014

Safety Management System is the aviation industry policy for while operating the aircraft, to ensure the safety crew, aircraft and passengers. For operating a safe aircraft, in order to establish the international technical standards, the International Civil Aviation Organization has established the Annex 19 of the Convention on International Civil Aviation. As a result, member country was supposed to be in accordance with the policy of the International Civil Aviation Organization, to accept the international standard of domestic air law. The South Korean government announced that it would promote active safety management strategy in primary aviation policy master plan of 2012. And, by integrating and state safety programmes(ssp) and safety management system(sms) for the safe management of Annex 19 is to enforce the policy on aviation safety standards. State safety programmes(ssp) is a system of activities for the aim of strengthening the safety and integrated management of the activities of government. State safety programmes(ssp) is important on the basis of the data of the risk information. Collecting aviation hazard information is necessary for efficient operation of the state safety programmes(ssp) Korean government must implement the strategy required to comply with aviation methods and standards of the International Civil Aviation Organization. Airlines, must strive to safety features for safety culture construction and improvement of safety management is realized. It is necessary to make regulations on the basis of the aviation practice, for aviation safety regulatory requirements, aviation safety should reflect the opinion of the aviation industry.

• The Korean Journal of Air & Space Law and Policy
• /
• v.34 no.1
• /
• pp.39-77
• /
• 2019

Crew members engaged in international air transportation provide work in many countries due to the nature of their work. According to the Private International Act, the place where the employee habitually carries out his/her work plays an important role in the determination of the governing law of the international labor contract (Article 28, Paragraph 2) and in the decision of international jurisdiction (Article 28, Paragraphs 3 and 4). The concept of the place where the employee habitually carries out his/her work was proposed by the EU to determine international jurisdiction and governing law. In international aviation law, the legislative purpose of the place where the employee habitually carries out his/her work is different from that of home base, which is a concept introduced for fatigue management of the crew in order to secure the aviation safety; thus the place where the employee habitually carries out his/her work and home base are not the same concept. In order to determine the place where the employee habitually carries out his/her work, following matters should be considered comprehensively; (i) where the crew starts and ends work, (ii) where the aircraft the crew is performing work on is primarily parked, (iii) where the crew is informed of the instructions and organizes his/her work activities, (iv) where the crew is obliged to reside according to the labor contract, (v) where there is an office provided by the employer and available to the crew, (vi) where the crew is obliged to be when he/she is ineligible for the work or subject to discipline. However, since all of the above items are the same as the location of the home base, it is reasonable to consider the home base as the most important factor when deciding on the place where the employee habitually carries out his/her work. In contrast, the state where the aircraft is registered (Article 17 of the Chicago Convention), should not be regarded as a place of where the employee habitually carries out his/her work. In this case, CJEU provided the first judging standard for the concept of the place where the employee engaged in international air transportation habitually carries out his/her work. It is the interpretation of the Brussels regulations which became a model -for the Korean Private International Act,- so it would be helpful to understand the concept of the place where the employee habitually carries out his/her work.

• The Korean Journal of Air & Space Law and Policy
• /
• v.33 no.2
• /
• pp.345-366
• /
• 2018

Article 37 of the International Convention on Civil Aviation requires that rules should be adopted to keep in compliance with international standards and recommended practices established by ICAO. As SARPs are revised annually, each ICAO Member State needs to reflect the new content in its national aviation Acts in a timely manner. In recent years, data-driven international standards have been developed because of the important roles of aviation safety data and information-based legislation in accident prevention based on human factors. The Safety Management System and crew Fatigue Risk Management Systems were reviewed as examples of the result of data-driven rulemaking. The safety management system was adopted in 2013 with the introduction of Annex 19 and Chapter 5 of the relevant manual describes safety data collection and analysis systems. Through analysis of safety data and information, decision makers can make informed data-driven decisions. The Republic of Korea introduced Safety Management System in accordance with Article 58 of the Aviation Safety Act for all airlines, maintenance companies, and airport corporations. To support the SMS, both mandatory reporting and voluntary safety reporting systems need to be in place. Up until now, the standard of administrative penal dispensation for violations of the safety management system has been very weak. Various regulations have been developed and implemented in the United States and Europe for the proper legislation of the safety management system. In the wake of the crash of the Colgan aircraft, the US Aviation Safety Committee recommended the US Federal Aviation Administration to establish a system that can identify and manage pilot fatigue hazards. In 2010, a notice of proposed rulemaking was issued by the Federal Aviation Administration and in 2011, the final rule was passed. The legislation was applied to help differentiate risk based on flight according to factors such as the pilot's duty starting time, the availability of the auxiliary crew, and the class of the rest facility. Numerous amounts data and information were analyzed during the rulemaking process, and reflected in the resultant regulations. A cost-benefit analysis, based on the data of the previous 10 year period, was conducted before the final legislation was reached and it was concluded that the cost benefits are positive. The Republic of Korea also currently has a clause on aviation safety legislation related to crew fatigue risk, where an airline can choose either to conform to the traditional flight time limitation standard or fatigue risk management system. In the United States, specifically for the purpose of data-driven rulemaking, the Airline Rulemaking Committee was formed, and operates in this capacity. Considering the advantageous results of the ARC in the US, and the D4S in Europe, this is a system that should definitely be introduced in Korea as well. A cost-benefit analysis is necessary, and can serve to strengthen the resulting legislation. In order to improve the effectiveness of data-based legislation, it is necessary to have reinforcement of experts and through them prepare a more detailed checklist of relevant variables.

• The Korean Journal of Air & Space Law and Policy
• /
• v.32 no.1
• /
• pp.177-200
• /
• 2017

This writer have thus far reviewed the civil and criminal obligations of the directors of a parent company that sponsored financially troubled affiliates. What was discussed here applies to logistics companies in the same manner. Hanjin Shipping cannot expect its parent company, Korean Air to prop it up financially. If such financial aid is offered without any collateral, under Korean criminal law, the directors of the parent company bears the burden of civil and criminal responsibility. One way to get around this is to secure fairness in terms of the process and the content of aid. Fairness in terms of process refers to the board of directors making public all information and approving such aid. Fairness in terms of content refers to impartial transactions that block out any possibilities of the chairman of the corporate group acting in his private interest. In the case of Korean Air bailing out Hanjin, the meeting of board of directors were held five times and a thorough review was conducted on the risks involved in the loans being repaid or not. After the review, measures to guard against undesirable scenarios were established before finally deciding on bailing out Hanjin. As such, there are no issues. In terms of the fairness of content, too, there were practically no room for the majority shareholder or controlling shareholder to pocket profits at the expense of the company. This is because the continued aid offered to a financially troubled company (i.e. Hanjin Shipping) was a posing a burden to even the controlling shareholder. This writer argues that the concept of the interest of the entire corporate group needs to be recognized. That is, it must be recognized that the relationship of control and being controlled between parent company and affiliate company, or between affiliate companies serves a practical benefit to the ongoing concern and growth of the group and is therefore just. Moreover, the corporate group and its affiliates, as well as their directors and management must recognize that they have an obligation to prioritize the interests of the corporate group ahead of the interests of the company that they are directly associated with. As such, even if Korean Air offered a loan to Hanjin Shipping without collateral, the act cannot be treated as an offense to law, nor can the directors be accused of damages that they bear the responsibility of compensating under civil law.