• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.18
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• pp.137-157
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• 2002

The clauses of bill of lading(B/L) consist of the terms of contract for the carriage of goods by sea because of clauses of B/L by the mutual agreement of contracting parties. There are some exempted cause of deviation clause in B/L for specific reasons. Then deviation clauses are influenced by Rules of international carriage of goods by sea, because the international rules become the governing law of contract for the carriage of goods by sea. The problem of deviation clauses in B/L is stipulated as follows. "It shall be prerequisite to the Merchant' claim for damages on account of deviation that the merchant's insurance shall first have been cancelled on account of alleged deviation. No deviation shall oust the right to limit liability or damages, and the Carrier shall always be entitled to the full benefit of all privileges, rights and immunities contained in this Bill of Lading and incorporated tariffs." This stipulation should be adjusted according to the confirmed cases, otherwise it will be invalid according to the Hague Rules and Hamburg rules. The sphere of a reasonable deviation in the deviation clause should be interpreted in the connection with the designed voyage and the commercial object of contract for the carriage of goods by sea and the deviation become valid unless the policy, the general object of international rules or the true intention of contracting parties has violated.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.3-31
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• 2010

The passing of property in goods affects contractual rights and duties. It is the point on which depend issues as diverse as the seller's entitlement to sue for the price and the incidence of risk of loss of casualty to the goods. The passing of property may also have an incidental effect on the remedies of the parties, including specific performance. But Incoterms do not deal with how the goods should reach the agreed point of delivery. While Incoterms specifically deal with questions of division of risk of loss of or damage to the goods between seller and buyer, they do not deal with property or transfer of title of the goods. Indeed, it was not even possible to agree on uniform rules on these questions in the CISG. Therefore, the parties to a contract of sale should provide for these matters themselves in the contract of sale and closely observe what the applicable law requires for the transfer of ownership to the goods and other property rights.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.31-64
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• 2015

The Chicago Convention and Annexes have become the basis of aviation safety regulations for every contracting state. Generally, aviation safety regulations refer to the SARPs provided in the Annexes of the Chicago Convention. In order to properly reflect international aviation safety regulations, constant studies of the aviation fields are of paramount importance. Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea. Each contracting state to the Chicago Convention should meet ICAO SARPs about AOC and FAOC. According to ICAO SARPs, Civil Aviation Authorities shall issue AOC to air carriers of the state, but don't require to issue for foreign air carrier. However some contracting states of the Chicago Convention issue FAOC and/or Operations Specifications for the foreign operators. This FAOC is being expanded from USA to the other contracting states. Foreign operators have doubly burden to implement AOC of the ICAO SARPs because FAOC is an additional requirement other than that prescribed by the ICAO SARPs In Article 33, the Chicago Convention stipulates that each contracting state shall recognize the validity of the certificates of airworthiness and licenses issued by other contracting states as long as they are equal to or above the minimum standards of the ICAO. In ICAO Annex 6, each contracting state shall recognize as valid an air operator certificate issued by another contracting state, provided that the requirements under which the certificate was issued are at least equal to the applicable Standards specified in this Annex. States shall establish a programme with procedures for the surveillance of operations in their territory by a foreign operator and for taking appropriate action when necessary to preserve safety. Consequently, it is submitted that the unilateral action of the states issuing the FAOC to the foreign air carriers of other states is against the Convention. Hence, I make some proposals on the FAOC as an example of comprehensive problem solving after comparative study with ICAO SARPs and the contracting state's regulations. Some issues must be improved and I have made amendment proposals to meet ICAO SARPs and to strengthen aviation development. Operators should be approved by FAOC at most 190 if all states require FAOC. Hence, it is highly recommended to eliminate the FAOC or reduce the restrictions it imposes. In certain compliance-related issues, delayed process shall not be permitted to flight operations. In addition, it is necessary for the ICAO to provide more unified and standardized guidelines in order to avoid confusion or bias regarding the arbitrary expansion of the FAOC. For all the issue mentioned above, I have studied the ICAO SARPs and some state's regulation regarding FAOC, and suggested some proposals on the FAOC as an example of comprehensive problem solving. I hope that this paper is 1) to help understanding about the international issue, 2) to help the improvement of korean aviation regulations, 3) to help compliance with international standards and to contribute to the promotion of aviation safety, in addition.

• The Korean Journal of Air & Space Law and Policy
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• v.21 no.1
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• pp.29-63
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• 2006

This paper studied and introduced the aviation law cases in applying the treaties of the Warsaw System to the liability of the international air carrier by categorizing four main sections. Firstly, this paper handled the cases regarding the defining an international flight, exclusivity of the treaties as international air carrie's liability Convention, determining treaty relationship between the countries which one country has ratified only the Hague Protocol, an amended version of the Warsaw Convention, while the other has ratified only the original, unamended Warsaw Convention. Annotation assisted the case if it needed. Secondly, the cases relating to the issues of actual and contracting carrier, successive carrier, agents and servants of the carrier and others were studied. Thirdly, the issues relating to the accident in the course of any operations of embarking or disembarking of passengers, the occurrence during the transportation by air of baggage or goods and delay in the transportation by air of passengers, baggage or goods in addition to the cancellation of the flights were studied according to the applicable range. Fourthly, I studied the time issue with effective date of the treaties. Conclusively, it is not excessive to emphasize the importance of cases in Aviation Law like all other legal areas, therefore, a full-dress future reaserch of aviation cases is expected in here Korea with this paper as a foundation although it studied and introduced only a part of numerous aviation law cases.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.127-148
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• 2013

The Rotterdam Rules provide that port terminal operator may avoid or limit their liability for cargo loss, damage or delay in delivery or breach of any other obligation under the Rules by invoking the provisions that may provide a defence for, or limit the liability of, the carrier. Consequently the port terminal operator who are involved in the provision of maritime services may avoid or limit their liability for cargo loss, damage or delay in delivery or breach of any other obligation under the Rules. The port terminal operator to be applied for the Himalaya clause under the Rules must show that it has the requisite link with a Contracting State. In addition, the port terminal operator performs service to the period of time between the arrival of the goods at the port of loading and their departure from the port of discharge. The port terminal operator's liability for breaches of its obligation is limited to 875 SDR per package or other shipping units, or 3 SDR per kilogram of the gross weight of the goods. In addition, compensation for delay shall be limited to an amount equivalent to two and one-half times the fright payable on the goods delayed.

• The Korean Journal of Air & Space Law and Policy
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• v.5
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• pp.53-75
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• 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
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• v.28 no.2
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• pp.97-115
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• 2013

The world-wide principal criteria of aircraft operations is ICAO Annex 6. Operations of Aircraft. Among ICAO Annex 6, Part I is for International Commercial Air Transport - Aeroplanes and it assumes major part of civil aviation. ICAO has been providing Contracting States with SARPs(Standards and Recommended Practices) and monitor each State's reflection degree into their domestic air law, so-called USOAP(Universal Safety Oversight Audit Program). Current ICAO USOAP is Snap-shot method, but it will be changed to USOAP-CMA method from the year of 2013. ICAO USOAP results have overall effects on national aviation industry such as routes, insurance, airlines cooperation and so forth. Low grades of results attract international attention and that leads to flag carrier's operation stoppage, route restriction, airlines cooperation restriction, insurance increase directly or indirectly. Thus it is important to get excellent grades in ICAO USOAP and to maintain confidence. Our government ranked top to get 98.89 grades in 2008 ICAO USOAP but after 2008 the revised provisions have not been reflected sufficiently into our air law. So I would like to grip reflection ratio of ICAO Annex 6 Part I into our domestic air law by using the most updated revised edition on this paper. Together I would like to suggest alternatives for the non-reflected and partially reflected.

• The Korean Journal of Air & Space Law and Policy
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• v.18
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• pp.9-39
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• 2003

The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.2
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• pp.31-66
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• 2008

Until Montreal Convention was established in 1999, the Warsaw System is undoubtedly accepted private international air law treaty and has played major role on the carrier's liability in international aviation transport industry. But the whole Warsaw System, though it was revised many times to meet the rapid developments of the aviation transport industry, is so complicated, tangled and outdated. This thesis, therefore, aim to introduce the Montreal Convention by interpreting it as a new legal instrument on the air carrier's liability, specially on the passenger's, and analyzing all the issues relating to it. The Montreal Convention markedly changed the rules governing international carriage by air. The Montreal Convention has modernized and consolidated the old Warsaw System of international instruments of private international air law into one legal instrument. One of the most significant features of the Montreal Convention is that it sifted its priority to the protection of the interest of the consumers from the protection of the carrier which originally the Warsaw Convention intended to protect the fledgling international air transport business. Two major features of the Montreal Convention adopts are the Two-tier Liability System and the Fifth Jurisdiction. In case of death or bodily injury to passengers, the Montreal Convention introduces a two-tier liability system. The first tier includes strict liability up to 100,000SDR, irrespective of carriers' fault. The second tier is based on presumption of fault of carrier and has no limit of liability. Regarding Jurisdiction, the Montreal Convention expands upon the four jurisdiction in which the carrier could be sued by adding a fifth jurisdiction, i.e., a passenger can bring suit in a country in which he or she has their permanent and principal residence and in which the carrier provides a services for the carriage of passengers by either its own aircraft or through a commercial agreement. Other features are introducing the advance payment, electronic ticketing, compulsory insurance and regulation on the contracting and actual carrier etc. As we see some major features of the Montreal Convention, the Convention heralds the single biggest change in the international aviation liability and there can be no doubt it will prevail the international aviation transport world in the future. Our government signed this Convention on 20th Sep. 2007 and it came into effect on 29th Dec. 2007 domestically. Thus, it was recognized that domestic carriers can adequately and independently manage the change of risks of liability. I, therefore, would like to suggest our country's aviation industry including newly-born low cost carrier prepare some countermeasures domestically that are necessary to the enforcement of the Convention.

• The Korean Journal of Air & Space Law and Policy
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• v.19 no.2
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• pp.9-53
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• 2004

This paper described the contents of theme entitled "Domestic Legislative Problems on the Civil Liability of Air Carrier in Korea" including the current example of fourteen countries' legislation ((1) Great Britain, (2) United States of America, (3) Canada, (4)European Union), (5) Germany, (6) France, (7) Italy, (8) Spain, (9) Swiss, (10) Australia, (11) Japan, (12) People's Republic of China, (13) Taiwan, (14) North Korea) relating to the aviation law or air transport law. Though the Korean and Japanese aviation act has provided only the public items such as (1) registration of aircraft, (2) persons engaged in aviation, (3) operation of aircraft, (4) aviation facilities including airport, (5) air transport business, (6) investigate of aircraft accidents etc., but they could not regulated the private items such as the legal relations of the air transport contract (1) air passenger ticket, (2) air luggage ticket, (3) airway bill, (4) liability of air carrier, (5) amount of compensation for damage caused by aircraft accidents, (6)jurisdiction, (7) arbitration, (8) limitation of action, (9) combined carriage, (10) carriage by air performed by an actual carrier other than contracting carrier, damage caused by aircraft to the third parties etc. in their aviation act until now. In order to solve speedily the legal problems on the limitation of air carrier's liability and long law suit and disputes between wrongdoers and survivors etc, it is necessary and desirable for us to enact a new "Draft for the Air Transport Act" including the abovementioned private items. I would like to propose personally and strongly the legislation of "Draft for the Air Transport Act" in Korea in emphasizing the importance of ensuring protection of the interests of consumers air passengers and shippers in carriage by air and the need for equitable compensation between air carriers and survivors caused by the aircraft accidents such as the German Air Transport Act (Luftverkerhrsgesetz).