• Journal of Environmental Policy
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• v.2 no.1
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• pp.107-135
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• 2003

This study reviews the proposed liability and redress regime under the Cartagena Protocol on Biodiversity. Several core elements for the regime are discussed in comparison with those listed in the 1999 Basel Protocol on Liability and Compensation for Damage resulting from the Transboundary Movements of Hazardous Wastes and their Disposal. These are (1) scope of the rules and procedures; (2) channeling of liability; (3) legal standing; (4) definition of damage; (5) standard of care; (6) ancillary sources of compensation; (7) limitation of liability; (8) financial guarantees; and (9) mutual recognition and enforcement of judgments. Korea has given relatively little attention to the issue of liability and redress in the context of LMOs trade. As the Protocol is expected to enter into force soon, Korea needs to develop appropriate implementing domestic mechanisms for the Biosafety Protocol. Establishing an adequate domestic liability and compensation scheme will be one of the most important mechanisms not only to comply the Protocol but to ensure safety of LMOs in general. A further research is needed on the basis of a comparision of relevant legislations in different countries as well as analysis of current laws related to the accidents arising from LMOs trade, such as product liability laws, food safety laws, liability provisions in some environmental legislations.

• The Korean Journal of Air & Space Law and Policy
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• v.12
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• pp.36-65
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• 2000

The Montreal Convention markedly changed the rules governing the international carriage by air of passenger, baggage and cargo. The introduction of a considerable number of modernized major elements including electric ticketing system, the unlimited passenger liability regime and a supplementary (fifth) jurisdiction should help to remove aged scheme that now exists in the Warsaw Convention and other related instruments. The key issue of the electric ticketing system recognized by the Convention IS how to describe reasonably and adequately the terms of written notices, in the light of the principle of consumer protection. Regarding liability regime for passengers, an unlimited passenger liability regime is realized. The carrier, in the first tier, is subject to a strict liability regime of up to 100,000 SDRs, and in the second tire, a regime of presumed fault liability without numerical liability limits. To add to the present four fora, the fifth forum is permitted. Regarding damage resulting the death or injury of a passenger, an action for damages may also be brought in its home territory with the considerably qualified narrow requirements. A strange deviation from the well-established "Procedure for Approval of Draft Convention" carried out by the Legal Committee left a considerable number of unrefined and incomplete passages. In the near future, their modification should be required.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.189-210
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• 2009

The United Nations General Assembly adopted the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea(hereinafter referred to as "The Rotterdam Rules") on 11 December 2008. Rotterdam Rules aims to create a contemporary and uniform law providing for modern door-to-door container transport including an international sea leg. but not limited to port-to port carriage of goods. The structure of the liability regime in Rotterdam Rules are globally close to that of the Hague-Visby Rule even though it differs from that of the Hague-Visby Rules in some significant aspects. The Rotterdam Rules are very long. Therefore the Rotterdam Rules will be difficult to understand for even the skilled ship operator or owner or charterer or shipper or consignee or receiver because they are so complicated. This paper only seeks to highlight the salient features of the liability and limitation of liability regime under the Rotterdam Rules. It is expected that the harmonization and modernization of the international legal regime. coupled with the bold attempt to balance the carrier and cargo interests should lead to an overall reduction in transaction costs. increased predictability and greater commercial confidence for international business transactions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.213-239
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• 2003

This paper intends to describe the liability regime of the air carrier under the Montreal Convention of 1999 for the international cargo, comparing to those of the existing Warsaw Convention system. Also this paper deals with main issues of the Montreal Convention which are relevant for the carrier's liability in the carriage by air of cargo. The Warsaw Convention was adopted in 1929 and modified successively in 1955, 1961, 1971, 1975, and 1999. The Montreal Convention of 1999 modernized and consolidated the Warsaw Convention and related instruments. International air carrier is liable by application of principle of strict liability as stated in the Montreal Convention : The carrier is liable for the destruction or loss of, or damage to cargo and delay during the carriage by air, and the carrier's liability is limited to a sum of 17 Special Drawing Rights per kilogramme. However, the Montreal Convention has main outstanding issues with respect to the liability of the air carrier : potential conflicts between the Montreal Convention and the Warsaw Convention, the amounts of limits of the carrier's liability, the duration of the carrier's liability, the exessive litigation, and the aviation insurance. Therefore, the conditions and limits of the carrier's liability under the Montreal Convention should be readjusted and regulated in detail.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.2
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• pp.3-27
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• 2012

The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air was adopted in 1929. In 1999, the ICAO adopted the Montreal Convention for the Unification of Certain Rules for International Carriage by Air vastly modernizing the unification of private air law. The Montreal Convention replaced the instruments of the Warsaw system, and came into force on 4 November 2003. The Montreal Convention is not only an international convention. It has also exercised a considerable influence on national legislation. Korea has made the national legislation of the Part VI the Carriage by Air of Commercial Act on April 29, 2011, and it has brought into force on November 24, 2011. The national legislation of the Part VI the Carriage by Air of Commercial Act of Korea has the provisions on the liability for damage caused to passenger, the liability for damage caused to baggage, and the liability for damage caused to cargo. The main feature of the liability regime of the air carrier under the Montreal Convention is the two-tier liability system for death or injury of the passenger with strict liability up to 100,000 SDR and presumptive liability with a reversed burden of proof without any limit above that threshold. The national legislation of the Part VI the Carriage by Air of the Commercial Act of Korea has adopted the main principles of the liability of the air carrier under the Montreal Convention. In conclusion, the national legislation relating to the liability of the air carrier by the Korean government will contribute to settle efficiently the dispute on the carrier' liability in respect of the carriage of passengers, baggage and cargo by air, and to provide proper compensation to the passenger or consignor who has suffered damage, subject to the defenses and limitations it sets out.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.327-348
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• 2016

Under the Korean legal system, as an actual carrier is not the contractual party to the contract for carriage of goods by sea, it has been tortiously liable for the damage to, or loss of cargo, should there be the negligence by its part. However, the Rotterdam Rules introduces a revolutionary liability regime for the actual carrier. According to the Rotterdam Rules, the liability of the actual carrier is same with that of a contractual carrier with the result that a shipper is entitled to bring the direct action to the actual carrier, as well as the contractual carrier on the same basis. Nevertheless, it is expected to take long time for the new approach in respect of actual carrier's liability to be confirmed by many countries, and furthermore most of shipping countries including Korea still adopt the Hague-Vis by Rules where the shipper is not allowed to bring the direct action to the actual carrier. This study reviews on whether or not the alteration of actual carrier's liability based on Rotterdam Rules would be reasonable, considering the current Korean legal system. Furthermore, this study, whilst recognizing that the overall introduction of the new liability regime is somewhat premature, suggests the imposition of contractual liability to the actual carrier from a long-term perspective. Having in mind that the article 809 of the Korean Commercial Act allows the shipper to bring the direct action to the shipowner only in the case that a time charterer is the contractual carrier, this study explores a method to apply the contractual liability to the actual carrier in the case that a slot charterer or freight forwarder is the contractual carrier, in order to establish the uniform liability system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.285-304
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• 2018

With the development of market economy, it has been a legislative trend to establish a system for vicarious liability of employers. China also established Tort Liability Law of People's Republic of China in 2009 and ruled responsibility of the employers for the acts for their employees through Art. 35. First, the employer's right to indemnity to an employee should be recognized, because employer's superintendence is much weak and economic power is similar between them. Second, an employer should take a responsibility for an unpaid employee as vicarious liability, because the Law did not exclude them from employees. Lastly, in case the Law conflicts with Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Compensation for Personal Damage, the Law should be regarded it has priority based on several related Principles. Regarding these matters, this study guides you to an analysis of vicarious liability of employers in China, benefits with a view to the perfection of the vicarious liability regime.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.40
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• pp.97-144
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• 2008

The purpose of this paper is to review the text of national legislation relating to the carrier's liability in respect of the carriage of passengers, baggage and cargo by air in major states such as United Kingdom, Germany, France, Canada, Russia and China, and to compare the air carrier's liability under the national legislations of above states with them under the Warsaw System relating to the international carriage by air. Also this paper reviews the text of the draft legislation relating to the carrier's liability in respect of the carriage by air in Korea. The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage was adopted in 1929. In 1999, the ICAO adopted the Montreal Convention for the Unification of Certain Rules for International Carriage by Air vastly modernizing the unification of private air law. The Montreal Convention replaced the instruments of the “Warsaw System”, and came into force on 4 November 2003. The Montreal Convention is not only an international convention. It has also exercised a considerable influence on national legislation. A the Convention, or certain of its principles, with the object of regulating their national air transport. The main feature of the liability regime of the air carrier under the Montreal Convention is the two-tier liability system for death or injury of the passenger with strict liability up to 100,000 SDR and presumptive liability with a reversed burden of proof without any limit above that threshold. The principles of the liability of the air carrier under the Montreal Convention have been adopted into national legislations by the United Kingdom, Germany, France, Canada, Russia and China. Now the Ministry of Justice of Korea is proceeding to make a new national legislation relating to the liability of the air carrier in respect of the carriage by air. The draft legislation of the Part VI the Carriage by Air of the Commercial Code of Korea has adopted the main principles of the liability of the air carrier under the Montreal Convention. In conclusion, the national legislation relating to the liability of the air carrier in Korea will contribute to settle efficiently the dispute on the carrier's liability in respect of the carriage of passengers, baggage and cargo by air.

• International Commerce and Information Review
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• v.12 no.2
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• pp.385-405
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• 2010

The purpose of this study is to investigate liability risk of air cargo carrier and suggests ideas for solving problems which could be happen to air transporters on the future. because of Air transport remains one of the world's fastest growing and most important industries. And important treaties and contracts specifying transporters' responsibility regarding big scale aircraft accidents are such as Warsaw Convention in 1929, Hague Protocol in 1955, Montreal Convention in 1999. The Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage, is a treaty adopted by Diplomatic meeting of ICAO member states in 1999. It amended important provisions of the Warsaw Convention's concerning compensation for the victims of air disasters. In conclusion, suggests to the method of air cargo security and cargo legal liability insurance which is for air cargo carrier's risk management.

• The Korean Journal of Air & Space Law and Policy
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• v.18
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• pp.41-64
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• 2003

This paper describes the liability regime of the air carrier under the Montreal Convention of 1999 for the international cargo, comparing to those of the existing Warsaw system. Also this paper deals with main issues of the Montreal Convention which are relevent for the carrier's liability in the carriage of the air cargo. The Warsaw Convention was adopted in 1929 and modified successively in 1955, 1961, 1971, 1975, and 1999. The Montreal Convention of 1999 modernized and consolidated the Warsaw Convention and related instruments. The air carrier is liable by application of principle of strict liability as stated in the Montreal Convention : The carrier is liable for the destruction or loss of, or damage to cargo and delay during the carriage by air, and the carrier's liability is limited to a sum of 17 Special Drawing Rights per kilogramme. However, the Montreal Convention has some outstanding issues with respect to the liability of the air carrier : potential conflicts between the Montreal Convention and the Warsaw Convention, the amounts of limits of the carrier's liability, the duration of the carrier's liability, the exessive litigation, and the aviation insurance. Therefore, the conditions and limits of the carrier's liability under the Montreal Convention should be readjusted and regulated in detail.