| With the quick development of aviation technology, air transportation is preferred by more and more people as a high efficient and fast transport mode. However, we have noted that although people can benefit from air transportation in terms of traveling and goods transportation with the advantages of high efficiency, convenience and clean, a series of risks arise therefrom as well. Take the following issues as example. The passenger, the owner of goods and third parties would suffer bodily injury and property damage caused by air accident,the environment would be polluted by the aircraft emissions, aviation flight would produce noises and sound bombs, damage would occur in case of collision between two aircrafts in flight, and bodily injury and property damage would be caused by the aircraft which is availed by terrorist, etc. Generally speaking, all the above-mentioned issues may be fell under aviation torts. Since air transportation often has the character of internationality, how to regulate such issues becomes a legal problem facing the whole world, which makes the common efforts of each country necessary. Under the common efforts took by the whole world, some accomplishments have been achieved. One of the most important achievements is 1929 Warsaw Convention system which governs the civil relationship between aircraft operator and passenger and consignor. The system is serious possible to be replaced by 1999 Montreal Convention which has been come into force and is more successful. However, this is not the research focus of this thesis. This thesis focuses mainly on the damage caused by the aircraft in flight to third parties.The thesis consists of six chapters as follows.Chapter 1 is an overview of the aviation law. It introduces briefly the history and development of aviation law, which makes the reader get some understanding of the origin and sources of aviation law. Next, it defines the aircraft, the nationality of aircraft and the necessary requirements to be a civil aircraft, which lays down the theoretic foundation of the whole thesis. Finally, it points out that there are two main aviation torts in the field of air transportation. One is the damage caused by aircraft to the body and property of the passenger and consignor, which would induce liability for breach of contract in most cases as well. The other one is the research emphasis of the thesis, that is, the damage caused by the aircraft in flight to the body and property of third parties. From the international level, as for the first kind of tort, it should be adjusted by the 1929 Warsaw Convention system. As for the second kind of tort, a series of international conventions have been made by the international society accordingly, which are represented by the 1952 Rome Convention system. However, 1952 Rome Convention system dose not achieve as great success as the 1929 Warsaw Convention system dose.Chapter 2 expounds the Rome Convention system in detail. The Rome Convention system includes 1933 Rome Convention, 1952 Rome Convention and 1978 Montreal Protocol which amended the 1952 Rome Convention. This Chapter elaborates the main content of the two Conventions and the Protocol. Then it points out that the two Conventions and one Protocol dose not succeed in practice and need to be carefully reviewed. At present International Civil Aviation Organization (ICAO) is sparing no effort to amend or modernize the Rome Convention system, and such modernization is deemed to be accorded with the development of civil aviation.Chapter 3 analyses the motion and process of the modernization of Rome Convention. First of all, it surveys the ratification of the Rome Convention system and analyses the reason of failure encountered by the Rome Convention system. Then it explores the motion of modernization of Rome Convention system from the perspective of fundamental reason, external reason and direct reason. Meantime, it defines the "modernization" in order to avoid unnecessary confusion. At last, this Chapter introduces the process of the modernization of Rome Convention. For the purpose of dealing with the compensation made by aircraft to third party whose body or property suffers damage from the aircraft in flight more efficiently, ICAO frames two drafts. One regulates the damage caused by general risk and the other regulates the damage caused by unlawful interference. The two drafts are named "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties"( hereinafter refer to General Risk Draft Convention) and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in Case of Unlawful Interference"( hereinafter refer to Unlawful Interference Draft Convention) respectively. This Chapter introduces the core articles and main content of the two drafts briefly, which lays down foundation for later discussion.Chapter 4 lucubrates the legal issues relating to General Risk Draft Convention, and it is the pivot of the thesis. Chapter 4 is divided into five sections which comb and analyze almost all the important issues relating to the Draft Convention. Section 1 defines some critical terms of the Draft Convention, including "in flight", "third party" and "operator". Section 2 firstly introduces the general definition of principle of culpability, the system of principle of culpability and several important kinds of principle of culpabilty. Then it analyses and evaluates the system of principle of culpability of Draft Convention. At the same time, this Section analyses the limitation of liability of aircraft operator which has great controversy among countries. It comes to the conclusion that in order to get the wide ratification, particularly the ratification of aviation powers, the actual damage sustained by third parties should be compensated by the aircraft operator, rather than set up a liability limitation for latter with intent. Section 3 defines the term of "damage". Since the type of damage determines the compensation bound, this definition has great significance. Draft Convention provides the type of damage very clearly. Above all, Draft Convention provides that the mental injury is compensable. However any non-compensable compensation is forbidden. Section 4 concerns the causality. Draft Convention provides only the damage sustained by third parties is the direct consequence of the event caused by the aircraft in flight, dose the aircraft operator take responsibility of compensation. So the understanding of "direct consequence" should be based on the analyses of causality. Section 5 is on the procedure issues. Procedure issues mainly include jurisdiction, applicable law and recognition and enforcement of judgment. During the drafting process, procedure issues are not very controversial, so these articles are comparatively mature. Chapter 5 analyses and evaluates the Unlawful Interference Draft Convention. Unlawful interference action, especially the terroristic action is seriously possible to cause third parties' damage with large scale. 9/11 event happened in United States in 2001 was a good example. The damage caused by unlawful interference and general risk has distinguished difference, so separate regulation is necessary. Unlawful Interference Draft Convention is such an instrument as to regulate the damage caused by unlawful interference. This chapter firstly defines what is "unlawful interference action", meanwhile distinguishes " unlawful interference action", "terroristic action" and pirate action. Then it expounds the responsibility system of aircraft operator, and comes to the conclusion that it is inappropriate to levy strict liability on aircraft operator who is also the victim, to compensate the damage sustained by third parties in case of unlawful interference. Finally, it introduces and evaluates the Supplementary Mechanism which is particularly designs by the Draft Convention to deal with the compensation in case of unlawful interference. In conclusion, the draft is far from maturity and needs further study, otherwise it will follow the old disastrous road of 1952 Rome Convention.Chapter 6 concerns the legislation and practice on third parties' liability system in China. First of all, it introduces the legislation regarding the compensatory liability in the event that aircraft in flight causes damage to third parties, and examines the legislative deficiencies through case study. Then it elaborates how dose modernization of Rome Convention affect the aviation legislation of China, and it is of the opinion that the reasonable content of General Risk Draft Convention should be carefully considered when 1996 Aviation Law is under process of amendment so that the amended law has forwarding-looking and international characters.The conclusion sums up the basic viewpoints of the thesis. It points out that China is not only an aviation big country, but also becoming an aviation power. However the aviation research lags behind the development of aviation industry, so research in this field should be strengthened in the future.
|
PDF Full Text Request