| International air transport tort is the focal points of international aviation scholars. Beginning with 1929 "Warsaw Convention", the warsaw system has been committed to provide a unified template for international air transport tort liability, but the objections none the less put forward from many aspects. This situation makes the study of international air transport tort still an important part of international air law.This paper discusses the issues of international air transport tort by means of historical research, case studies and comparative research. The intention of this paper can be divided into four parts:first is the theoretical analysis of basic concept, liability principles, liability limits and compensation of international air transport tort; second is the summarization of international air transport tort’s development tendency by comparison of warsaw conventions and international air transport cases; third is the analysis of jurisdiction and law application of international air transport tort; last is the conclusion and improved proposals of China’s existing legislative inadequacies of air transport tort liability.The paper consisted by six chapters and approximately 160,000 words.Chapter 1 is the basis chapter of the full text which discusses the conceptual issues of international air transport tort from three aspects:1) the explanation of aircraft and airspace as the theoretical premise to international air transport tort analysis; 2) the introduction of warsaw system as the essential means to international air transport tort analysis; 3) the description of concepts and characteristics of international air transport tort as conclusion, illuminates that the "international air transport tort" in this paper only refers to the tort adjusted by warsaw system, which means international air passenger and cargo transportation tort.Chapter 2 is the key chapter of the full text which discusses the issues of air carrier, as the main subject of liabilities of international air transport tort adjusted by warsaw system from four aspects:1) the concept and classification of air carriers. According to the different uses and characters, the air carrier can be divided into different categories and all types of air carrier should be responsible for the damage caused by its servants or agents while they were engaged in representative activities; 2) the legal characters of the air carrier’s liability. The determination of air carrier’s liability is quite an important issue as air transport activities often lead to the coincidence of liabilities for breach of contract and liabilities of tort, in practice, most of the developed countries defined air carrier’s liability as tort liability, this paper also holds the same opinion; 3) the period of responsibility of air carrier, although warsaw system has provided different periods of responsibility for passenger and cargo transport, but it didn’t give out a clear standard for judgment of those periods of responsibility, in practice, the generally applicable standard is made by summaries of aviation cases of all countries; 4) the defenses of air carrier. warsaw system has provided vested defenses for air carrier, and those defenses has become particularly clear with the amendment of warsaw conventions, it has largely enhanced the unified application of warsaw conventions, and provided a better interest balance between air carrier and passenger.Chapter 3 and 4 is core chapters of the full text which discusses the issues of liability principles, liability limits and compensation of international air transport tort. Chapter 3 first analyzes the characters and functions of traditional liability principles and points out that only principles of presumption of fault and strict liability can be applied to the international air transport tort, this is also the liability principles adopted by warsaw system; second, chapter 3 discusses the liability limits system of warsaw system which is corresponding to the liability principles. The fundamental intention of establishment of liability limits in 1929 "Warsaw Convention" was to protect the interest of air carrier, however, this intention has caused fierce argument of the abolition of the liability limits between US-led developed countries and developing countries, ultimately, the 1999 "Montreal Convention" temporarily appeased the confrontation of the two camps by adoption of dual-gradient liability; Lastly chapter 3 analyzes the exceptions of the liability limits, points out that the liability limits is not unbreakable:when an accident is caused by willful misconduct of air carrier, the liability limits provided by warsaw system will not apply. Chapter 4 firstly discusses the facts of international air transport tort damage, points out that the facts presented in warsaw system are "accident" and "event". In theory and practice circle, there is no particularly concerned about the definition of "event", however, it is very complicate at defining "accident". In practice, the standards of determining "accident" are almost the same in different countries, but the "three elements standard" of United States is the most authoritative and representative one; Secondly chapter 4 analyzes the compensation range of international air transport tort damage. International air transport tort often leads to three types of damage and in those types; personal injury and property damage is undoubtedly covered in the compensation of warsaw conventions, but the issue of compensation for moral damage in the warsaw conventions is still not clear, relatively speaking, civil law countries generally considered to admit the compensation claim as long as the moral damage is "clear and direct" while common law countries believed that only the moral damage caused by physical harm is compensable and the pure moral damage is not within the compensation range of warsaw system; Lastly, Chapter 4 analyzes the character of compensation in international air transport tort. This paper holds that the character of compensation in warsaw system is protective and exclusive, "protective" refers to the protection of the interests of air carrier and passenger while "exclusive" means that when a plaintiffs personal injury is not considered as a compensable damage under the warsaw system, this plaintiff can no longer use domestic laws requiring the remedies for same damages. This is mainly determined by the uniform applicable targets of warsaw system.Chapter 5 is the sublime of the full text which discusses the jurisdiction and law application issues related to international air transport tort from three aspects:1) jurisdiction under warsaw system. The five jurisdictions under the warsaw system is mandatory, the parties can not choose other courts in any forms of agreement; 2) the applicable law of international air transport tort outside the warsaw system. This paper holds that the "lex loci delicti" and "proper law of tort" would be the applicable law in the area where warsaw system can not adjusted; 3) unique phenomenon of United States courts in the application of the 1929 "Warsaw Convention". From analyzing the phenomenon, this paper points out that even "lex loci delicti" and "proper law of tort" would still bring conflicts in adjusting international air transport tort outside the warsaw system, and in a long-term perspective, this problem can only be resolved by acceding to warsaw system.Chapter 6 is the conclusion and improved proposals of China’s air transport tort liability system, based on the foundation of whole analysis, this chapter mainly discusses three issues:first is the development tendency of international air transport tort, this paper summarized that in international air transport tort, its liability principles is more strict, its compensation range is more expand, its liability limits is looser and its subject of liability is more diversified; second is the application of warsaw conventions in China. According to China’s general provisions of the civil law, the 1999 "Montreal Convention" should be applied prior to other warsaw conventions when dealing with international air transport tort cases; last is the China’s air transport tort legislation. At present, although China’s current air transport tort legislation reflects some international trend, but there are still legislative inadequacies in liability principles, liability limits, liability constitution, compensation which should cause great attention in further legislation amendments... |
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