Studies On International Air Cargo Carrier Liability

This thesis studies the international air cargo carrier liability by analyzing relevant international treaties, legislation and judicial cases in different countries. This thesis focuses on theoretical issues which are relatively weak in China, such as the legislation history of international air convention, the legal status of air carrieres, the meaning of international air cargo transportation period, the method to decide carrier’s liability and set forth. This thesis also reviews the air cargo carrier liability regime in China, and supposes advicible suggestions to perfect the regime in China. The thesis compromises of five chapters.Chapter One reviews the provisions on international air cargo carrier liability regulated in the different international treaties, such as the "Warsaw System" and Montreal Convention This chapter introduces the legislation background, the theory and practical significance of the treaties, and compares the similarities and differences of the provisions of the treaties.Chapter Two discusses the legal status of the international air cargo carrier and international air cargo transportation period. The first section discusses the meaning of international air cargo carrier with referrenc to the provisions in international treaties and the relevant cases. The second section discusses the legal status of the international air freight forwarder. In the practice of international air cargo transport, the freight forwarder is likely to play the role of traditional agent and contracting carrier. The freight forwarder shall not be identified as a traditional agent arbitrarily; the legal status of freight forwarder shall be decided with reference to different factors such as the air waybill, the specific provisions of the contract, freight forwarders actual performance of the contract, the way of freight forwarders to receive the contract consideration and the commercial custom between the parties. The third section discusses the meaning of the international air transportation period, the major criterion to decide wether the cargo is in the international air transportation period is the carrier being in charge of the cargo.Chapter Three studies the method to decied the international air cargo carrier liability. The first section researches into the legal nature of international air waybill and analyzes the application of electronic air waybills. The second section studies the legal criterion to judge the cargo loss. International conventions have not provide d the meaning of "damage", "destruction", "lost", and "delay" of the cargo in a clear sense; the thesis quotes amount of legal cases to make clear the exact meaning of the terms metioned above. The third section researches into the principle of international air cargo carrier liability. International treaties provide the principle of carrier’s liability differently, Warsaw Convention provides the cargo carrier to bear the presumed liability; while Montreal Convention provides the cargo carrier to bear strict liability in the circumstance of cargo being damaged, destroyed, lost and presumed liability in the circumstance of cargo being delayed. The fourth section discusses the limited liability system of international air cargo carrier. The thesies studies the history of the carrier’s liability limit system, and focuses on the occasions where the carrier’s limited liability shall not be applied.Chapter Four discusses the international air cargo transport dispute settlement mechanism. The first section investigates the application of international aviation treaties. The application scope of international treaties and relation of international treaties shall be explicitly determined before the court apllies some treaty to slove related disputes. Three elements shall be met when the court applies the international aviation treaties: the transportation involved is international air transportation; the parties sue for the loss of goods; the loss involved occurs in air transport period. As to the latter question, the law shall be choiced in accordance with the general rules of international law. The second section discusses the litigants and accusation time. The consignor and consignee, the assignee of cargo rights, are usually regarded as the eligible plaintiff. At the same time, the servants or agents of carrier, continuous transport carrier, the contracting carrier, and the actual carrier could all be the defendant in the international air cargo transportation disputes. In addition, recent judicial practice reveals that the "two years period" provided by international aviation treaties is absolute and immutable. The third section discusses the courts jurisdiction power over the international air cargo cases. As provided by international treaties, plaintiff is entitled to sue either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. But there are different opinions in determining the meaning of the place mentioned above.Chapter Five reviews the international air cargo carrier liability system in China. The first section reviews the legal system of China’s domestic civil aviation law, especially the Chapter 9 of China’s Civil Aviation Act, which regulates both domestic and international air transport activities. With the development of aviation industry, some provisions of the Civil Aviation Act fail to meet the requirements of air transport practice. The second section examines the regulations about the air cargo carrier legal status in China and related judicial practice. According to Civil Aviation Law, only "public air transport enterprise" could be regarded as the air carrier, which fails to meet the development of the air transportation practice. Meanwhile, there are some defects when China’s courts try to determine the legal status of air cargo agents. The third section studies on China’s regulation of air cargo carrier liability and related judicial practice. Civil Aviation Act’s provisions on the air cargo airway bill are not as modern as tthose in Montreal Convention. On the other hand, China’s courts fail to determine the principle of attribution accurately, and the criteria to judge the loss of goods from time to time. The fourth section discusses China’s regulation on air cargo transport dispute resolution mechanism and related judicial practice. Civil Aviation Act fails to provide the jurisdiction of the court in air cargo transport disputes, and the non-litigation dispute resolution method. There are still flaws of China’s courts in determining the nature of air cargo transportation dispute, the law applicable to the case, the eligible litigation parties and litigation period.