Comparative Research On Damages System Between Cross-strait Civil Aviation

This dissertation which is on the Comparative Research on Damages Systembetween Cross-Strait Civil Aviation is divided into six chapters in addition tointroduction and conclusion.The first chapter mainly discusses the sources of law of the cross-strait civilaviation, apart from the their respective civil aviation legislation of Taiwan andMainland, and related matching administrative regulations, administrative rules andregulatory documents, there are some agreements signed such as "Minutes of Talks onCross-Strait charter flights ","Cross-Strait Air Transport Agreement " and " theSupplementary Agreement on Cross-Strait Air Transport ".In the second chapter, damages of air passenger transport across the TaiwanStrait will be focused on. In practice, the respective rights and obligations of thecarriers and the passengers are usually governed by the passenger transport contract.Contractual and tort liability will concur when the passengers incur hurt or death inthe course of transportation often occurs, under which circumstances, the victim canchoose one as basis of claims. The carrier will assume liability for the personal injuryor death of the passengers arising from the events on the aircraft or during theirtaking-off or landing. The limits of liability for damage are provided both in Mainlandand Taiwan, while the amount of the limit in the latter is much more than the former.There is a case in favor of moral damages in Mainland, while it is not found inTaiwan.If injury or death is due to the health reasons or fault of the passenger’s, theresponsibility of the carrier will be reduced or exempted. In addition, if the injury iscaused by the aviation personnels or a third person, then the carrier may recover forthe loss after assumption of the liability.The carrier should bear the responsibility for the loss of passengers caused by thedelay. Unless otherwise provided by the transaction usages, the carrier’s liability is limited to necessary expenses of the passengers due to the delay. At the same time,the carrier may claim and invoke the limit of liability under the law.The third chapter concentrates on damages for the cross-strait air cargotransportation. And like passenger transport, contractual and tort liability will concurwhen the cargo incurs loss in the course of air cargo transportation, under whichcircumstances, the victim can choose one as basis of claims. The carrier shouldassume responsibility "during the air transport" which refers to the entire period inwhich the consigned baggage and cargoes are in the control of the carrier. The limitsof liability for damage are provided both in Mainland and Taiwan, while the amountof the limit in the latter is much more than the former.Of course, even if the cargos incur loss "during the air transport" goods a loss,the responsibility of the carrier still can be reduced or exempted under certaincircumstances such as the fault of the consignors. In addition, the consignors orconsignees should raise objection to the carrier within a certain period after findingthe consigned cargoes’ loss, otherwise will risk losing rights. And the objection periodin Taiwan is shorter than in the mainland.If the carrier does not deliver the cargos in reasonable or specially agreed periodto the destination and result in loss, then the carrier should bear the responsibility fortransport delays. in this regard, the consignors or consignees need to prove their lossand the necessary link between the delays and the loss.In air cargo transport, the statute of limitations of cargo loss or delay in mainlandis2years, and1year in Taiwan.The fourth chapter mainly addresses damages for the baggage of the passenger inthe cross-strait air transport. Most of the damages rule for the baggage of thepassenger is the same with that of cargo transport. The carrier shall be liable for thedestruction or loss of，or delay of the baggage of the passenger，if the occurrence tookplace on board the civil aircraft or in the course of any of the operations of embarkingon or disembarking from the civil aircraft of the passenger. And the objection periodin Taiwan is shorter than in the mainland. The fifth chapter mainly deals with liability for damage to third parties on the(water) surface. Liability for damage to third parties on the (water) Surface is aspecial chapter of "Civil Aviation Law" in Mainland, and Taiwan does not explicitlyuse the concept of "third party", but that liability regime is still in existence in Taiwan.Because of the high risk of air transport, as long as the third party incureddamage, no matter whether the owners or operators of the aircraft had the intention ornegligence, they shall be liable for such damage.As to who shall assume the responsibility, the legislation in mainland stressedthe operator of the civil aircraft, and Taiwan stressed the owner of the civil aircraft. inaddition, Any person on the（water）surface who suffers death or personal injury ordamage to property caused by a civil aircraft in flight or by any person or thing fallingthere from shall be entitled to compensation. The exemptions of liability in Taiwanregion are more stringent than the mainland. As to the amount of the liability, it willbe governed by general tort liability without limit or exemptions. That is, if the victimcan prove that they suffered actual losses, a full and adequate compensation will beclaimed and the operators or owners of the civil aircraft have no right to ask forlimitation of liability.In order to protect the interests of victims, the legislation of both cross-straitprovides that the operator of civil aircraft should cover insurance on the third party onthe ground or secure a corresponding guarantee for liability, and the victim of theinjury or damage can take legal action directly against the insurer or guarantor andhave the right to priorities for payments of indemnities. of course, the insurer orguarantor can contest against the legal action taken by the victim directly against them.As to the exercise of right, the effective period for legal actions taken by the thirdparty for indemnities for injuries or damage is two years both in Mainland and Taiwan,counting from the day the injury or damage occurs. The period should not exceedthree years under any circumstances in Mainland, while it can extend to ten yearsunder special circumstances in Taiwan.The sixth chapter addresses the jurisdiction and applicable law of damages ofcivil aviation across the Taiwan Strait.“Plaintiff accommodated to defendant” principle is a principle both stipulated in exercise of jurisdiction over the civil andcommercial matters arising from the direct flight of cross-strait civil aviation relationsby the Cross-Strait courts. As to the jurisdictional basis, there are many bases as such:the place where the contract is signed or performed, the subject of the action is located,the defendant’s detainable property is located, the infringing act takes place, or therepresentative agency, branch or business agent is located. Meanwhile, agreement tojurisdiction and the jurisdiction of the respondent’s appearance without objection arealso allowed both in Cross-Strait courts, only some differences in the requirement forsuch jurisdiction.The securement, transfer and lost of the ownership of civil aircraft is governedby the law of the registration of civil aircraft in Mainland and Taiwan. As to theapplicable law of civil air transport contracts, principle of party autonomy is bothrecognized in Mainland and Taiwan. Without such choice, the principle of the mostsiginificant relationship place will be applied in Mainland, while alternativeconnecting factor will be applied in Taiwan. As to the applicable law of tort liability,the provisions of the mainland are more flexible than that of Taiwan.