A Study On Carrier Liability Rules Of International Cargo Carriage By Air

In the1920s, there is a trend to uniform international transport rules. InternationalConvention for the Unification of Certain Rules of Law Relating to Bills of Lading of1924(Hague Rules) was adopted, which was a successful example of unifying nationalliability law and provided a sample for other mode of transportation. Complex issuesof private international law caused by the booming international air transport industry,requires the introduction of uniform private aviation law to eliminate conflicts of law.Under this trend, the Warsaw Convention of1929was drafted, which unified nationalliability rules in the field of international air transportation. At that time it was regardedas one of the most successful private international law regulating carrier liability.With the development of the international aviation industry, carrier liability rulesestablished by Warsaw Convention were tested and faced challenge. During the70yearssince Warsaw Convention entered into force, it had been revised for8times. Therefore,Warsaw Convention is coexistent with its protocols, and the current situation is contraryto the initial objective of unifying national air transport law. ICAO finally decided toabandon efforts to amend Warsaw Convention, and made a fresh start to draft a newconvention, and the achievement is Montreal Convention of1999. MontrealConvention has played an important role on the construction of the order ofinternational air transport law in the21st century. It also promoted the integration andmodernization of carrier liability rules of international air transport conventions.However, during the10years after Montreal Convention was adopted, new problemswere found in the field of cargo freight by air, which was unforeseen by legislators ofMontreal Convention.Warsaw system and Montreal Convention unified major legal issues in the field ofinternational carriage of goods by air. Those rules which cannot be unified by airconventions should be covered by conflict rules. However, conflicts also existed among these conventions, including the conflict between diverse international air transportconventions, the conflict between air transport conventions and multimodal transportconventions, as well as the conflict between air transport conventions and thoseconventions on other modes of transport. International Air transport Conventions withthe goal to eliminate conflicts of law, made norms more fragmented. The conflictsbetween air transport conventions bear the nature of treaty conflicts. Conflicts betweeninternational freight conventions are also fall in the scope of treaty conflicts.International Law Commission of the United Nations set up a working group to studythis issue in the context of fragmentation of international law. Exploring specificmethods to solve these treaty conflicts has practical and theoretical significance.Provisions of international air transport conventions concerning carrier liabilityare not exhaustive. On the one hand, those conventions as a compromise between civiland common law, developed and developing countries, intend to use some vaguewording; on the other hand, those conventions are lack of maneuverability. For example,Montreal Convention provides that a carrier is liable for the loss caused by an "incident",but the term of "incident" is not defined by Montreal Convention. As another exampleis that Montreal Convention requires the consignor report the damaged cargos to thecarrier, however Montreal convention does not clarify how to distinguish among"destruction","loss" and "damage". Those issues are not clarified by international airconventions and are explained by case law. International conventions on cargo transporthave been developed by jurisprudence.Since the Civil Aviation Law of China (1995) entered into force, the framework ofChina civil aviation legal system has been formed. Under the legal system, althoughmany regulations adjust carrier liability, those legal sources are not effectiveness. Theliability rules of cargo transportation in China Civil Aviation law should be revised.There are two ways to revise the rules of transportation of cargo in China CivilAviation law. First, comparing cargo transportation rules in Montreal Convention andChina Civil Aviation Law, and analyzing achievements and limitations of MontrealConvention to gain experience; second, researching on the theory and practice ofprivate international treaties binding on national courts to improve the system of applying and interpreting international air conventions in Chinese courts.