A Study On The Application Of Law In The Fifth Jurisdiction Of The Montreal Convention

The Fifth Jurisdiction,as set out in the Montreal Convention(hereinafter as “Convention”),has sparked heated debate and controversy at the outset.The fundamental reason for this is that,many nations argue that the development of the Fifth Jurisdiction is entirely for the protection of countries which offer a higher amount of compensation.That's why the Fifth Jurisdiction has been buckled a hat of the protection of "roaming the Americans".In fact,this view is not entirely correct.The pass of the Fifth Jurisdiction must have its rationality and necessity.By discussing the causes and development process of the Fifth Jurisdiction and the causes,we can find that,the Fifth Jurisdiction is the result of the common development of the economic reasons and the principle of protection for the interests of the weak.Therefore,the current direction of effort is not to exclude and oppose the Fifth Jurisdiction itself,but to learn how to take rational advantage of it.In order to have a clear understanding of the application of the Fifth Jurisdiction,it is necessary to first interpret the provisions of the Convention.Article 33,paragraph 2 of the Convention provides for the conditions of application of the Fifth Jurisdiction,but there are still more complex situations in practice,and it is necessary to interpret it in accordance with the provisions,and purpose of the Convention itself.We have to uphold the principle of protection for the interests of the weak,that is,keeping the protection of air travelers as the main line through the analysis.The paper is not classified here in accordance with the three applicable conditions stipulated in the Convention itself,but in accordance with the order in which the court applies the case from the initial determination to the final decision to apply the Fifth Jurisdiction.The applicable conditions are divided into four categories:(1)The prerequisite is international air transport;(2)Apply only to death or damage caused by damage;(3)The place of indictment is the primary and permanent residence of the air victim;(4)The carrier has a certain business activity in the area.The judicial practice in the problems may be more complex compared with pure explanations of the provisions of the Convention itself.In this part,cases of US courts are richer,which means that explanations of US judges in those cases can be cited in this paper to bring out several enlightenments.Through the interpretation of the relevant cases and the provisions of the Convention itself,the author explains the connections between Fifth Jurisdiction and the first four types of jurisdiction,and elaborates his own point of view on Fifth Jurisdiction and principle of non-convenience court.The main purpose of this paper is that our country can have a clearer understanding of the application of the Fifth Jurisdiction.The demand has become especially prominent since the emergence of Ma Meilan case in the March 29,2008.our courts should change their passive attitude towards the application of the Fifth Jurisdiction,on the contrary,they should take positive and correct measures to apply the Fifth Jurisdiction.Based on the analysis of the applicable conditions and the problems in practice of the Fifth Jurisdiction,in the light of the current situation of legislations and judicial practice in our country,this paper puts forward the countermeasures to solve the problems in the application of the Fifth Jurisdiction.To sum up,the structure of the paper is divided into four parts:First part:In this part,the author mainly elaborates the international aviation accident Fifth Jurisdiction.This chapter is divided into two sections;Section I mainly discusses the development of the Fifth Jurisdiction.In fact,the development of the Fifth Jurisdiction is not overnight,and its birth has gone through a slow process.From the four jurisdictions provided for in the Warsaw Convention,to the provisions of the Guatemalan Protocol,to the prototype of the Fifth Jurisdiction,and to the protection of air passengers in the IATA liability system,these changes are accompanied by the development of the international air transport industry.Therefore,in understanding the development of the Fifth Jurisdiction,we should only grasp the trends of the international air transport industry.Section II mainly deals with the reasons for the birth of the Fifth Jurisdiction.First of all,economic factors caused the competition between the carriers.In order to improve their competitiveness,the carriers will be more concerned about the interests of air travelers in the settlement of the dispute.The second reason is the embodiment of the principle of protecting the interests of the weak in private international law in aviation legislation.Although the Guatemalan Protocol has not entered into force,the Fifth Jurisdiction has finally been recognized in the Montreal Convention.Second part:This part makes deep interpretations of applicable conditions of the Fifth Jurisdiction.International air transport is the prerequisite for the application of the Fifth Jurisdiction.Under normal circumstances,international transport contains three cases.The first is the departure and destination of the carriage,respectively,in the territory of two different parties;the second is that the place of departure and destination are located in the territory of the same State,but there is an agreed place of stop in the territory of the other party;the third is that the place of departure and destination is located in the territory of the same State,but there is an agreed stop place in the territory of another non-member State.In the case of a particularly complex determination,the judges of the United States courts usually refer to the subjective intent of the parties,but such intentions must be clear,clear and unquestionable.Then,the Fifth Jurisdiction applies only to the loss of death or injury,and it is important to note that only those who are injured by physical injury are more likely to be supported.Again,it is the location of the main and permanent residence of the airline travelers and we should clarify that location should be a country rather than a region within a country.In addition,according to the United States judicial practice in the main and permanent residence of the identified trend of view,the judge in the decision will also refer to the subjective intentions of the parties.Finally,the carrier should have a certain business activity in the area,of which the applicable conditions were detailed stipulated in Montreal Convention.But there still exists many problems in practice.The paper begins with the cases,demonstrating that the Fifth Jurisdiction can be applied to the contracting carrier and the actual carrier.For a continuous carrier,the carrier will not,unless an accident occurs in the carriage it carries,assume relevant responsibilities,and then the Fifth Jurisdiction at this time will not apply to the carrier.Third part:This part mainly discusses problems in judicial practice when applying Fifth Jurisdiction.The author firstly studies the connection between Fifth Jurisdiction and other four jurisdictions.On one hand,they are parallel and compensatory.On the other hand,to some extent,they conflict with each other.Secondly,since academics have bigger dispute in the context of combined application of Fifth Jurisdiction and non-convenient court,the author has made a detailed discussion in one sole section.US court gave richer explanations on the issue,through cases we can find out that US courts applied both in the direction of protecting the airline travelers.At the same time,this paper put forward the standpoint that it is misunderstanding to think both as protecting “roaming the Americans”,because combined use of both can bring substantial fairness and should be generally applied.Forth part:This part mainly discusses the application of the Fifth Jurisdiction in our country.First of all,the author sorts out China's aviation jurisdiction laws and regulations.Secondly,the author points out the shortcomings of aviation jurisdiction in our current laws and regulations and judicial practice and the challenges in the current Internet booking.Finally,according to the shortcomings of the present situation,the paper puts forward three suggestions in combination with our national conditions.The first is to adhere to the correct legislative value orientations;second,Perfecting China's Civil Aviation Law and Its Supporting Laws and Regulations;third,actively and reasonably apply the Fifth Jurisdiction.