Study On Aircraft's Lessor Liability For Aviation Tort

As the development of air technology change quickly,air transport plays an indispensable role in modern transportation,especially in international long-distance transportation because of its fast and safe characteristics,growing volume of passenger transport and freight traffic increased demand of air transport capacity.An airline relies on various methods of financing for its aircraft.This reliance stems from the fact that an aircraft is a very expensive equipment and it is not always conceivable for an airline to rely on its cash reserves to buy the aircraft.From the many financing sources available to air operators,leasing has become one of the most important instruments to finance the acquisition of aircraft and resolved conflicting issues between satisfying a market need and capital shortage in a large part.Simultaneously,nowadays,with the rapid development of air transportation,the problems of aviation tort risk come,such as damage to the passengers and damage to third parties on the ground.After the accident,aircraft lessors would be viewed as potential 'deep pocket' defendants by claimant even if they don't attach themselves to the management of the aircraft directly.Aviation tort come in two basic types:tort for damages to passengers and tort for damages caused by aircraft to third parties.This article provides a comprehensive analysis of the lessor liability for aviation tort under the international law and applicable national legislation.Additionally,this article will provide some legal opinion in aspect of China Civil Air Law and pay attention to the legal mechanismsavailable to the lessors in avoiding or reducing their liability for aviation tort.Excluding the introduction part and the conclusion part,this article consists of four parts:The first part discusses the role of lessors in aircraft leasing transactions.Firstly,the first section discusses the nature of the aircraft leasing transaction,and concludes that the aircraft leasing is a financing method with guarantee function which meets the demand of the aviation market.Secondly,on the basis of the first section,the second section starts with the analysis of the rights and obligations of the lessor in the two basic forms of transaction to clear the position and role of the lessor in the aircraft leasing transaction.First,the lessor is a financier,which provides a source of funding for the airlines to set up and optimize the fleet.Secondly,the lessor does not participate in the operation of the aircraft after commencement of the lease.The lessor's retention of ownership of the aircraft or the right of inspection in the lease agreement does not mean that the lessor has control right over the aircraft.Control right is a very important concept for this article.It may become a key factor to determine the lessor's liability for air tort under the relevant laws and regulations.The second part discusses the liability risk the lessor faces in the relevant liability rules which governs disputes of air transport tort.First of all,because of international and foreign-related characteristics of air transport,the international community has formulated a unified international convention in order to coordinate the application of various domestic laws,that is,the current Warsaw-Montreal system.Therefore,the first section of this part focuses on the level of international law.Within the scope of application of the Warsaw-Montreal Convention rules,when the injured passenger or his right representative chooses to bring damages lawsuit to the lessor other than the carrier,can the lessor invoke the exclusivity of the Convention so as to avoid becoming liable? The second section focuses on the analysis of domestic law level,in the position where Warsaw-Montreal system is inapplicable,taking the United States as an example,which is a major aviation country and has advanced tort liability law,starting from relevant cases to discuss the responsibility status of lessors under federal and state legislation.Among them,because most of the relevant tort rules in the United States were born from common law principles,the study of the status of Lessors in the United States liability rules has a certain reference value for understanding the risk of lessor tort liability under the laws of other common law countries.The third part discusses the liability risk the lessor faces in the relevant liability rules which regulates liability for damage sustained by third party on the ground(water).First of all,just as air transport is governed by a special Warsaw-Montreal system to coordinate the conflict of application of domestic law,the international community also has a unified attempt to regulates liability for damage sustained by third party on the ground(water),that is,the Rome Convention system and its achievements of modernization.However,because these conventions had less success than expected,the settlement of air tort disputes of third parties mainly depend on the domestic laws of various countries.Therefore,the first section of this part mainly summarizes the variation trend of the lessor liability as owner in the Rome Convention of 1952 and its two major achievements of modernization,and analyses the rationality of this trend.The second section lists the legal rules which may cause the liability risk of lessor in three major aviation countries at the level of domestic law,and finally summarizes the current legislation rules that imposes liability on aircraft owners in the world based on doctrine of liability fixation.The fourth part puts forward the legal thinking on the protection of aircraft lessors.At present,on the one hand,the development and prosperity of China's aircraft leasing industry can almost be said to drive the development of civil aviation industry and even the entire national economy.On the other hand,China's aircraft leasing companies are rapidly rising and occupying an important position in the world aircraft leasing market.Therefore,in order to reduce the risk of tort liability the aircraft lessors face,this part provides legal opinion from two aspects to protect aircraft lessors: first,reviewing the current legislation of our country,analyzing the legal rules that may cause the lessors liability,and putting forward judicial and legislative perfecting suggestions,in an attempt to provide a good legal safeguard for aircraft lessors who provide financing.Secondly,under the background of ourcountry's aircraft lessor going abroad and going to the world,this article puts forward specific suggestions for the lessor in compensation clause and insurance clause in the aircraft leasing agreement to prevent the lessor's assets from reducing in the risk of liability litigation.