Liability aspects of air transport between Taiwan, Hong Kong and Mainland China

Despite the hitherto unsettled political and legal status of Taiwan, air transportation between Taiwan and Mainland China has experienced tremendous growth since 1987. To date, this air transport has been effected through the use of an intermediate stop station in Hong Kong, in order that both States may avoid the recognition of the other as the legitimate "Chinese Government". However, Hong Kong will revert to the PRC in 1997. As a result, the issue of nonstop flights between Taiwan and the Mainland takes on an added urgency.; This issue is not merely political. In terms of air carrier liability, Taiwan is party to the Warsaw Convention and the Warsaw Convention as Amended by the Hague Protocol, only through its tenuous link with Mainland China. Is the Convention applicable to Taiwan in this case? A number of arguments favoring applicability of the Convention are discussed and found to be wanting. In the alternative, the principle of conflict of laws is proposed as an applicable solution. Since Taiwan and the PRC have a civil law system while Hong Kong has a common law system, the respective legal regulations governing damage compensation in aviation cases differ. The case of liability following a hijacking is used to demonstrate how regulations of the three jurisdictions differ significantly. This leads to a serious problem, namely, "forum shopping". The fact that judicial assistance is not yet practiced between the three jurisdictions creates a further problem in that decisions coming from the different courts cannot be recognized and enforced in the other jurisdictions. In light of all of the foregoing, the existing legal systems cannot adequately address the legal problems of air carrier liability in this region.; As a result of these inadequacies, an alternative mechanism for resolving the issue of air carriers' liability is suggested. This suggested pragmatic approach may also be found applicable for updating existing air transport legal systems elsewhere in the world.