Aircraft Law: Liability Essay, Research Paper

Aircraft Law: Liability

The problems regarding aircraft liability in the international realm

primarily relate to resolving issues of legal status of international airline

passengers and cargo. The issues are defined as follows: sovereignty over

airspace, the impact of aerospace craft on the environment, the role of

aerospace technology in the international system, weather modification, air

safety and international aviation relations. Remarkable growth and development

in the range of air transport services and technology earned the sector a

distinctive international character. The latter is the most outstanding feature

of the industry which allowed “every part of the world [to be reached] within a

few hours of every other and, in doing so ? brought about a revolution in world

trade, in business contacts, and in methods of diplomacy.” (1)

The principles of air law have been evolving at a rapid pace since the

beginning of the Twenty-first Century, however, they also remain inadequate to

meet the needs of contemporary society. Concern for this immense growth and the

accompanying implications produced the impetus to devise a means to ensure

orderly and appropriate development. Thus, “The general policy of the world

community in regard to emerging issues of air law demands the maintenance and

promotion of a balance between technological advance in aviation and the

preservation of a wholesome environment by providing adequate policies and

prescriptions.” (2)

The initial governing treaty passed in 1929 is known as the Warsaw

Convention. This is a multilateral treaty among nations that governs

international air transportation. It was based on the idea that because

aviation was in its infancy, there was a risk of destroying the carrier airline

if there was a major crash. Therefore, it limits the liability for carriers.

Unfortunately, this treaty also limited the liability for damages to injured

persons. Because of the latter clause, the U.S. renounced its participation and

proceeded to join the international aviation community in entering into the

Montreal Agreement of 1965.

The Montreal Agreement was a special contract authorized by the Warsaw

Convention which states that the parties can agree to engage in certain

activities only if there is a consensus. The agreement also raised the

limitation of liability, instituted absolute liability for any accident, and

developed a criteria for recovery for which the injured party has to prove that

the carrier was guilty of willful misconduct. This agreement only applies to

flights that start, stop or end or those which connect with an itinerary that

stops, starts or ends in the United States. (3)

A third and more comprehensive convention was the Convention on

International Civil Aviation of 1944 also known as the Chicago Convention. This

convention set out the general principles of international civil aviation and

established a framework of international coordination, cooperation and

regulation of services. It also addressed non-agenda items such as the

technical aspects of air transportation affecting the environment including

engine fuel emission and noise generated by aircraft engines.

The predominant external factor addressed in the aforementioned treaties

is the influence wielded by the existence of powerful aviation-centered

countries as opposed to the smaller, less self-sufficient aviation nation states.

One of the most important and controversial arenas concerning air law

liability is that of airlines privately owned by governments. Considering this

fact, there is a tremendous impact on the government and privately owned

airlines to compete with each other for air space. As such, there are many

controversies associated with which country has jurisdiction over liability in

airspace, common standards of safety, worldwide air traffic, and especially, who

is responsible for payment of damages resulting from airline litigation.

The internal factors politicizing the arenas of aircraft liability are

the economic competition issues resulting from anti-trust regulation of airlines.

The traditional air law has not kept pace with problems associated with mass

air transportation, the impact of global economy, the impact of aerospace

industry on property rights and privacy, and noise and pollution. However, the

industry has instituted important regulation governing monopolies within nations

solely based on sovereign control of airspace. This is particularly evidenced in

the doctrine arising out of the Chicago Convention.

The Warsaw Convention, the subsequent Chicago Convention and the

Montreal Agreement serve as a balancing act for limiting aircraft liability

within sovereign states. Therefore, the issues related to expansion of the role

of national law in adjudicating claims arising in the course of international

transportation are under the purview of these related conventions and treaties.

Furthermore, the convention realized that the international aviation policy of

the future has to encompass major problems of mass air transportation and the

increasing degree of interdependence within the aviation community. As such,

the existing conventions must rely on the responsibility of air traffic control

services and regulations. Liability would then be based on proof of fault,

however it would be limited in nature, and the convention would facilitate quick

settlement of disputes placing less of a burden on the developing states.

WORKS CITED

1. Goh, Jeffrey. Problems of Transnational Regulation: A Case Study of

Aircraft Noise Regulation in the European Community. 23 Transp. L.J. 277

Transportation Law Journal. University of Denver, 1995, 278.

2.Bhatt, S.. Aviation, Environment and World Order. Humanities Press,

1980. Pp. 181. Index. 78 A.J.I.L. 1003 The American Society of International

Law/The American Journal International Law, 1984, p. 1005.

3. Olin, Michael S.. The Legal and Regulatory Environment: Safety and Labor.

20 Transp. L.J. 114 Transportation Law Journal. University of Denver, 1991, p.

114.

4. Whalen, Thomas J.. Warsaw Convention: Giemulla, Schmid and Ehlers. Kluwer

Law and Taxation Publishers, 1992. 21 Transp. L.J. 523 Transportation Law

Journal. University of Denver, 1993.

5.Warsaw Convention. Text, 1929. Http://www.iasl.mcgill.ca/air_

_law/warsaw.html