Nowadays, an aircraft has been one of the most important transportation means because of rapid development of aeronautical techniques and globalization and air transport has been increased to a great extent. Disputes due to damage caused by an aircraft accident or operation happen so many times that it was necessary to make out laws and regulations to resolve them and they have been enacted as the form of international treaties or domestic laws which can be called the regime related to the liability of compensation for damages of air carrier and aircraft operator.
It consists of two legal systems internationally, one is the Warsaw System to regulate private legal problems in the process of air transport, including Warsaw Convention in 1929, Hague Protocol in 1955, Guadalajara Convention in 1961, Guatemala Protocol in 1971 and Montreal Protocol No. 1, 2, 3, 4 in 1975 and Montreal Convention was adopted to modify the Warsaw Convention in 1999 and it went into effect in 2003 over the world. The other is the Rome System to regulate the Legal Problems of compensation for damages to the third party who has not been in any legal relationship, including Rome Convention in 1933, Rome Convention in 1952, Montreal Protocol in 1978 and two Montreal Conventions in 2009. And most of the countries have their own domestic law to deal with private legal problems related to the air transport and aircraft operation.
Republic of Korea also has the Air Transport Act in Commercial Law which was enacted and gone into effect in 2011. The Air Transport Act in Commercial Law was enacted to regulate domestic carriage by air and damages to the third party which occur within the territorial area caused by aircraft operations. The Air Transport Act in Commercial Law has a good point of adopting the global standard of international conventions such as 1999 Montreal Convention to amend Warsaw System and 1978 Monrteal Convention to modify 1952 Rome Convention, but it also has a bad point of having the problems of those conventions. Therefore, there are some contents to be modified in the Air Transport Act in Commercial Law and the relevant international conventions. They are divided into two parts. One is related to the air carrier''s liability of compensation for damages and the other is for the aircraft operator''s liability of compenstaion for damages to the third party.
In the first place, there are some problems to be improved in the Air Transport Act in Commercial Law and the relevant international conventions in terms of some clauses for the air carrier''s liability of compensation for damages. Common things between the Air Transport Act in Commercial Law and the relevant international conventions are as follows. First, it is necessary to discuss legislating the definition of ''accident'' and ''in the course of any of the operations of embarking or disembarking'' to materialize air carrier''s liability of compensation for damages through referring to judgements and theories about them. In addition, the scope of ''bodily injury'' in the provisions should be interpreted it to encompass ''mental injury'', and in the long run the provision to clear that the ''mental injury'' can be compensated needs to be established. Second, it is desirable the clause in which the limited amount of air carrier''s liability due to damage caused by loss, damage or delay of baggage be modified to divide the case of loss or damage and the case of delay, because they are generally different from each other in terms of characteristics, keeping the standard of the present limited amount of liability respectively. Third, the unbreakable rule that can make the air carrier assert limitation of liability in case that he or she has intention to cause damages to freights should be amended not to permit limitation of liability of the carrier at the mentioned case, because it is not rational to permit it at the above case containing some demerits. Fourth, it is necessary to enact the Himalaya Clause to protect an independent contractor like the air freight forwarder functioning as a genuine mediator of the process of air transport. Fifth, the definition of delay needs to be enacted because it is important to materialize air carrier''s liability due to damage caused by delay and to make judgements about delay consistent. Sixth, the fifth jurisdiction in 1999 Montreal Convention is necessary to be modified permitting its application to the damage of baggage as well.
In addition, there are some peculiar things in the Air Transport Act in Commercial Law, which are as follows. First, it is necessary to modify the clause in which air carrier''s liability due to damage caused by delay of passengers is divided into two cases. One is the domestic carriage by air and the other is the international carriage by air, and the limited amount of air carrier''s liability in the former is eight times less than that of the latter because they are not so helpful to air carriers but too disadvantageous to aircraft passengers. Therefore, it is desirable to increase the limited amount of liability to the level of a quarter or half of the one in case of international air transport. Second, it is good to make the provision to definite the period of determining to converse SDR into national currency for helping to resolve disputes. Third, it is necessary to delete the provision of making the effect that receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition, because it does not make any substantial effect. Moreover, the requirement of preventing extinction of a claim for damages "Ak-Wui" is desirable to be changed into the term of "Sa-Hae- Hang-Ui" because the term of "Ak-Wui" generally means the case not knowing some facts in Korean private law and the term of "Sa-Hae-Hang-Ui" has more similar meaning to "fraud" in Montreal Convention(1999). Fourth, in the Air Transport Act in Commercial Law, 2 years limitation of actions prevents any claim related to liability of compensation for damages of an air carrier in excess of the period, but it is necessary to be modified the claim can be admitted passing the period if there are inevitable reasons to excess the period. Fifth, it is necessary to discuss amendment the clause which make the right of disposition of the air carrier ceases on arrival of the cargo at the place of destination, so that it stops at the later period like time of consignee''s receipt of the cargo, because it is useful to help a consignor and the carriage agreement of Korean main air transport corporations provide that.
There are also some problems to be reformed in the Air Transport Act in Commercial Law and the relevant international conventions about some clauses for the aircraft operator''s liability of compensation for damages to the third party caused by aircraft operation. Common things between the Air Transport Act in Commercial Law and the relevant international conventions are as follows. First, in the Rome Convention and Air Transport Act in Commercial Law the aircraft operator shall be liable to damages caused by terrorism such as hijacking an aircraft, attacking an aircraft and utilizing it as means of attack like the incident of 9?11. Some argue that it is too harsh to aircraft operators and irrational, but given there are some legal duties of preventing terrorism to them and in respect of helping the damaged, it does not look too harsh or irrational. However, it should be amended into exempting aircraft operator''s liability when the terrorism using of an aircraft by well-organized terrorists group happens like 9?11 disaster in view of balancing the interest between the aircraft operator and the third party damaged. Second, considering the large scale of the damage caused by the aircraft accident or operation, it is likely that many people damaged can be faced with a financial crisis, and the provision of advance payments for air carrier''s liability also needs to be applied to the case of aircraft operator''s liability.
In addition, there are some unique things in the Air Transport Act in Commercial Law, which are as follows. First, the limited amount of the aircraft operator''s liability needs to be improved becuase it is too low to compensate adequately to the third party damaged owing to the aircraft operation. Therefore, it is necessary to make the provision that the operator shall be liable to damages of the third party if he or she can''t prove there is any fault about them in excess of the present limited amount of liability, and it seems to be the most appropriate in respect of balancing the interest between the aircraft operator and the third party damaged. Second, until the 1978 Montreal Protocol, the aircraft operator shall be liable to the damaged who exist in land or water except air. However, because the damaged in the aircraft caused by another aircraft''s operation are not different from those in land or water, the term of ''on the surface'' should be eliminated in the term of ''third parties on the surface'' in order to make the damaged in the aircraft caused by the operation of another aircraft compensable. Third, the process of limiting liability of the aircraft''s operator to the third party should comply with the one in the Korean ‘Act of Limiting the Shipowner''s Liability.’ It is efficient in some extent that the existing regulations can be used without efforts to make the new law, but it is sometimes difficult to apply provisions in the Law to the process of limiting liability of the aircraft''s operator. Therefore, some supplemental provisions about applying the Law to it need to be established in order to enhance the efficiency of application of law.
It is desired that the Air Transport Act in Commercial Law including the clauses related to liability of compensation for damages of the air carrier and aircraft operator be developed continually by sufficient discussion about the necessity of amending it as the ones mentioned above.