International aviation tort liability study
|School||Southwest University of Political Science|
|Keywords||international aviation tort liability aviation law|
International aviation tort liability system is a branch of modern tort law, andalso an important part of modern international aviation law. Since the invention ofaircraft in early 20th century, with the development of aerial science and technology,international aviation tort liability system has become a particular and energetic areaof law. The results of damage accident of aviation tort is characterized by unforeseenand catastrophe. Though aviation tort law is an important part of international aviationprivate law and torts of civil law, not enough importance has been attached to thetheory of international aviation tort liability in the academe of law. This dissertationstudies on basic theoretic problems of international aviation tort liability, by means ofhermeneutic of law, historical method, comparative study, legal sociology, precedents,as well as researching internal and international laws together.This dissertation Consists of eight chapters, 300,000 words approximately.Chapter One deliberated on basic problems of international aviation tort liability.Elementary concepts and theoretical issues relating to international aviation tortliability are examined, such as civil aircraft and its nationality, sovereignty of airspace, international aviation, etc. This chapter analyses the concept and category ofinternational aviation tort; probes into legal characteristics of international aviationtort; expounds on the nature of international air carriers’ liability, and the concurrenttheory of contract liability and tort liability; reviews the development of Warsawsystem and evolvement of Roman Convention; expatiated on characteristics ofinternational aviation tort, which is special, international, complex and havingconflicts of laws. In conclusion, liability of international air carriers is the concurrenceof tort liability and contract liability, and it tends towards absolute tort liability.Chapter Two is given to criterion of international aviation tort liability. Bycomparing concepts regarding the criterion of international aviation tort liability,addressing criterion of international aviation tort liability, the author holds that fault liability and strict liability are fundamental principles of the imputation ofinternational aviation tort liability, and the criterion tends to be stricter. The authoralso maintains that presumptive tort doctrine is essentially based on fault inimputation, in despite of removing the burden of proof from plaintiff; it could be seenas an exception of fault liability. The rule of res ipsa loquitur, which is widely used inaviation accidents and aviation tort law, is a rule of proof in common law; it is not arule of imputation in aviation tort liability. The principle of strict liability is relativelypopular in areas like the liability of international air carriers, the liability on damageby foreign aircrafts to third parties on the surface, and the aviation product liability.Chapter Three is about international aviation tortious act and person liable.According to categories of aviation tortious act, this chapter discusses tortious act ininternational aviation carriage, tortious act by foreign aircrafts towards third parties onthe surface, midair collisions of aircrafts, aviation product tortious act and tortious actof governmental inspection & testing and air-control etc. and expounded on personliable of those aviation tortious act respectively. Referring to judicial cases, thischapter pays attention to accident of personal injury and event of baggage or cargodamage involved in international aviation carriage. Each concepts, differencesbetween and requirements are analyzed, as well as the differences and relationshipbetween personal injury accident and hijiaking or harming between passengers. Theauthor introduced various types of air carriers in practice; studies on the theory ofseparating injurious act from person liable, which is based on the theory ofemployer’s liability and agency’s liability; analyses that the liability period of carriersis different between personal injury and baggage or cargo damage; explains thatsubjects liable of damages by foreign aircrafts to third parties on the surface includesoperator of the aircraft, possessor of the aircraft, insurer and security; introducescauses and categories of aircrafts midair collisions; analyzes multiple liabilityrelationships of aircrafts midair collisions; discusses, combining general principle ofproduct liability, product liability during the process of aircrafts’ produce, sale andmaintenance; explores aircrafts’ manufacturer, designer, maintain, repairman andaccessory supplier in tort liabilities involving defective product; introduces the requirement of aircrafts in airworthiness and crashworthiness; analyzes conditionsof defective design, defective manufacture, and failure or inadequacy of warning orinstructions in aviation products; examines tort liability involving state or government,one is the inspection and testing liability of aviation products relating to airworthinesscontrol, the other is the tort liability regarding air control.Chapter Four is on damage and the injuried in international aviation tort. In thischapter, the author expounded on the aviation accident as facts of damage, and theessential of international aviation tortious damage; explores four kinds of damages, ie.personal injury, mental injury, property damage and damage of delay; explains thatdamage of tort and the injuried are identical, while the injuried and the subject ofcompensation right are distinguished; analyzes the basic sorts of direct injuried andindirect injuried. In the author’s view, the direct injuried in the infringement of rightof life is twoness, including the person died and his next-of kin. The specialness offetus as the in juried and the injuried in aviation environment tort are also dealt within this chapter.Chapter Five covers causation of international aviation tort liability. Bydiscussing the concept of causation, analyzing various theories on determining thecausation, and examining ways of the application of causation, the author comes to aconclusion that the adequate cause theory could be applicable to general aviation tortliability. This theory determines causation of facts and causation of law, on the basisof distinguishing between cause of facts and cause of law. Normzweck and theadequate cause theory can be alongside and be supplementary to each other. Whendetermining causation in special cases, whether there is the adequate cause isfundamental and pre-conditional, and whether it is in line with the aim of law issupplementary.Chapter Six is involved with defenses of international aviation tort liability. Thischapter studies on the facts of defenses and its development in international aviationtort liability, in aspects of general theory of tort liability defenses, person liable, partyinjured, third person, Act of God, casus fortuitus, the cause unidentified, and so on.The author discusses commons and distinctions between defenses of aviation tort liability and defenses of general tort liability, paying attention to the trends ofdefenses of aviation tort liability, and its challenge towards traditional tort law theory.In conclusion, the scope of defenses would be narrower and narrower, in the trends ofstricter criterion of liability.Chapter Seven expounds on the compensation of international aviation tort.Based on the value aim and limit liability of international aviation tort compensation,combining legislation and practice in the P. R. of China, the author studies on thecompensation to personal injury, compensation to mental injury, compensation toproperty damage and compensation to damage of delay. In the author’s opinion, tortcompensation is a sort of civil liability, and also a sort of obligation of compensation.The value of international aviation tort compensation should be in pursuit of thebalance between justice and efficiency, and the harmony of recouping and punishing.In case of conflicts between justice and efficiency, the value of justice should be inpriority. Doctrines of compensation are full compensation doctrine, propertycompensation doctrine, equity doctrine and limit liability doctrine. The authorconsiders limit liability as unjust. Several crises of Warsaw System since itsestablishment were the crisises of limit liability in the final analysis. MontrealConvention canceled limit liability on personal injury. That is in pursuit of the valueaim of justice. As to the current law of China, it’s unreasonable to adoptdiscriminating limit liability between international air carrier and domestic air carrier.Specific extent, item and standard of compensation in international aviation tort are tobe determined in compliance with lex fori. Compensation to personal injury could bedivided into compensation to the common injuried, compensation to the disabled andcompensation to the died. The author focuses on the nature, calculation, right of claim,grounds and legislative evolution of death compensation in China. Pointing out themisunderstanding in theory, legislation and judicial practice in respect of deathcompensation, the author considers that death compensation is both compensation tomental injury and compensation to property damage, the double-injuried theoryshould be adopted to explain the ground of right to claim for death compensation, andthe discrimination between urban and rural should be abandoned in calculating death compensation. After examining recent judicial practice about compensation to mentalinjury, the author holds that disability compensation and death compensation arecompensation to mental injury in nature, in function of compensating the mentaldistress or losing life of the injuried. Both compensation to property damage andcompensation to damage of delay are limit liability; specific extent and calculationstandard of the compensation conforms to lex fori.Chapter Eight is devoted to the development of international aviation tortliability and its enlightening to the P. R. of China. In this chapter, the author analyzesthe tendency of internationalization, concludes that the criterion of liability is stricter,the constitutive requirements of liability is more concise, defenses facts is less, extentof compensation is larger, limit liability is looser, and compensation liability is moresocialized. This dissertation ends with legislative suggestion to the system of aviationtort liability of P. R. C.