국제항공운송법의 연혁과 전망

It has already passed cir. 72 years since the coming into force of the International Convention for the Unification of Certain Rules Relating to International Carriage by Air and several subsequent modifications, additions, protocols, and privately-held agreements (collectively known as the Treaty, or System), adopted since then have long been the multinational treaty governing liability for damages or losses incurred during the transnational air flight. Originally the Warsaw Treaty was enacted to protect the new fledgling aviation industry from potentially disastrous results of judgments in large amount arising from the frequent air accidents at that time. The Treaty also has the purpose of providing international consistency in the claims arising from such accidents. In this sense the Warsaw Treaty is said to be one of the world's oldest and most successful general commercial international treaties. As aforementioned verbatim the Treaty has been subjected to partial amendments over the years at several different conferences and meetings. Almost all of the changes were made in an effort to address the U.S.'s objections to the low liability limits. Since under article 22(1) of the Warsaw Convention, the total damages allowed was 125,000 Poincare francs, or the equivalent of U.S. $8300, thus in the eyes of the United States, the Treaty set relatively low liability limits in cases of personal injury or death. Until recent developments, which have resulted in the Montreal Liability Convention, the United States had accepted only one of these modifications as adequate. That modification, however, was not an official governmental treaty modification, but rather the result of a private agreement reached in Montreal by the major commercial airlines. The companies agreed to strict liability and an increase in liability limits to $75,000 in international accident cases. While this agreement has served to keep the United States in the Montreal system until this time, it probably was not only irrelevant but also illegal. However, all the years of U.S. displeasure with the current system may be at an end. On October 30, 1995, the fifty year old International Air Transportation Association (IATA), in conjunction with the International Civil Aviation Organization (ICAO), adopted the IATA Intercarrier Agreement. This became the basis for a new international treaty. After several years of discussion and negotiations regarding the final terms of this new treaty, it was ratified and formally took effect as the Convention for the Unification of Certain Rules For International Carriage by Air (Montreal Liability Convention) on May 28, 1999. Montreal Liability Convention was came into force November 4, 2003 on the 60th day of the deposit of ratification to ICAO from the US as the 30th nation in September 5, 2003. In consideration of the expectation that the contracting states will increase by leaps and bounds into 100 and more ones, it is doomed that the Montreal Liability Convention will serve as a new set of rules that replaces Canada's version of the Warsaw Treaty in the near future. As to the Montreal Liability Convention it is true that there are some criticisms which raise the problem of lack of consistency in regulating damage recovery and of the undue influence from the US etc. However the Montreal Liability Convention is a modern instrument imbued with the new spirit of consumer protection, under which carriers provide passengers with practically absolute, unlimited, and assured liability in respect of death and injury, and consignors and consignees of cargo with a regime to which all sides have long been readily accustomed. It is well hoped that rapid ratification of the Montreal Liability Convention by all concerned and wise and unbiased counsel in its interpretation and application will ensure that the effects of the short-comings are virtually minimized and the new code will emulate and even surpass its distinguished predecessor in simplifying the solution of differences in international carriage by air throughout the world and providing justice and fairness to all involved.

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