Date of Award

2006

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Sompong Sucharitkul

Second Advisor

Chris N. Okeke

Third Advisor

Jon H. Sylvester

Abstract

The Warsaw Convention 1929, officially referred to as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, established and elaborated, as one of its major tenets, the principle of the air carrier's liability for damage caused to passengers, baggage and goods, and also for damage caused by delay.

The rules of the Warsaw Convention are being applied all over the world and have demonstrated their reliability and usefulness. The passenger knows that, wherever and whenever he flies, there is a certain degree of uniformity in the rules governing the carrier's liability, while the carrier, being aware of the extent of his liability, can make arrangements to insure himself against possible losses. It is therefore appropriate to examine the nature and the development of the legal grounds on which the air carrier's liability rests, and their impact on everyday practice.

Chinese aviation law regulations need to be modernized to correspond with global developments in the industry. As a first target, the low limitation of air damage recovery needs change, and more detailed implementing regulations are needed to determine the extent and quantum of damages caused by air accident. China needs to unify limits on liability regarding international carriage with those existing in other countries. This will certainly benefit both the aviation and insurance industries. Apart from the problem of low limitation, another important task is to clarify the interpretation of Article 17 of the Warsaw Convention 1929 and the Montreal Convention 1999, which is crucial to international air carrier's liability to passengers. This is the main purpose of the present dissertation. By suggesting that (1) China should interpret "accident" broadly to provide more, but reasonable protections to passengers; (2) China should adopt tripartite approach to interpret "from embarking to disembarking" to catch up with modem changes of civil aviation, and (3) China should not allow recovery for pure mental injuries but only to allow recovery of mental distress which flowing from a bodily injury to best serve the purpose of the Conventions. The author wishes to clarify some uncertainties of legal practice in the area of international air carrier's liability to passengers in China.

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