Legal and institutional obstructions to international commercial air power lading claims against shippers, consignees and parties claiming under their rubric.
2. Background and lineation of the research job:
The fact that the exchange of goods and services is an of import facet of human life is beyond contention ; that activity dates back to history as attested by “trade by barter” during the rock ages ; in modern times, states of the universe are non every bit endowed with human and natural resources, more significantly, the economic rule espoused by comparative advantage on one manus, the free market economic system and globalisation on the other, has made international trade and inter-governmental commercial minutess, an indispensable facet of human life.
The air power industry could competently be described as the “gate-way to the planetary economy” due to the value and volume of goods carried by air which accounts for a ample majority of trade and commercialism between states of the universe. To impart acceptance to the above averment, it is necessary to stress the fact that Trade and Commerce have become internationalized which of class makes passenger car of goods by air, indispensable.
The air conveyance industry plays a major function in universe economic system ; the industry is cardinal for growing and development every bit good as a springboard for quality human life, a necessary component to keep a smooth flow of air transit in order to harvest the huge benefits thereof, is to guarantee just and a balanced footings of contract to the parties and interest holders involved in the planetary dealing. The extant inequality amongst the parties in air power transit minutess is the chief issue which this research sets out to critically analyze.
3.Literature reappraisal and grounds for taking the subject
As highlighted above to the consequence that comparative advantage and globalisation has internationalized trade and commercialism, passenger car of goods by air is one of the regular vehicle or conduit pipe towards the realization of international trade, nevertheless, there are concerns across the Earth sing the about unsurmountable legal and institutional hurdlings faced by lading involvements when lading loss or harm arises ; the multiplicity of the regulations militating against successful lading claims either by judicial proceeding or through Alternative Dispute Resolution methods are diverse,nay, assorted legal powers apply assorted regulations embodied in the contract of air passenger car.
Though it is an impregnable fact that international trade is facilitated through air power but there is no unvarying regulation modulating the planetary contract of air passenger car, in consequence, instead than hold one regulation applicable internationally, three passenger car governments viz. the Warsaw, Guadalajara and Montreal every bit good as several amendments in the signifier of protocols are in operation depending on whichever of the regulation a lading bearer chooses and which state has ratified any of the conventions ; lading involvements therefore have no pick than abide with the carriers’ pick, aside from above, many of the commissariats of the afore stated passenger car governments were drafted in a manner that present troubles of judicial reading ; be that as it may, the practical application of the regulations at the same time had fettered and go on to make incalculable amendss to free trade, this development in kernel engenders uncertainness and prompts evitable and gratuitous judicial proceedings worldwide. It is on this note that this research intends to ship on a beneath-the-surface analysis of air power lading claims so as to convey to the bow the anomalous province of personal businesss,ipso facto, make full the cognition interstitial and continue to do recommendations which hopefully, would right the myriad of defects of the current planetary air power jurisprudence and pattern.
4. Research inquiries
In order to derive penetration into the lopsided province of international air passenger car Torahs, the undermentioned inquiries shall be investigated in the class of this research:
What is air power lading claims, what warrants them, what is their nature, beginning, range and complexnesss ; why is the burdensome load of cogent evidence placed on lading proprietors when all the clip when harm or loss arises, lading is non in their detention but in the detention of bearer, warehouse or port governments ; specifically, why is that before a lading involvement can validly establish a meritable proceedings against the bearer for limitless amount, he must turn out mistake on the portion of the bearer ditto its retainers or agents moving during and within the range of their employment, what is “documentation” “long room” “demurrage” and “port surcharge” in air power minutess, does the foregoing constructs delay lading transportation and bringing and do they add to the cost of air power which are finally on-passed to hapless consumers and terminal users of goods transported via air, why is it that the bearer who is in place to weigh or mensurate lading, issue air bill of lading and lading reception in that behalf but when difference arises as to weight of lading, the lading proprietor is irreversibly obliged to turn out the weight of the lading, does the application of “utmost good faith” rule in air power insurance contracts engender a balanced relationship between the insurance company and insured ; what is proximate cause, it is settled jurisprudence, that where there is a loss there is a claim, but does the practical application ofrestitio in integrumconstruct in air power insurance truly effectual and in the best involvement of lading?
What are obstructions to aviation lading claims, does obstructions to aviation lading claims inhibits trade between individuals, organisations and nation-states and if the reply is in the affirmatory, what attempts are being made internationally to accomplish a unvarying regulation with regard to extenuating the negative consequence of obstructions to aviation lading claims on international trade and commercialism, what is “carriers’ restriction of liability” and “package limitation” and in whose involvement were they inserted into contract of air passenger car and what is their consequence on lading involvement, why is that the conventions did non order a specific signifier for “declaration of particular interest” with regard to value of lading, why is that if “declaration of particular interest” is made orally it is invalid, if entered in any other infinite aside from the designated topographic point on the bill of lading, it is a nothingness, why is that a declaration legitimately made which is improbable to be seen by the bearer because it appears in an uneven topographic point in the bill of lading authored and issued by the bearer is invalid, what isforum non convenience,ditto “considerable deference” “private involvement factors” and “public involvement factors” ?
When a lading claim arises, which of the extant governments governs the cause of action and who has the right or rubric to originate air power claims and on whom does the load of liability for loss or harm to cargo remainders, what is the length of clip allowed to originate air power lading claims ; is there uniformity in the clip frame allowed internationally, is the said clip length just or justified in all fortunes justifying their continued infliction, and have they improved or decline the economic and socio wellbeing of lading involvements ; why is it that there is infliction of “notice period” on lading involvement within which to register lading claims, the termination of which said notice period, a suit contemplated by lading involvement no affair how meritable, becomes codified barred, what is the usage of notice period, what is their intent or public-service corporation in air power minutess, do they thwart echt lading claims and do they deny litigators of their constitutional right of entree to tribunals, why is the economic loss occasioned by hold of aircrafts is about foreclosed to claims, is this the jurisprudence or usage and pattern and for whose benefit is this clause inserted into air passenger car contracts?
Are at that place other difference declaration mechanisms aside from judicial proceeding to decide air power lading claims ; if so, are the said mechanisms just and justifiable in all fortunes, and why is that the conventions regulating air passenger car did non expressly accord acknowledgment to the colony of differences between lading involvements and bearers by arbitration and yet prescribed arbitration of differences between bearers, what is the significance of “exclusive legal power clause” and “choice of location for Arbitration exclusive finding by the bearer, ” does the right of entree to tribunal of pick by lading involvement or Arbitration hampered by “exclusive legal power clause” and “unilateral pick of location for Arbitration by the carrier” , does enforcement of arbitration clauses in support of air bill of lading travel against 3rd parties claiming under the rubric of shippers and consignees particularly where there are sub-bailment to which the concerned shipper or consignee is non a partyBachelor of Arts initio,given the conflicting commissariats of the conventions, could a plaintiff recover tribunal costs, involvements and other incidental disbursals of judicial proceeding from a bearer and does the clip tested philosophy of jurisprudence:verba fortiusacci piuntur Contra proferentemapply to air power instances?
5. Research design
The research is non-empirical ; it shall be based on conceptual analysis and the reappraisal of relevant literature ; and air power trade by its nature being a cross jurisdictional dealing, the survey shall majorly be premised on comparative and critical analysis of established legal rules, regulations and philosophies.
6. Research methodological analysis
Qualitative research attack shall be used the research being a non-empirical one ; for the needed informations and information, Conventions, Treaties, Case Law Reports, Journals, Internet, Articles, Historical records, and Textbooks on Aviation Law and planetary trade shall be used. The contents of the above stuffs shall be subjected to critical analysis.
7. Structure of Thesis
Chapter 1: Introduction
Chapter 2: Obstacles originating from carriers’ Acts of the Apostless
Chapter 3: Obstacles attributable to airport governments, warehouses, lading keepers etc
Chapter 4: Obstacles posed by insurance companies for shippers’ and consignees’
Chapter 5: Obstacles for 3rd parties claiming under shippers and consignees rubrics
Chapter 6: International trade and Aviation Law
Chapter 7: Stairss towards fusion of International Aviation Law
Chapter 8: Decision
Word pictures and restrictions
This research shall merely see lading claims carried by common bearers via international air paths and covered by the carrier’s Air Waybill.
Chicago Convention on International Civil Aviation 1944
Guadalajara Convention 1961
Guatemala City Protocol 1971
Hague Protocol 1955
Montreal Additional Protocol Number 1975
Montreal Convention 1999
Montreal Protocol 1978
Rome Convention 1952
Warsaw Convention 1929
8.2: Case Law
Antwerp United Diamond BVBA v Air Europe[ 1993 ] 4 All ER 469
Connaught Lab. LimitedV.British Air passages,Ontario Court of Appeals ( 2005 ) 77 OR 3 ( vitamin D ) 34
Corocraft Ltd v Pan-American World Airways[ 1969 ] QB 616, 631
Delta Air Lines, Inc. v. Chimet, S.P.A.( 3d Cir. ( Pa. ) Aug. 30, 2010 )
Gatewhite Ltd. et.al. v. Iberia Lineas Aeras de Espena S.A. , [ 1989 ] 1 All ER 944,
Gilchrist Watt & A ; Sanderson Pty Ltd V York Products Pty Ltd[ 1970 ] 1 WLR 1262
Goldman v Thai Airways International Ltd[ 1983 ] 3 All ER 693
Green Computer ABV.Federal Express Corp. et al. ,2004 FCA 111
Hosaka v. United Airlines Inc 305 F3d 989
Markham Meat Industries Supplies Inc.V.Air France,( 1998 ) No.98-BN-01639 ( OCGD )
MDSI Mobile Data Solutions Inc.V.Federal Express,2003 BCCA 9
Morris V CW Martin & A ; Sons Ltd[ 1966 ] 1 QB 716
Muoneke v. Compagnie Nationale Air France2009 WL 1311579 ( C.A.5 ) ( Tex )
Nuvo Electronics Inc.V.London Assurance et al. ,2000 CanLII 22388.
O’gray Import & A ; Export v. British Airways PLC( D. Md. May 4, 2007 ) . Notice
Proctor v Jetway Aviation (1982 ) 2 NSWLR 264, 271 ( SC ( NSW ) ) ;
Rothmans of Pall Mall ( Overseas ) LtdVSaudi Arabian Airlines Corp[ 1980 ] 3 All ER 359
Sed Contra Rustenburg Platinum Mines Ltd v South African Airways[ 1979 ] 1 Lloyd’s Rep 19
SS Pharmaceutical Co Ltd V Qantas Airways Ltd[ 1991 ] 1 Lloyd ‘s Rep 288 ( CA ( NSW ) )
Tasman Pulp & A ; Paper Co Ltd V Brambles JB O’Loghlen Ltd, [ 1981 ] 2 NZLR 225
Timeny v British Airways plc( 1991 ) 56 SASR 287
Uniden v. Federal ExpressUS District Court, MDPenn, 20 Avi 17, 433
UPS Supply Chain Solutions, Inc. v. American Airlines, Inc.( N.D. Ill. Aug. 14, 2009 ) . Notice
Westminster Bank v. Imperial AirwaysKing’s Bench Division, XLLR, 1936, 242
I. H. Ph. Diederiks – Verschoor,An Introduction to Air Law, 8th revised edition, The Netherlands: Kluwer Law International, 2006.
P. S. Dempsey & A ; M. Milde, International Air Carrier Liablity: The Montreal Convention of 1999 ( Montreal: McGill University, Institute of Air and Space Law, 2005 )
P.P.C. Haanappel,The Law and Policy of Air Space and Outer Space, The Hague: Kluwer Law International, 2003.
Paul B. Larsen, John Gillick, Joseph Sweeney: Aviation Law: Cases, Laws and Related Beginnings: Second Edition Martinus Nijhoff Publishers, 2012
Peter Martin, et al. ,Air Law, Vol. 1, 4th edition, London: Butterworths, 1977.
Air & A ; Space Law – The Netherlands: Kluwer Law International
Air & A ; Space Lawyer – American Bar Association, USA
Air Law Review – New York University, USA
Annalss of Air and Space Law – Institute and Centre of Air and Space Law, Faculty of Law, McGill University, Montreal, Canada
B. Allan I. Mendelsohn, “The Warsaw Convention and Where We Are TodayaˆY ,Journal of Air Law and Commerce, Vol. 62, 1996 – 1997, pp. 1071 – 1082
Frederick B. Lacey, “Recent Developments in the Warsaw ConventionaˆY ,Journal of Air Law and Commerce, Vol. 33, 1967, pp. 385 – 401.
Issues in Aviation Law & A ; Policy – DePaul University College of Law, Illinois, USA
J. C. Batra, “Modernization of the Warsaw System – Montreal 1999aˆY ,Journal of Air Law and Commerce, Vol. 65, 1999 – 2000, pp. 429 – 444.
Journal of Air Law and Commerce – Southern Methodist University School of Law, Texas Westlaw Journal: Aviation – Nicholas Sullivan, Thomson Reuters, USA
Paul Stephen Dempsey: The Role of the International Civil Aviation Organization on Deregulation, Discrimination, and Dispute ResolutionaˆY ,Journal of Air Law and Commerce, Vol. 52, 1986 – 1987.