여객의 연착 및 수하물에 관한 운송인의 책임제한 배제사유

Abstract

The Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter referred to ‘Montreal Convention’) was formally took effect on May 28, 1999. Montreal 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. The Montreal Convention Article 22(5) provides “The foregoing provisions of paragraphs 1 and 2 (limits of liability in relation to delay and baggage) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also provided that such servant or agent was acting within the scope of its employment.” The concept of ‘recklessly and with knowledge’ was defined in the Warsaw Convention of 1929, as having the concept of ‘wilful misconduct.’ Based upon the comparative analysis, this paper points out the difference between the concept of ‘wilful misconduct’ and ‘recklessly and with knowledge’, and between the concept of ‘recklessly and with knowledge’ and ‘quasi-intent’ or ‘gross negligence’ in the Convention and that of the Korean private law system. Herewith the interpretation of ‘recklessly and with knowledge’ is critical for the carrier to be benefited from the limitation of liability provisions. There have been the two ways to interpret the terms, that is subjective test to read the carriers' recognition itself and the objective test to read the carrier's considering the circumstances of loss occurred. Considering the drafters' intention to be admitted to exception of carrier's liability limitation to protect the damaged parties concerned, the latter test will be more desirable to realize the legal purpose to exclude the application of the limit of liability provisions. Montreal Convention will serve as a new set of rules that replaces Canada's version of the Warsaw Convention in the near future. Additionally this paper emphasizes the importance of the unification in the interpretation of the provisions of the Conventions world wide.