개정 상법상 항공화물운송인의 책임

Abstract

On November 2011, the revised Korean Commercial Code (hereinafter "the Law") has been effected and it contains new additional Chapter for the air carrier's legal liabilities in air transport. Given that South Korea plays main role in international airline industry, emerging the new code for this area has a remarkable meaning and this is very lucrative result. Also by locating the air carrier's private liability regulations into Commercial Code which is one of the fundamental laws, this is very unique and the first legislative model in the world legislative history. Most rules were transplanted from "Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, 28 May 1999" (hereinafter "Montreal Convention 1999" or "the Convention"). However, there are some particular clauses supplant the Convention as below:First of all, the Law indicates the type of the cargo damage simply as "loss and damage" not like "destruction, loss, damage" in Montreal Convention 1999. Furthermore, the notification of damage to carrier is limited only in case of "partial loss or damage". From this clause, in case that carrier already know the fact of total lose or damage of cargo, a required notification pursuant to the law is not necessary. Consequently, this could protect the interest of consumer not carrier. Secondly, the Law provides the limited liability of cargo as 17 SDR per one kilogram of the mattered shipment. This, regretfully, is not fully reflect the current rules of Montreal Convention 1999, because the amount in the convention has been elevated to 19 SDR due to inflation of prices. Therefore, this article suggest that it is better to entrust the clause about the amount of limited liability from national law to international convention in order to improve the mobility to national law. Third, according to the Law, it is opaque that whether the limited liability is still applied even though the damage was occurred from the results of 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. This is from the different legislation between the Law and Convention and should be reviewed in the future revision. In addition to the above, there are some more issues to consider such as the matter of Right of Disposition of Cargo and the matter of Limitation of Action. All of the above issues are based on difference between the Law and the Convention. For the unification of international carriage by air, the national laws should have same contents with the Convention but if the Law search the better way to protect public interest and build it by legislation, those will be reflected into convention in the future. Anyhow, South Korea has begun to take the steps into searching and building in private law in carriage of goods by air with new Commercial Code.