항공기 운항자의 지상 제3자의 손해에 대한 책임 - 로마협약 개정안 및 상법 항공운송편 제정안을 중심으로

Abstract

It is essential that the liability of the operator for damage to third parties on the surface caused by aircraft be regulated at international level. However, the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface of 1952 and the Montreal Protocol of 1978 did not have significant worldwide repercussions since few countries have ratified them. The cumulative result of the work by the ICAO Secretariat and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: “Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft”, and “Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties”. The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight. However, such liability is caped, based on the weight of the aircraft. It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support. Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits. The main issues on the former draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators’ strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability, that is, without the necessity of proof of fault. Such liability is caped, based on the weight of the aircraft. Beyond that, the operator is liable for all damages unless is proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person. The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. Korea has not ratified the Rome Convention and has not the national legislation on the liability of the operator for damage to third parties on the surface caused by aircraft. Now the Ministry of Justice is proceeding to make such legislation, and the draft revision of the Part VI the Carriage by Air of the Commercial Code has the provisions on the liability of the aircraft operator for damage to third parties on the surface. The main issues on the draft revision of the Commercial Code are relating to the liability for the injury of third party on the surface, the liability limit of the aircraft operator in respect of personal injury, the liability of the unlawful user of aircraft, and the advance payment.