몬트리얼 협약상 항공화물운송인의 책임 - 해상운송 및 도로운송 조약과의 비교법적 고찰

Abstract

The Montreal Convention (1999) has become effective in Kora as from 29 December 2007. In addition, “Chapter 6 Carriage by Air” of the Korean Commercial Code which was prepared based on the Montreal Convention will shortly be legislated. Therefore, Montreal Convention is playing a very important role in the Korean air transportation law. This article reviews the liability of a carrier under the Montreal Convention, in comparison with the Hague Visby Rules and UNCITRAL Convention on Contracts for the International Carriage of Goods wholly or party by Sea (“UNCITRAL Convention”) which are international conventions in respect of carriage by sea and CMR which is the international convention in respect of carriage by road. With regard to the identity of the party who is liable, the Montreal Convention has a unique provision relating to the liability of a successive carrier and also a provision that an actual carrier is jointly and severally liable with a contractual carrier. UNCITRAL Convention introduced, in lieu of an actual carrier, the concept of a maritime performing party who performs all or part of the obligations of a contractual carrier and imposes on the maritime performing party a joint and several liability with the contractual carrier. CMR has a separate provision for the liability of a successive carrier. With regard to the basis of liability, the Monteal Convention places an absolute liability on the carrier for the loss of or damage to a cargo and a fault liability for the delay in delivery. On the other hand, Hague Visby Rules and UNCITRAL Convention places a fault liability on a carrier. CMR places a liability which is in the middle of a fault liability and an absolute liability. With regard to the limits of liability, the Montreal Convention limits the liability of a carrier to 17 SDR per kilogram and this limit is unbreakable. The other conventions also have a provision for the limit of liability of a carrier and this limit is breakable in case of a wilful misconduct of a carrier. All the above conventions, except CMR, have a provision which renders an agreement of the parties to exempt or lessen the liability of a carrier null and void, while CMR also renders an agreement to increase the liability of a carrier null and void. In addition, the above conventions provide for limitation of actions for the period of one or two years, respectively, in order to resolve the disputes arising from the carriage. The foregoing international conventions are continuously developing. Due to the international nature of carriage, the change in the above international conventions has a great impact on the Korean transport law. Thus, it is required to be ceaselessly concerned about and to study the change in the international conventions on the transport law.