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초록· 키워드
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The original Convention was intended as a limitation upon carrier liability. As to personal injuries, delegates were concerned with aviation accidents not everyday torts or injuries, and certainly not passenger upon passenger assaults. The concerns at that time were with major disasters and the potential devastating effect such events could have on the infant international aviation industry. Indeed, various comments by delegates throughout the course of the subsequent protocols and conventions related to the Warsaw scheme specifically indicate that “accident” was not intended to cover such incidents.
The liability protection of Article 17 of the Warsaw Convention was conceived as a balance between development of the air industry and the protection of passengers who might suffer injuries during their travels. In the 1970's and 1980's, the courts responded to hijackings, terrorist attacks, and bombings on board international aircrafts by imposing liability for passenger injuries caused by these “accidents.”
At the turn of the twenty-first century, the courts are again responding to the rise in violent incidents aboard aircrafts by extending liability for “accidents” caused by the violent intentional acts of passengers. The rulings in Wallace, Tsevas, and Langadinos strike the proper balance between the rights of passengers and the responsibilities of air carriers.
These decisions properly place the burden on the airlines to eliminate the circumstances and conditions that give rise to disruptive and dangerous passenger behavior. The Wallace decision also expands an airline's li ability to include events occurring on board the aircraft, imposing a liability regime that encompasses more than the accident required for a Warsaw Convention violation. A clearer definition of accident is needed to avoid confusion over Article 17's application to co-passenger torts aboard aircraft. This is especially true in light of the split among the various courts of appeals and district courts that have dealt with this issue.
The Saks decision fails to fully clarify the scope of “accident,” especially as to whether there must be an unexpected or unusual aircraft operation, or risk unique to air travel for carrier liability. Further compounding the problem is the suggestion by the Supreme Court in Tseng that an Article 17 accident encompasses a routine security search, even when the search is not unreasonable or contrary to procedures. The Second Circuit's recent decision in Wallace v. Korean Airlines is especially disconcerting, as it holds a carrier absolutely liable for passenger upon passenger torts. In that case, the court strained to find carrier complicity, taking the term “accident” far beyond its original purpose or intention. The decision also places carrier liability under a “risk” analysis, and grounds that liability on circumstances far beyond those which would be imposed upon other common carriers.
Absent a textual amendment, in keeping with the purpose and objectives of the Convention, a proper analysis requires a determination of: (1) whether the cause of the injury was an unusual or unexpected event external to the passenger; (2) whether the event was an abnormal operation of the aircraft; and(3) whether the event was the proximate cause of the injury. The abnormal operation of the aircraft element can be further evaluated by assessing whether the event constituted a unique risk related to air travel. Until otherwise clarified through express language in the Convention, this approach is consistent with the limited nature of carrier liability, as well as with [*968] modern concepts of liability under the Convention. While the tendency of courts to improperly apply “accident” to passenger upon passenger misconduct may be deemed by some as only a minor glitch in the overall scheme of injury compensation for international aviation claimants, it raises the fundamental question of whether monetary limits and elimination of fault based concepts underthe Warsaw convention have continued vitality in modern air travel.
The liability protection of Article 17 of the Warsaw Convention was conceived as a balance between development of the air industry and the protection of passengers who might suffer injuries during their travels. In the 1970's and 1980's, the courts responded to hijackings, terrorist attacks, and bombings on board international aircrafts by imposing liability for passenger injuries caused by these “accidents.”
At the turn of the twenty-first century, the courts are again responding to the rise in violent incidents aboard aircrafts by extending liability for “accidents” caused by the violent intentional acts of passengers. The rulings in Wallace, Tsevas, and Langadinos strike the proper balance between the rights of passengers and the responsibilities of air carriers.
These decisions properly place the burden on the airlines to eliminate the circumstances and conditions that give rise to disruptive and dangerous passenger behavior. The Wallace decision also expands an airline's li ability to include events occurring on board the aircraft, imposing a liability regime that encompasses more than the accident required for a Warsaw Convention violation. A clearer definition of accident is needed to avoid confusion over Article 17's application to co-passenger torts aboard aircraft. This is especially true in light of the split among the various courts of appeals and district courts that have dealt with this issue.
The Saks decision fails to fully clarify the scope of “accident,” especially as to whether there must be an unexpected or unusual aircraft operation, or risk unique to air travel for carrier liability. Further compounding the problem is the suggestion by the Supreme Court in Tseng that an Article 17 accident encompasses a routine security search, even when the search is not unreasonable or contrary to procedures. The Second Circuit's recent decision in Wallace v. Korean Airlines is especially disconcerting, as it holds a carrier absolutely liable for passenger upon passenger torts. In that case, the court strained to find carrier complicity, taking the term “accident” far beyond its original purpose or intention. The decision also places carrier liability under a “risk” analysis, and grounds that liability on circumstances far beyond those which would be imposed upon other common carriers.
Absent a textual amendment, in keeping with the purpose and objectives of the Convention, a proper analysis requires a determination of: (1) whether the cause of the injury was an unusual or unexpected event external to the passenger; (2) whether the event was an abnormal operation of the aircraft; and(3) whether the event was the proximate cause of the injury. The abnormal operation of the aircraft element can be further evaluated by assessing whether the event constituted a unique risk related to air travel. Until otherwise clarified through express language in the Convention, this approach is consistent with the limited nature of carrier liability, as well as with [*968] modern concepts of liability under the Convention. While the tendency of courts to improperly apply “accident” to passenger upon passenger misconduct may be deemed by some as only a minor glitch in the overall scheme of injury compensation for international aviation claimants, it raises the fundamental question of whether monetary limits and elimination of fault based concepts underthe Warsaw convention have continued vitality in modern air travel.
목차
Ⅰ. 서론
Ⅱ. 바르샤바협약상 사고의 구성요소와 구제배타성
Ⅲ. 사고의 정의와 범주에 관한 미국의 판례 분석
Ⅳ. Wallace v. Korean Air 사건판결의 사고개념 확대와 그 비판
Ⅴ. 결론
참고문헌
〈Abstract〉
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