Inequality in Aviation Law

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Research Proposal: 1. Title: Legal and institutional obstacles to international commercial aviation cargo claims against shippers, consignees and parties claiming under their title. 2. Background and outline of the research problem: The fact that the exchange of goods and services is an important aspect of human life is beyond controversy; that activity dates back to history as attested by “trade by barter” during the stone ages; in modern times, countries of the world are not equally endowed with human and natural resources, more importantly, the economic principle espoused by comparative advantage on one hand, the free market economy and globalization on the other, has made international trade and inter-governmental commercial transactions, an indispensable aspect of human life. The aviation industry could aptly be described as the “gate-way to the global economy” due to the value and volume of goods carried by air which accounts for a sizeable bulk of trade and commerce between nations of the world. To lend credence to the above assertion, it is necessary to emphasize the fact that Trade and Commerce have become internationalized which of course makes carriage of goods by air, indispensable. The air transport industry plays a major role in world economy; the industry is fundamental for growth and development as well as a springboard for quality human life, a necessary element to maintain a smooth flow of air transportation in order to reap the immense benefits thereof, is to ensure equitable and a balanced terms of contract to the parties and stake holders involved in the global transaction. The extant inequality amongst the parties in aviation transportation transactions is the principal issue which this research sets out to critically examine. 3. Literature review and reasons for choosing the topic As highlighted above to the effect that comparative advantage and globalization has internationalized trade and commerce, carriage of goods by air is one of the veritable vehicle or conduit pipe towards the actualization of international trade, however, there are concerns across the globe regarding the almost insurmountable legal and institutional hurdles faced by cargo interests when cargo loss or damage arises; the multiplicity of the rules militating against successful cargo claims either by litigation or through Alternative Dispute Resolution methods are diverse, nay, various jurisdictions apply various rules embodied in the contract of air carriage. Though it is an unassailable fact that international trade is facilitated through aviation but there is no uniform rule regulating the global contract of air carriage, in effect, rather than have one rule applicable internationally, three carriage regimes namely the Warsaw, Guadalajara and Montreal as well as several amendments in the form of protocols are in operation depending on whichever of the rule a cargo carrier chooses and which country has ratified any of the conventions; cargo interests thus have no choice than abide with the carriers’ choice, aside from above, many of the provisions of the afore stated carriage regimes were drafted in a way that present difficulties of judicial interpretation; be that as it may, the practical application of the rules concurrently had fettered and continue to do incalculable damages to free trade, this development in essence engenders uncertainty and prompts avoidable and needless litigations worldwide. It is on this note that this research intends to embark on a beneath-the-surface analysis of aviation cargo claims so as to bring to the fore the anomalous state of affairs, ipso facto, fill the knowledge interstitial and proceed to make recommendations which hopefully, would redress the myriad of shortcomings of the current global aviation law and practice. 4. Research questions In order to gain insight into the lopsided state of international air carriage laws, the following questions shall be investigated in the course of this research: What is aviation cargo claims, what warrants them, what is their nature, source, scope and complexities; why is the onerous burden of proof placed on cargo owners when all the time when damage or loss arises, cargo is not in their custody but in the custody of carrier, warehouse or port authorities; specifically, why is that before a cargo interest can validly institute a meritorious proceedings against the carrier for unlimited sum, he must prove fault on the part of the carrier ditto its servants or agents acting during and within the scope of their employment, what is “documentation” “long room” “demurrage” and “port surcharge” in aviation transactions, does the foregoing concepts delay cargo shipping and delivery and do they add to the cost of aviation which are ultimately on-passed to hapless consumers and end users of goods transported via air, why is it that the carrier who is in position to weigh or measure cargo, issue air waybill and cargo receipt in that behalf but when dispute arises as to weight of cargo, the cargo owner is irreversibly obliged to prove the weight of the cargo, does the application of “utmost good faith” principle in aviation insurance contracts engender a balanced relationship between the insurer and insured; what is proximate cause, it is settled law, that where there is a loss there is a claim, but does the practical application of restitio in integrum concept in aviation insurance really effective and in the best interest of cargo? What are obstacles to aviation cargo claims, does obstacles to aviation cargo claims inhibits trade between persons, organizations and nation-states and if the answer is in the affirmative, what efforts are being made internationally to achieve a uniform rule with respect to mitigating the negative effect of obstacles to aviation cargo claims on international trade and commerce, what is “carriers’ limitation of liability” and “package limitation” and in whose interest were they inserted into contract of air carriage and what is their effect on cargo interest, why is that the conventions did not prescribe a specific form for “declaration of special interest” with respect to value of cargo, why is that if “declaration of special interest” is made orally it is invalid, if entered in any other space aside from the designated place on the waybill, it is a nullity, why is that a declaration lawfully made which is unlikely to be seen by the carrier because it appears in an odd place in the waybill authored and issued by the carrier is invalid, what is forum non convenience, ditto “considerable deference” “private interest factors” and “public interest factors”? When a cargo claim arises, which of the extant regimes governs the cause of action and who has the right or title to initiate aviation claims and on whom does the burden of liability for loss or damage to cargo rests, what is the length of time allowed to initiate aviation cargo claims; is there uniformity in the time frame allowed internationally, is the said time length equitable or justified in all circumstances warranting their continued imposition, and have they improved or worsen the economic and socio well-being of cargo interests; why is it that there is imposition of “notice period” on cargo interest within which to file cargo claims, the expiry of which said notice period, a suit contemplated by cargo interest no matter how meritorious, becomes statute barred, what is the use of notice period, what is their purpose or utility in aviation transactions, do they frustrate genuine cargo claims and do they deny litigants of their constitutional right of access to courts, why is the economic loss occasioned by delay of aircrafts is almost foreclosed to claims, is this the law or custom and practice and for whose benefit is this clause inserted into air carriage contracts? Are there other dispute resolution mechanisms aside from litigation to resolve aviation cargo claims; if so, are the said mechanisms equitable and justifiable in all circumstances, and why is that the conventions governing air carriage did not expressly accord recognition to the settlement of disputes between cargo interests and carriers by arbitration and yet prescribed arbitration of disputes between carriers, what is the meaning of “exclusive jurisdiction clause” and “choice of location for Arbitration sole determination by the carrier,” does the right of access to court of choice by cargo interest or Arbitration hampered by “exclusive jurisdiction clause” and “unilateral choice of location for Arbitration by the carrier”, does enforcement of arbitration clauses in support of air waybill go against third parties claiming under the title of shippers and consignees especially where there are sub-bailment to which the concerned shipper or consignee is not a party ab initio, given the conflicting provisions of the conventions, could a plaintiff recover court costs, interests and other incidental expenses of litigation from a carrier and does the time tested doctrine of law: verba fortius acci piuntur contra proferentem apply to aviation cases? 5. Research design The research is non-empirical; it shall be based on conceptual analysis and the review of relevant literature; and aviation trade by its nature being a cross jurisdictional transaction, the study shall majorly be premised on comparative and critical analysis of established legal principles, rules and doctrines. 6. Research methodology Qualitative research approach shall be used the research being a non-empirical one; for the requisite data and information, Conventions, Treaties, Case Law Reports, Journals, Internet, Articles, Historical records, and Textbooks on Aviation Law and global trade shall be used. The contents of the above materials shall be subjected to critical analysis. 7. Structure of Thesis Chapters Chapter 1 : Introduction Chapter 2 : Obstacles arising from carriers’ acts Chapter 3 : Obstacles attributable to airport authorities, warehouses, cargo custodians etc Chapter 4 : Obstacles posed by insurance companies for shippers’ and consignees’ Chapter 5 : Obstacles for third parties claiming under shippers and consignees titles Chapter 6 : International trade and Aviation Law Chapter 7 : Steps towards unification of International Aviation Law Chapter 8 : Conclusion Delineations and limitations This research shall only consider cargo claims carried by common carriers via international air routes and covered by the carrier’s Air Waybill. 8. References 8.1: Legislation Chicago Convention on International Civil Aviation 1944 Guadalajara Convention 1961 Guatemala City Protocol 1971 Hague Protocol 1955 Montreal Additional Protocol Number 1975 Montreal Convention 1999 Montreal Protocol 1978 Rome Convention 1952 Warsaw Convention 1929 8.2: Case Law Antwerp United Diamond BVBA v Air Europe [1993] 4 All ER 469 Connaught Lab. Limitedv. British Airways,Ontario Court of Appeals (2005) 77 OR 3(d) 34 Corocraft Ltd v Pan-American World Airways [1969] QB 616, 631 Delta Air Lines, Inc. v. Chimet, S.P.A. (3d Cir. (Pa.) Aug. 30, 2010) Gatewhite Ltd. et.al. v. Iberia Lineas Aeras de Espena S.A., [1989] 1 All ER 944, Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd [1970] 1 WLR 1262 Goldman v Thai Airways International Ltd [1983] 3 All ER 693 Green Computer ABv.Federal Express Corp. et al.,2004 FCA 111 Hosaka v. United Airlines Inc 305 F3d 989 Markham Meat Industries Supplies Inc.v.Air France,(1998) No.98-BN-01639 (OCGD) MDSI Mobile Data Solutions Inc.v.Federal Express,2003 BCCA 9 Morris v CW Martin & Sons Ltd [1966] 1 QB 716 Muoneke v. Compagnie Nationale Air France 2009 WL 1311579 (C.A.5) (Tex) Nuvo Electronics Inc.v.London Assurance et al.,2000 CanLII 22388. O’gray Import & Export v. British Airways PLC (D. Md. May 4, 2007). Notice Proctor v Jetway Aviation (1982) 2 NSWLR 264, 271 (SC (NSW)); Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corp [1980] 3 All ER 359 Sed contra Rustenburg Platinum Mines Ltd v South African Airways [1979] 1 Lloyd’s Rep 19 SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd's Rep 288 (CA (NSW)) Tasman Pulp & Paper Co Ltd v Brambles JB O’Loghlen Ltd, [1981] 2 NZLR 225 Timeny v British Airways plc (1991) 56 SASR 287 Uniden v. Federal Express US District Court, MDPenn, 20 Avi 17, 433 UPS Supply Chain Solutions, Inc. v. American Airlines, Inc. (N.D. Ill. Aug. 14, 2009). Notice Westminster Bank v. Imperial Airways King’s Bench Division, XLLR, 1936, 242 8.3: Literature Books I. H. Ph. Diederiks - Verschoor, An Introduction to Air Law, 8th revised edition, The Netherlands: Kluwer Law International, 2006. P. S. Dempsey & M. Milde, International Air Carrier Liablity: The Montreal Convention of 1999 (Montreal: McGill University, Institute of Air and Space Law, 2005) P.P.C. Haanappel, The Law and Policy of Air Space and Outer Space, The Hague: Kluwer Law International, 2003. Paul B. Larsen, John Gillick, Joseph Sweeney: Aviation Law: Cases, Laws and Related Sources: Second Edition Martinus Nijhoff Publishers, 2012 Peter Martin, et al., Air Law, Vol. 1, 4th edition, London: Butterworths, 1977. Journals Air & Space Law - The Netherlands: Kluwer Law International Air & Space Lawyer - American Bar Association, USA Air Law Review - New York University, USA Annals of Air and Space Law - Institute and Centre of Air and Space Law, Faculty of Law, McGill University, Montreal, Canada B. Allan I. Mendelsohn, “The Warsaw Convention and Where We Are Today‟, Journal of Air Law and Commerce, Vol. 62, 1996 - 1997, pp. 1071 - 1082 Frederick B. Lacey, “Recent Developments in the Warsaw Convention‟, Journal of Air Law and Commerce, Vol. 33, 1967, pp. 385 - 401. Issues in Aviation Law & Policy - DePaul University College of Law, Illinois, USA J. C. Batra, “Modernization of the Warsaw System - Montreal 1999‟, Journal of Air Law and Commerce, Vol. 65, 1999 - 2000, pp. 429 - 444. Journal of Air Law and Commerce - Southern Methodist University School of Law, Texas Westlaw Journal: Aviation - Nicholas Sullivan, Thomson Reuters, USA Paul Stephen Dempsey: The Role of the International Civil Aviation Organization on Deregulation, Discrimination, and Dispute Resolution‟, Journal of Air Law and Commerce, Vol. 52, 1986 - 1987. Internet www.icao.org www.admiraltylaw.com www.aviation.lawyer.com www.aviationlawadvisor.com 1
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