The main purpose of the paper is to discuss law application concerning mental damage compensation to air passengers, and to offer solutions. Though Legal Positivism, the paper analyzes the legislative background and purpose of damage compensation to air passengers in Warsaw System; through comparisons, it discusses the legislative and judicial theories and practices concerning mental damage compensation in China and the US. The study finds that, regulations in the Warsaw System concerning mental damage compensation to air passengers have blurred boundaries, leading to difficulties in application. Though as major aviation powers, China and the US also have strong disagreements on this issue in their relevant laws and judicial precedents at home, also leading to difficulties in application. This paper suggests timely amendments to the Warsaw System, so as to avoid forum shopping, which may disturb law application and tarnish the authority of the System.
| Published in | International Journal of Education, Culture and Society (Volume 3, Issue 1) |
| DOI | 10.11648/j.ijecs.20180301.15 |
| Page(s) | 19-23 |
| Creative Commons |
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited. |
| Copyright |
Copyright © The Author(s), 2018. Published by Science Publishing Group |
Air Passenger Service, Warsaw System, Mental Injury, Judicial Practice
| [1] | Ruwantissa I. R. Abeyratne, Aviation Trends in the New Millennium. Ashgate, 2001, p. 247. |
| [2] | He Xiangju, An Investigation of the Issues on Passenger Mental Damages in International Aviation Laws. ECUPL Journal, 2004, the 5th issue. Zhang Jun, Weakness of Air Passengers and Construction of its Balance Mechanism, Academics, 2017, pp. 179-185. |
| [3] | Wang Zejian, Civil Law Theory and Judicial Precedents (VI). China University of Political Science and Law Press, 1998, p. 54. |
| [4] | Wang Liming, On Breach Liabilities. China University of Political Science and Law Press, 2003, p. 563. Li Hui, The Construction of Compensation for Mental Damage in Breach of Contract in China, Commercial Research, 2015 (8), pp. 181-186. |
| [5] | Charles L Knap & Crystal, Problems in Contract Law. Little Brown and Company, 1998. p 978. Zhou Hua, To Limit Compensation in the Name of Damage—Analysis on Self Correction of Complete Compensation Principle in Tort Law, Hebei Law Science, 2017 (5), pp. 46-57. |
| [6] | Strictly speaking, the Kuala Lumpur Agreement and the Montreal Agreement are not international conventions, but they serve de facto as material modification to the Warsaw Convention, and are playing their roles in practice and therefore usually considered as part of the Warsaw System. |
| [7] | See http://library.arcticportal.org/1588/1/Warsaw1929.pdf. |
| [8] | Zhao Weitian, International Aviation Laws. Social Sciences Academic Press, 2000, p.327. |
| [9] | John F. Easton, Jennifer E. trock and Kent A. Radford: “A Continuum of Bodily Injury Under The Warsaw Convention", Journal of Air Law and Commerce, Fall, 2003. George N. Tompkins, Are the Objectives of the 1999 Montreal Convention in Danger of Failure?, Air and Space Law，2014 (3), pp. 203-214. |
| [10] | “Personal injury” is an injury not to property, but to the body, mind, or emotions. http://www.nolo.com/lawcenter/dictionary/dictionary_listing.cfm/Term/DEEE0E11-E3A5-4E2D-9E36FA5CC1F46D61/alpha/P, retrieved on July 11, 2017. |
| [11] | Vijay Poonoosamy, Report on Modernization and Unification of the Warsaw System by Rapporteur, document from the 30th meeting of the Legal Committee of ICAO (LC/30—WP/4 Appendix A). Cited from International Aviation Private Laws by Tang Mingyu & Chen Yu, Law Press China, 2004, p.256. |
| [12] | Tang Mingyu & Chen Yu, International Aviation Private Laws, Law Press China, 2004, p.257. |
| [13] | See http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/17.html. |
| [14] | Ruwantissa I. R. Abeyratne, “Mental Distress in Aviation Claim—Emergent Trends", Journal of Air Law and Commerce, Spring, 2000. Jae Woon Lee, Joseph Charles Wheeler, Air Carrier Liability for Delay: A Plea to Return to International Uniformity, J. Air L. & Com. 2012, p. 77. |
| [15] | Zhao Wei Tian, International Aviation Law, Social Science Academic Press (China), 2000, p.326. Zhai Yehu, On Laws Applying of the International Aviation Accident Compensation, Law Science Magazine, 2014 (7), pp. 91-96. |
| [16] | 872 F. 2d. 1462 (11th Cir. 1989). The Supreme Court of the United States’ final verdict reference number: 499 U.S. 530 (1991)/ Cited from International Aviation Private Laws by Tang Mingyu & Chen Yu, Law Press China, 2004, p 254. |
| [17] | In Article 110 of General Provisions of Civil Law, “natural persons enjoy the right to life, body rights, the right to health, name rights, image rights, reputation rights, honor rights, privacy rights, the right to marital autonomy and other such rights.” |
| [18] | In Clause 4 of Article 10 of Answers to Several Issues Pertaining to Trial of Reputation Right Related Cases by the Supreme People’s Court, “where a citizen or legal person claims damages for reputation tort, the tortfeasor shall be liable for the economic losses caused by such tort, which shall be decided by the People’s Court of jurisdiction based on the degree of fault on the tortfeasor’s part, specific nature of the tort and the consequence of mental injury it causes to the victim.” |
| [19] | In Article 1 of the Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury, “where a claimant pursues compensation for property damage or mental injury from an obligor on ground of harm to life, health or body, the People’s Court of jurisdiction shall accept such case.” |
| [20] | In Article 18 of the Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury, “where a claimant pursues solatium for mental injury as close relative of the victim or the dead who sustained such injury, it shall be determined in accordance with Interpretation of the Supreme People's Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts.” |
| [21] | Gao Wanquan, Ding Xiaoyan, International Air Passenger Tort Damages Claim Case Lu Hong v. United Airlines. Gazette of the Supreme People’s Court of the People’s Republic of China, 2002, Issue 4. He Dawei，The Study on Legal Nature of Public Air Carrier’s General Conditions of Carriage and the Resolution of Difficulties in Its Application, Political Science and Law, 2018 (1), pp. 134-149. |
| [22] | Shan Hailing, Liang Min, Analysis of International Air Passenger Tort Damages Claim Case Lu Hong v. United Airlines. The People’s Judicature, 2003, Issue 10. |
| [23] | Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996). |
| [24] | Preface of Warsaw Convention (1929). |
| [25] | Larry A. DiMatteo, Lucien J. Dhooge, Stephaine Greene, Virginia G. Maurer, Marisa Anne Pagnattaro. International Sales Law—A Critical Analysis of CISG Jurisprudence. Cambridge University Press. New York. 2005, p. 23. |
APA Style
Cheung Chai Hong. (2018). An Inquiry into the Legal Considerations for Passenger Mental Injuries in International Aviation Laws. International Journal of Education, Culture and Society, 3(1), 19-23. https://doi.org/10.11648/j.ijecs.20180301.15
ACS Style
Cheung Chai Hong. An Inquiry into the Legal Considerations for Passenger Mental Injuries in International Aviation Laws. Int. J. Educ. Cult. Soc. 2018, 3(1), 19-23. doi: 10.11648/j.ijecs.20180301.15
AMA Style
Cheung Chai Hong. An Inquiry into the Legal Considerations for Passenger Mental Injuries in International Aviation Laws. Int J Educ Cult Soc. 2018;3(1):19-23. doi: 10.11648/j.ijecs.20180301.15
Share This Article
Twitter
Linked In
Facebook
Copy
Download@article{10.11648/j.ijecs.20180301.15,
author = {Cheung Chai Hong},
title = {An Inquiry into the Legal Considerations for Passenger Mental Injuries in International Aviation Laws},
journal = {International Journal of Education, Culture and Society},
volume = {3},
number = {1},
pages = {19-23},
doi = {10.11648/j.ijecs.20180301.15},
url = {https://doi.org/10.11648/j.ijecs.20180301.15},
eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijecs.20180301.15},
abstract = {The main purpose of the paper is to discuss law application concerning mental damage compensation to air passengers, and to offer solutions. Though Legal Positivism, the paper analyzes the legislative background and purpose of damage compensation to air passengers in Warsaw System; through comparisons, it discusses the legislative and judicial theories and practices concerning mental damage compensation in China and the US. The study finds that, regulations in the Warsaw System concerning mental damage compensation to air passengers have blurred boundaries, leading to difficulties in application. Though as major aviation powers, China and the US also have strong disagreements on this issue in their relevant laws and judicial precedents at home, also leading to difficulties in application. This paper suggests timely amendments to the Warsaw System, so as to avoid forum shopping, which may disturb law application and tarnish the authority of the System.},
year = {2018}
}
TY - JOUR T1 - An Inquiry into the Legal Considerations for Passenger Mental Injuries in International Aviation Laws AU - Cheung Chai Hong Y1 - 2018/04/24 PY - 2018 N1 - https://doi.org/10.11648/j.ijecs.20180301.15 DO - 10.11648/j.ijecs.20180301.15 T2 - International Journal of Education, Culture and Society JF - International Journal of Education, Culture and Society JO - International Journal of Education, Culture and Society SP - 19 EP - 23 PB - Science Publishing Group SN - 2575-3363 UR - https://doi.org/10.11648/j.ijecs.20180301.15 AB - The main purpose of the paper is to discuss law application concerning mental damage compensation to air passengers, and to offer solutions. Though Legal Positivism, the paper analyzes the legislative background and purpose of damage compensation to air passengers in Warsaw System; through comparisons, it discusses the legislative and judicial theories and practices concerning mental damage compensation in China and the US. The study finds that, regulations in the Warsaw System concerning mental damage compensation to air passengers have blurred boundaries, leading to difficulties in application. Though as major aviation powers, China and the US also have strong disagreements on this issue in their relevant laws and judicial precedents at home, also leading to difficulties in application. This paper suggests timely amendments to the Warsaw System, so as to avoid forum shopping, which may disturb law application and tarnish the authority of the System. VL - 3 IS - 1 ER -
Information
Email: