Kargo Gönderim Saatleri;
Kartlarına Taksit
Yeni Üyelik
Üye Girişi
Lıabılıty Of The Aır Carrıer
Lıabılıty Of The Aır Carrıer
Kader GÜNEŞ
Sayfa Sayısı
:
214
Kitap Ölçüleri
:
16x23 cm
Basım Yılı
:
2013
ISBN NO
:
9786051461229
150,00
TL PREFACE International Air Law assumed great importance since the sudden increase in the International Air Transport during the twen¬tieth century. The issue of diverging interpretations of a uniform text is not new, but it has assumed a growing importance in this century. Today\\\\\\\′s air transport industry is a strong global sector with a vastly improved and steadily improving safety record. Air transport plays an important role in economic development. In the 21 st century travel and tourism will be the most important factor of the economies of the world. The air transport is also bound to undergo many changes, so also the rules governing the interna¬tional air transport including the amount of compensation and airfares in the real term. Especially, the air cargo industry is fascinating. Each day new challenges arise, legal problems, political, commercial, operational issues and problems must be solved just as quickly. Cargo claims are commonplace in the air cargo industry, and solving them in¬volves dealing with the customer\\\\\\\′s pressure for a quick and favourable solution, the insurer\\\\\\\′s slow and rather formalistic proc¬ess, and the airline\\\\\\\′s pressure to clear all cargo claims as quickly as possible. Therefore, rather than analyzing legal issues, a person in charge of cargo claims has to find a compromise acceptable to all the parties involved1. Air cargo is currently a $ 40 billion industry that is expected to develop rapidly during the next 20 years. Two main factors stimulate air cargo growth, market development and techni¬cal development. A legal analysis of international air cargo claims must start with an examination of the applicable international re¬gime. Probably the most widely accepted instrument concerning the unification of private law is the Warsaw Convention for the Unifica¬tion of Certain Rules Relating to International Carriage by Air of 1929, which governs international carriage by air for passengers, baggage, and goods. For 70 years the 1929 Warsaw Convention, which came into force in 1933, governed supreme, in its numerous permutations, virtually all international carriage of passengers, baggage and cargo through¬out the world. The Warsaw Convention 1929 prescribes the rights and responsibilities of the International Air Carriers on one hand and passengers, consigners and consignees of goods on the other. This Convention has undergone a series of amendments or attempted amendments, assembling a system of law known as the \\\\\\\′Warsaw Sys¬tem\\\\\\\′. This Convention has been amended by a Protocol adopted at the Hague in 1955, by another Protocol adopted at Guatemala City 1971, and by four Protocols adopted at Montreal 1975. It has also been supplemented by the Guadalajara Convention inn 1961. The expres¬sion \\\\\\\′Warsaw system\\\\\\\′ refers to that ensemble of international treaties, as well as to the so called \\\\\\\′Montreal Agreement\\\\\\\′ concluded in 1966 whereby the major air carriers who signed it agreed to modify their Conditions of Carriage for the benefit of air travellers whose contract of transportation includes a place in the United States of America as a point of origin, point of destination, or agreed stopping place. The Convention helps to eliminate or reduce various problems arising from conflict of laws from varying rules on documents of carriage and on liability2. In some respects, the Convention represented a pro¬gressive development in private law and a better balance of interests between the airlines and passengers, consignees and consignors than was common for other modes of transport3. Its quasi-universal accep¬tance testifies to its success as an instrument of international uniform law, success which is in turn enhanced by its quasi-universality4. The object of this study is the uniform law governing interna¬tional carriage by air during international transportation of cargo which is primarily regulated by the \\\\\\\′Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw Convention in 1929\\\\\\\′, its amendments and in European Law and to provide a comparative study with the TCAA. During the fifty years since its signing at Warsaw, when commercial aviation was still in its infancy, the \\\\\\\′Convention for the Unification of Certain Rules Relating to International Carriage by Air\\\\\\\′, known as the Warsaw Convention, has gained acceptance throughout the world. It has be¬come Magna Charta of the liability of the international air carrier, which, in many countries, applies even to domestic air carriage5. Among these instruments, the Montreal Protocol No. 4 deals exclu¬sively with cargo issues. It is likely that the Protocol will gain wider acceptance since it does not contain any controversial provisions and provides competitive advantages to air carriers. It took nearly half a century since the Warsaw Convention, as amended by the Hague Protocol in 1955, came into effect to create a new, modern, and most of all unified instrument for liability in inter¬national carriage by air. Given the differences in standards of living and in legal traditions around the world, it is impossible to unify the liability system in carriage by air with respect to every detail, but what is essential in order to a least provide the global air transporta¬tion industry and its customers with a common liability standard has, however, been established with the Montreal Convention 19996. The International Civil Aviation Organization (ICAO) took initia¬tive with the help of International Air Transport Association (IATA), to replace the Warsaw System into a new Montreal Convention 1999, for the Unification of Certain Rules for International Carriage by Air. The Montreal Convention 1999 is designed to meet the challenges of 21st century. The Montreal Convention primarily deals with the issues of limitation of liability and proof of exoneration. When formulating the Montreal Convention, its authors were able to fall back on the air transportation industry\\\\\\\′s more than 60 years of experience with the Warsaw Convention. Central criteria such as definition of \\\\\\\′interna¬tional carriage by air\\\\\\\′ or the lie bility criterion of an \\\\\\\′accident\\\\\\\′ as well as other positive elements have been retained. This promotes legal certainty, for countless international decisions and papers, addressing many specific issues of liability in carriage by air will thus also re¬main relevant in the future. Furthermore, may negative aspects of the Warsaw Convention have been eliminated. Over the course of its his¬tory, amendments and additional protocols as well as interim agreements under the private law and miscellaneous agreements be¬tween the airlines had created a legal labyrinth that moved further and further away from representing a unified liability system for car¬riage by air because different revision levels applied to the various states already party to or subsequently joining the Warsaw System7. Since the air transport covers a large concept of this study, we will only deal with the air carrier liability during transportation of cargo. Thus, this study will not include transportation of passengers and baggage. As noted above, the object of this thesis is to analyse the liability of the air carrier during transportation of cargo under War¬saw Convention, under the European Law and under the Turkish law. This thesis confines itself to the contractual liability of the air carrier in respect of cargo carriage. It does not include the delictual liability of the manufacturers of the aircraft, traffic controller or air¬port authority or agents and tour operators towards passengers for acts of third parties are also not within the scope of the present study. This study consists of six chapters and the scheme of the thesis is as follows: First, it starts with the introduction to the story of civil aviation in general in introduction part. Chapter 1 traces the evolu¬tion of the concept of air carrier liability in international law of civil aviation, the history of the Warsaw Convention including basic sources and subsequent amendments to the Warsaw Convention be¬ginning from the Hague Protocol 1955 to the Montreal Convention 1999. It is also dealing with the Intercarrier Agreements and Euro¬pean Regulations. Chapter 2 deals with the contract for the carriage of cargo by air, and the air waybill. Chapter 3 deals with the rights and obligations of the carrier. Chapter 4 deals with rights and obligations of the consignor. Chapter 5 deals with the rights and obligations of the consignee. Finally, Chapter 6 deals with the liability of the carrier, liability grounds and conditions, principles of limitation of liability, unlimited liability and liability suit. CONTENTS PREFACE V ABBREVIATIONS LIST XV § 1- WARSAW SYSTEM 1 I. INTRODUCTION 1 1. History and Development of Air Law 1 2. THE WARSAW CONVENTION 3 a. Historical Background of the Warsaw Convention of 1929 3 b. Amendments of the Warsaw Convention 6 c. Scope of the Warsaw Convention 9 aa. Documents of Carriage 9 bb. The Liability of the Carrier 10 II. AMENDMENTS OF WARSAW CONVENTION 12 1. The Hague Protocol, 1955 12 2. The Guatemala City Protocol, 1971 16 3. The Four Montreal Protocols, 1975 19 4. Guadalajara Convention, 1961 23 III. PRIVATE CARRIER AGREEMENTS 25 1. 1966 Montreal Intercarrier Agreement 25 2. The IATA Intercarrier Agreement, 1995 28 VI. THE MONTREAL CONVENTION OF 1999 32 1. Preparatory Work within ICAO 32 2. The Characteristic and Structure of the Montreal Convention of 1999 33 a. Consolidation of the Warsaw Convention of 1929 33 b. The Content of the Montreal Convention of 1999 in General 35 c. Liability of the Carrier With Respect to Passengers, Baggage, Cargo and Delay 37 V. EUROPEAN REGULATIONS OF 1997 AND 2002 39 1. In General 39 2. Council Regulation 2027/97 41 3. The Amending Regulation of 889/2002 44 § 2-TURKISH CIVIL AVIATION ACT 47 1. In General 47 2. The Principles Governing the Domestic Contract of Carriage by Air 48 a. In General 48 b. The Provisions Relating to the Domestic Carriage of Cargo by Air 49 aa. Statutory Provisions: 49 bb. Conditions of Contract 50 cc. The Provisions oftheTCAA 50 dd. International Agreements 50 ee. The Provisions of the Law of Obligations 51 ff. The Provisions of the Turkish Commercial Act 51 c. The Provisions Relating to International Carriage by Air 52 § 3- CONTRACT FOR THE CARRIAGE OF GOODS/CARGO BY AIR 53 I. CONTRACT FOR THE CARRIAGE OF CARGO BY AIR 53 1. In General 53 2. Content of the Air Cargo Contract 56 3. The Parties to the Contract of Carriage 57 a. The (Contracting) Carrier 57 b. The Consignor and Consignee 57 4. Legal Status of the Contract for the Carriage of Cargo 58 II. THE AIR WAYBILL : 59 1. In General 59 2. Designation of the Air Waybill 61 3. Electronic Data Processing of Air Cargo 64 4. Receipt for the Cargo 67 5. Air Waybill Particulars 68 6. Legal Status/Nature of the Air Waybill 70 a. In General 70 b. Statements Relating to Cargo 73 c. Negotiability of Air Waybill 74 § 4-RIGHTS AND OBLIGATIONS OFTHE CARRIER 77 I. OBLIGATIONS OF THE CARRIER 77 1. To Take Reasonable Care of the Goods ; 77 2. To Carry the Goods at the Date Agreed Upon 77 3. To Give Notice to the Consignee 77 4. To Obey the Instructions of the Consignor and the Consignee 78 5. Making out the Air Waybill 78 II. RIGHTS OFTHE CARRIER 78 1. Pay Claim 78 2. The Right on the Goods 79 § 5- RIGHTS AND OBLIGATIONS OF THE CONSIGNOR 81 I. OBLIGATIONS OF THE CONSIGNOR 81 1. Payment of the freight and other expenditures 81 2. Making out the Air Waybill 82 a. In General 82 b. Non - Compliance with Documentary Requirements 86 c. Responsibility for Particulars of Documentation 87 II. RIGHTS OF THE CONSIGNOR 90 1. The Right of Disposition 90 a. In General 90 b. Requirements for Exercising the Right of Disposition 93 aa. To Carry out All His Obligations Arising out of the Contract of Carriage 93 bb. To Produce His Part of the Air Waybill 93 cc. His Instructions must be Capable of Execution 94 dd. His Instructions must not Cause to Prejudice to the Carrier or Other Consignors 95 2. Implied Rights of the Consignor 99 § 6- RIGHTS AND OBLIGATIONS OF THE CONSIGNEE 101 I. OBLIGATIONS OF THE CONSIGNEE 101 II. RIGHTS OFTHE CONSIGNEE 102 1. Right to Delivery of the Goods 102 2. Right to Request Notice of the Arrival of the Goods 104 3. Right to Claim Compensation 105 § 7- LIABILITY OF THE CARRIER 107 I. GROUNDS OF LIABILITY 107 1. In General 107 2. Destruction 109 3. Loss 110 4. Damage 112 5. Delay 113 II. CONDITIONS OF LIABILITY 118 1. Damaging Event Has to Occur \′During Carriage by Air\′ 118 2. Being \′In the Charge of the Carrier\′ 120 a. \′On Board\′ 125 b. \′In an Airport\′ 125 c. Acceptance 128 d. The Delivery 130 3. Surface Transport 138 III. LIMITATION OF LIABILITY 140 1. Limited Liability System 140 a. In General 140 b. Limited Liability under the TCAA 141 c. Limited Liability under the Warsaw/Hague System 141 2. Limited Liability of the Servants and Agents of the Carrier 145 IV. UNLIMITED LIABILITY 152 1. In General 152 2. Unlimited Liability under the Warsaw/Hague System 154 a. Under the Warsaw Convention, 1929 154 b. Under the Hague Protocol, 1955 159 c. Under the Montreal Protocol No: 4 164 d. Under Montreal Convention of 1999 165 3. The Test Which Applies to Determine Unlimited Liability 165 4. Unlimited Liability for Non-Compliance with the Convention\′s Requirements as to the Air Waybill 167 5. Unlimited Liability for Special Declaration of Value 169 6. Unlimited Liability under the TCAA 169 V. EXONERATION OF THE CARRIER 170 1. Exoneration Based on Having Taken \′All Necessary Measures\′ 170 a. Under the Warsaw/Hague System 170 b. Under Montreal Protocol No. 4 and Under the Montreal Convention of 1999 177 c. Under the TCAA 178 2. Contributory Negligence 179 3. Contractual Provisions 183 VI. LIABILITY SUIT 184 1. Notice of Complaint 184 a. In General 184 b. The Complaint under the Article 26/1 185 c. The Time Limit for Notification under the Article 26/2 186 d. Form of the Complaint 188 e. The Content of the Complaint 188 f. Fraud on the Carrier\′s Part 189 2. The Parties 190 a. The Plaintiff 190 b. The Defendant 192 3. The Proper Forum 193 a. According to the TCAA 193 b. According to Warsaw/Hague System 193 4. Arbitration 198 5. Cause of Action 198 6. Time for Suit 203 CONCLUSION 207 BIBLIOGRAPHY 211
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