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[Draft] Air Transport Liability Convention

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Kelssek
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[Draft] Air Transport Liability Convention

Postby Kelssek » Sat Sep 12, 2020 3:28 pm

Air Transport Liability Convention
Advancement of Industry: Tort reform

Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:

1. This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.

2. (1) A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
(2) Carriers shall be liable for:
  1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
  2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.

3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:
  1. actions of the claimant that contributed to the harm,
  2. acts of war, insurrection, or civil unrest,
  3. compliance with government authorities, such as actions taken to enforce customs regulations, or
  4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.

5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:
  1. the carrier has its domicile,
  2. the carrier has its primary place of business, or
  3. the contract for carriage was made.
Last edited by Kelssek on Sat Sep 12, 2020 8:25 pm, edited 2 times in total.

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Kelssek
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Postby Kelssek » Sat Sep 12, 2020 3:29 pm

I believe the preamble describes simply the rationale and purpose of this proposal. We now welcome questions and comments from delegates.

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Honeydewistania
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Postby Honeydewistania » Sat Sep 12, 2020 6:08 pm

Your lists were slightly messy, so I reformatted them using the list function and hopefully the meaning is still the same. If you prefer your current look though feel free to continue using it.
Code: Select all
Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:[list=1]

[*]This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.
[*][list=a][*]A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
[*]Carriers shall be liable for:[list=i]
[*]any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
[*]any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.[/list][/list]
[*]Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:[list=a]
[*]actions of the claimant that contributed to the harm,
[*]acts of war, insurrection, or civil unrest,
[*]compliance with government authorities, such as actions taken to enforce customs regulations, or
[*]generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.[/list]
[*][list=a][*]The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
[*]Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.[/list]
[*]Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:[list=a]
[*]the carrier has its domicile,
[*]the carrier has its primary place of business, or
[*]the contract for carriage was made.[/list][/list]


Whereas there is a wide variation in laws on liability across member states, which may create legal risk and uncertainty for users and operators of international air transportation; and,

Whereas it is desirable to establish common standards on liability in international air transportation, thereby simplifying litigation arising from injury or loss due to accidents on international flights, creating better protection for users of air transport services, greater certainty for companies, and reducing the scope for jurisdictional disputes,

Now therefore, the World Assembly enacts as follows:

  1. This resolution shall apply to the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.
    1. A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
    2. Carriers shall be liable for:
      1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
      2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.
  2. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:
    1. actions of the claimant that contributed to the harm,
    2. acts of war, insurrection, or civil unrest,
    3. compliance with government authorities, such as actions taken to enforce customs regulations, or
    4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.
    1. The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
    2. Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.
  3. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:
    1. the carrier has its domicile,
    2. the carrier has its primary place of business, or
    3. the contract for carriage was made.
Last edited by Honeydewistania on Sat Sep 12, 2020 7:47 pm, edited 2 times in total.
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Picairn
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Postby Picairn » Sat Sep 12, 2020 7:34 pm

Honeydewistania, there is a redundant [/list] tag in your post.
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Honeydewistania
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Postby Honeydewistania » Sat Sep 12, 2020 7:47 pm

Picairn wrote:Honeydewistania, there is a redundant [/list] tag in your post.

Well, that's embarrassing. Fixed
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Imperium Anglorum
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Postby Imperium Anglorum » Sat Sep 12, 2020 7:58 pm

I think Honeydewstania's reformat is a good idea

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Kelssek
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Postby Kelssek » Sat Sep 12, 2020 8:42 pm

OOC: formatting changed, hope that's better.

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Imperium Anglorum
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Postby Imperium Anglorum » Sun Sep 13, 2020 12:08 am

More on formatting. It may be simply because I have not been exposed to it, but I think it's irregular to use as sub-lists (a) and then (1) in different sections. Regardless—

Kelssek wrote:1. This resolution ... shall apply to ... the carriage by aircraft of persons or cargo for reward or compensation, where the origin and destination are in different member states.

I'd change to something like "resolution applies only to" in the areas between ellipses.

Kelssek wrote:2. (1) A “carrier” in this resolution means any person or firm who contracts to transport people or goods by air.
(2) Carriers shall be liable for:
  1. any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and
  2. any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.
3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:
  1. actions of the claimant that contributed to the harm,
  2. acts of war, insurrection, or civil unrest,
  3. compliance with government authorities, such as actions taken to enforce customs regulations, or
  4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

Elsie Mortimer Wellesley first remarks, "Consider putting the definition in a wholly separate section instead of keeping it here; I think it may also be important to look at the resolution Respondeat superior as to how the Assembly currently deals with delicts emerging from employees, which definitely would be important in a services context".

But after a pause, she continues, "I think though, I'd definitely want to limit carrier liability to cases where the proximate cause of the injurious delict is action or omission by the carrier or its employees. While I recall that the ancient provisions of the Twelve Tables would have a specific talion determined by statute, I think a more reasonable approach would be one taken by the ancient lex Aquilia, as amended by the lex Hortensia 1822, which requires under the 1906 Praetorian Edict such a dispute to be taken up as", the universal translator stops for a moment, as the phrase actio utilis is heard under her breath, rendered a few seconds later "an expedient action".

Taking a moment to remember her law, she continues, "It comes from time immemorial to apply the non iure provisions of section 8(24) of the Twelve Tables in actions of negligence, because failure to provide a duty as provided by law ought to be punished. Such iniuria should not be permitted, though I wonder how it might be possible for a specific set of duties to be imposed on carriers of this sort in a fair-minded way. I think it would be wise to avoid a committee, but it may also be difficult to synthesise a coherent framework for such duties".

"it also may be important to note standards related to culpa are both differential and subjective". An enormous tome is lifted to Mrs Mortimer Wellesley, entitled Digest: Restatement 1906, and she reads "For example, 'Mucius Scaevola introduced foreseeability as an element of negligence in iniuria actions, arguing that only those things that could have been foreseen by a diligent man are culpa and prohibited by the lex Aquilia'".

Kelssek wrote:4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.
(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.

Mrs Mortimer Wellesley continues, "This reminds me also of how the lex Aquilia requires payment in iniuria actions for foregone profits or services not only at the chattel but at the personal level", reading from the tome again, she continues, "Ulpian, for example, argued that in death and chattel injury cases, we ought not only to look at 'how much it was
worth when he was killed, or rather how much it was worth to us that he should not be killed'. I wonder also whether the archaic forms of action involving noxa and the provision of corporal punishment to dependent wrongdoers, in lieu of properties such dependents necessarily cannot have, might also apply in some less enlightened states".

Kelssek wrote:5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:
  1. the carrier has its domicile,
  2. the carrier has its primary place of business, or
  3. the contract for carriage was made.

"I would imagine first that contracts may be made under express provision of the application of certain laws. It's common to embed legal practice in certain understandable jurisdictions, even to the chagrin of locals. Many contracts in our nation are made with express application of laws either in the Kingdom or the Republic to avoid the extreme messiness of mixed actions. In my mind, such legal assignment provisions ought to be respected. Moreover, there are state aid concerns which could come up in cases where a state-sponsored carrier is indemnified of liability by, say, a legislature's directed judgement. This would greatly harm any ability for people to see redress for, in the worst case, the deaths of their family members."

OOC: Some explanations required. Elsie is from the Roman republic, one of the two countries which forms the United Commonwealth. The Republic applies Roman law (it also claims to be the direct continuation of the Roman republic). A delict is analogous to a tort. Under Roman law, it was regulated by the lex Aquilia but emerged originally from the Twelve Tables. See generally Johnson (ed) The Cambridge Companion to Roman Law (2015) 246–71.

An iniuria is exactly what it says, an injury. It is a form of delict. Culpa means fault (cf culpability). Mucius Scaevola and Ulpian were Roman jurists quoted in Justinian's Digest (6th century AD). The most relevant book of the Digest in this matter is probably book 9. Noxa is a harm (it's where we get the word noxious). A lot of Roman law deals with slaves, who were not considered legal persons. Delicts alleged against a slave were defended by the owner, analogous also to how delicts committed by dependents were defended by their paterfamilias. This also applies by analogy to how employees are treated in cases related to "quasi-delicts".
Last edited by Imperium Anglorum on Sun Sep 13, 2020 12:23 am, edited 5 times in total.

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Postby Araraukar » Thu Sep 17, 2020 11:03 am

Kelssek wrote:Carriers shall be liable for ... any injury or death to a passenger resulting from an unexpected event aboard an aircraft

"Why should a passenger's heart-attack or stroke be the carrier's fault? I'm aware of 3.d. existing, but you're starting from making them responsible for random luck. 3.d. merely says they may be excused because of such factors, not that the liability wouldn't apply in such cases."
Last edited by Araraukar on Thu Sep 17, 2020 11:07 am, edited 2 times in total.
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Postby Separatist Peoples » Thu Sep 17, 2020 4:04 pm

Kelssek wrote:any injury or death to a passenger resulting from an unexpected event aboard an aircraft, or in the course of embarkation or disembarkation from an aircraft, and

"Regardless of the intervening negligence or intentional acts of a third party? Regardless of whether the airline satisfies its standard of care and breaches no duties?"
any delay, damage to, or destruction of, cargo that takes place in the course of its transportation by a carrier or its agents.

"See above."
3. Carriers may be partially or fully exonerated from liability imposed by section 2 to the extent that they prove the injury, death, damage, or destruction resulted from:
  1. actions of the claimant that contributed to the harm,
  2. acts of war, insurrection, or civil unrest,
  3. compliance with government authorities, such as actions taken to enforce customs regulations, or
  4. generally, factors that are beyond the carrier’s control and were not due to negligence by the carrier or its agents.

"These are a paltry few exceptions for the breadth of tort law, ambassador."
4. (1) The International Transport Safety Committee shall set standard limits on liability for personal injury to passengers, and for damage, loss, or delay to cargo, and shall revise them annually. A carrier may not exclude its liability or limit its liability to a lower amount.

"Policy limits on liability regardless of the compensation necessary is inherently unjust."
(2) Such limits will not prevent courts from awarding costs of litigation to parties in accordance with national laws.
"Then why bother with the limits in the first place?"
5. Plaintiffs or their successors may claim for damages, at their option, in the courts of the State where:
  1. the carrier has its domicile,
  2. the carrier has its primary place of business, or
  3. the contract for carriage was made.

"An unusually myopic consideration of jurisdiction. We are opposed until the authoring ambassador improves their treatment of negligence and jurisdiction."
Last edited by Separatist Peoples on Thu Sep 17, 2020 4:05 pm, edited 2 times in total.

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