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Index
Cover
Risk and Liability in Air
MARITIME AND TRANSPORT LAW LIBRARY
Title
Copyright
Dedication
Foreword
Acknowledgements
CONTENTS
Table of Cases
Table of Legislation
Bibliography and Bibliographical Abbreviations
1 INTRODUCTION
I. Subject matter
II. A preliminary explanation
2 RISK, TRUST AND MASS MEDIA
I. The concept of risk
II. Risk and the predictability of accidents
III. The emergence of the risk society
IV. Risk and objectivity: how safe is safe enough?
V. Risk and subjectivity: how fair is safe enough?
Risk perceptions
Rationality questioned: the risk society explained through the prism of the post-industrial world
Individual perceptions of risk
Social perceptions of risk
VI. Trust as a risk factor
The protective cocoon
Mass media and their construction of risk
Media and aviation-related risk events: friend or foe?
Media constructions of liability
3 RISK, TRUST AND MASS MEDIA: LIABILITY IMPLICATIONS
I. Introduction
II. Historical perspectives
Pre-industrial risk and liability
Risk, liability and the Industrial Revolution
Post-industrial risk and liability: from persons to organisations
III. Risk, trust and mass media: liability implications for air carriers
The early years
The corporate years
Introduction
Courts as risk managers: a US perspective
Courts as risk managers: a UK perspective
Air carriers in the years of mass transportation and the risk society: between a rock and a hard place
The years of mass transportation: a grand overarching socio-legal problem
The years of mass transportation: operational challenges
The years of mass transportation: liability implications
4 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS – THE DRAFTING OF THE CONVENTIONS
I. A brief overview
II. The Warsaw Convention “System”
Introduction: Warsaw Convention 1929
The liability scheme of the Warsaw Convention
The Warsaw Convention as maker of social risk perceptions
The aims of the Warsaw Convention: risk education and risk allocation
“Accident” and “all necessary measures” as blame control
The amendments of the Warsaw Convention
Introduction
From the Warsaw Convention to the Hague Protocol
The protective cocoon is ruptured: is it the result of low liability limits?
The cocoon is ruptured: the risk society takes its toll
The Hague Protocol: missing the chance to accommodate societal risk perceptions
Montreal Interim Agreement (MA)
A first attempt to accommodate social risk perceptions: aviation risks as social problems
“Accident” is the new “all necessary measures”: the centre of gravity is changing
The Montreal Agreement as an abortive attempt at the socialisation of aviation risks
Guatemala City Protocol
Guatemala City Protocol: a further attempt at the socialisation of aviation risks
The Guatemala City Protocol as legal risk manager: attention to perceptions
The implications of the Protocol’s non-ratification
Air carriers’ legal initiatives
Trust as a motivator for legal change
Back to the future: a Warsaw Convention without liability limits
III. Montreal Convention 1999 (MC)
The liability scheme of the Convention
The Montreal Convention as shaper of social perceptions
The Montreal Convention as a risk manager in risk society: limited effect
5 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS � THE CONVENTIONS BEFORE THE COURTS AND RISK PERCEPTIONS
I. Introduction
II. The exclusivity of the Conventions as a liability control technique
III. The first judicial attempts to define “accident”
IV. The definition of “accident” in Air France v. Saks: offering a protective cocoon to carriers, opening the door of the Conventions to social perceptions, or both?
Safeguarding the risk allocation achieved in the Conventions
Inviting the judicial redrafting of the Conventions
V. Morris v. KLM and Wallace v. Korean Airlines: raising the social expectations
Transforming the “risk characteristic to air carriage” requirement from a liability control mechanism to a liability expansion tool
The practical effect of Wallace and Morris: tort thinking in the liability scheme of the Conventions
VI. Judicial interpretation of the Conventions in the risk society
Preservationists v. right-seekers
VII. Olympic Airways v. Husain: the Supreme Court as precautionary risk manager
Foreseeability and risk aversion in the interpretation of the term “accident”
Control-based imposition of liability
Conceptual misconceptions of reasoning: “accident” investigation as causative inquiry
Treating “accident” as event: fault-based imposition of liability
Dissenting opinion: the text of the Conventions and the aim of international uniformity are of paramount importance
Practical implications
VIII. Re DVT Litigation: the House of Lords as a reactive risk manager
Scientific background
Public perceptions
Legal perceptions
Fault and risk apportionment
The Court of Appeal as a reactive risk manager
The House of Lords as a reactive risk manager
Judicial decisions and public perceptions
Room for precautionary risk management
6 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: PASSENGERS – A NEW PROPOSAL FITTING THE RISK SOCIETY: BALANCING SOCIAL AND ASOCIAL RESPONSIBILITY
I. Socialisation of aviation risks and first party insurance
II. The scheme as a maker of social perceptions
7 INTERNATIONAL AIR CARRIER LIABILITY AND SOCIAL PERCEPTIONS OF RISK: THIRD PARTIES ON THE GROUND
I. A brief overview
II. The Rome Convention “System”
1933 Rome Convention: introduction
The liability scheme of the 1933 Rome Convention
Domestic perceptions of ultra-hazardous activity influence international drafters
Near-absolute liability as a cost-benefit test
Near-absolute liability as an impediment to creating a trust relationship between air carriers and third parties on the ground
Social perceptions v. technical perceptions of risk: 1933 Rome Convention v. Warsaw Convention 1929
1952 Rome Convention: introduction
The liability system of the 1952 Rome Convention
US social and technological perceptions of aviation risk fail to influence the international liability choices
Near-absolute liability again: misinterpretation of contemporary social and technological aviation perceptions
Near-absolute liability again: enterprise liability
Disregarding the need to balance social and technical perceptions of risks in the 1952RC
Near-absolute liability and breakable liability limits: a litigation minefield
No provision made for intentional risk events: modified corrective justice approach still the preferred choice
Vicarious liability and breakable liability limits in an era of global operations
Defences: reinforcing the channelling of liability to air carriers
The Guatemala City Protocol as a prototype for the regulation of air carriers’ liability to third parties on the ground
1978 Montreal Protocol: introduction
The liability system of the 1978 Montreal Protocol
Retain near-absolute liability, increase liability limits: . . .
. . . A failed formula
Intentional, man-made risk events were not considered in the 1978 Montreal Protocol
III. From the Rome Convention “System” to the Special Group on the Modernisation of the Rome Convention
Initial attempts to achieve a broader sharing of risks for the sake of managing intentional, man-made risk events
Insurance availability as an obstacle to the socialisation of aviation risks
The legislative “ripple effects” of 9/11
The undermined social role of aviation insurance
US reaction: suspending the application of tort law for a no-fault compensation scheme
US reaction: is the permanent erosion of domestic tort law by a no-fault compensation scheme acceptable?
International reactions: insurance coverage provided by governments
International reactions: a tripartite plan with “cooling” effects
The modernisation of the Rome Convention “System”
Reliance on Montreal Convention 1999: cognitive behaviour
From balancing interests to rebuilding trust
Convention on compensation for damage caused by aircraft to third parties (General Risks Convention)
Cognitive limitations strike again: Montreal Convention 1999
Undermining the importance of safety risks in the risk society
Convention on compensation for damage caused by aircraft to third parties arising from acts of unlawful interference (Terrorism Convention)
Introduction
Retain, share, socialise
First compromise: more adjudication, less cooperation
Second compromise: full-blown corrective justice
The final compromise: removing the third layer
8 CONCLUSION
Index
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