국제항공화물운송인의 책임제한에 관한 연구 : 몬트리올협약상 책임체계-배상한도 연계구조를 중심으로 = A Study on the Limitation of Liability of International Air Cargo Carriers: With a Focus on the strict but limited liability system under the Montreal Convention

다국어 초록 (Multilingual Abstract)

A Study on the Limitation of Liability of International Air Cargo Carriers: With a Focus on the strict but limited liability system under the Montreal Convention YANG ZHEN Advisor: Prof. LEE Chang Jae,Ph.D. Department of Trade, Graduate School of Chosun University The regime combining strict liability with limitation of liability under the Montreal Convention has long constituted the core normative structure of carrier liability in the international carriage of cargo by air. By institutionally linking the basis of liability with the scope of recoverable damages, this regime has performed important functions in unifying international liability rules, stabilizing risk expectations, and balancing the interests of carriers and cargo interests. However, with the continuing transformation of the contemporary air cargo industry, the practical foundations on which this structure rests have undergone significant change. On the one hand, door-to-door multimodal transport has increasingly become a dominant logistics model, rendering transport chains more segmented and organizationally complex. On the other hand, the growing use of digital technologies—such as electronic transport records, the Internet of Things, and artificial intelligence—throughout the transport process is reshaping both the control structure and the informational architecture of carriage operations. At the same time, the increasing proportion of high-value and technology-intensive cargo transported by air has weakened the value assumptions underlying the existing limitation regime. Taken together, these developments have made the contemporary adequacy of the fault-limitation linkage structure under the Montreal Convention increasingly open to question. Against this background, this dissertation takes the contemporary validity and possible reconstruction of the fault-limitation linkage structure as its central object of inquiry. It undertakes a systematic analysis of the historical logic of its formation, the structural difficulties emerging in its present operation, and the possible directions for its reconstruction. In doing so, the dissertation seeks to provide a normative assessment of the current liability regime from historical, doctrinal, and institutional perspectives. At the historical level, this dissertation systematically traces the evolution of the principles governing carrier liability within the Warsaw– Montreal system, with particular attention to the transition from a regime of presumed fault coupled with limitation of liability to one of strict liability coupled with limitation of liability. The study shows that the liability structure established by the Warsaw Convention was strongly conditioned by its historical context and was closely tied to the level of aviation technology, the contemporaneous capacity for risk recognition, and prevailing industrial policy considerations. In the course of subsequent revisions, political bargaining over liability limits became intertwined with the institutional rigidity surrounding changes to the basis of liability, ultimately leading to a form of modernizing compromise in the Montreal Convention through the adoption of strict liability. This historical analysis demonstrates that the fault-limitation linkage structure is not a fixed and self-evident legal construct, but a historically contingent institutional design whose legitimacy depends on the factual and economic conditions under which it operates. At the level of contemporary challenges, this dissertation focuses on two principal dimensions: the rise of multimodal transport and the deepening digitalization of air cargo operations. With respect to multimodal transport, the spread of door-to-door logistics has made it increasingly difficult for a liability regime constructed on the assumption of a single mode of transport to govern the realities of integrated transport chains. More specifically, attribution standards differ structurally between the air carriage segment and non-air segments; the evidentiary structure becomes uneven where the location of loss is uncertain; and multimodal transport operators may have greater room to rely strategically on contractual arrangements and limitation rules. These factors collectively reveal the structural limits of the current regime in multimodal settings. In response, this dissertation proposes a risk-control-centered approach to liability attribution, based on the continuity of risk control, with a view to providing, from within the existing convention framework, a possible interpretive path toward a more coherent coordination of attribution standards and limitation effects. With respect to digitalization, the dematerialization of transport documents has generated new interpretive demands concerning traditional formal requirements such as writing and signature; IoT-based monitoring technologies have altered the practical foundations for determining the period of carriage and the scope of the carrier’s duty of care; and technological malfunctions have introduced new interpretive tensions into the concept of accident. At the same time, the use of artificial intelligence in transport decision-making has made it increasingly difficult to apply a traditional subjective liability structure centered on fault and intent. In light of these developments, this dissertation advances the theory of system design and management negligence, which shifts the focus of legal evaluation from individual conduct to reviewable decisions in system design and managerial oversight. It further proposes a duty of algorithmic explainability as a procedural foundation for the legal assessment of AI-assisted decision-making, thereby seeking to provide an internal doctrinal response to attribution problems arising under conditions of digitalized transport. At the level of institutional reconstruction, this dissertation proposes two mutually connected directions. The first is the reconstruction of the liability-limit adjustment mechanism. Continuing inflation and the normalization of high-value, low-weight cargo have weakened the practical compensatory function of fixed liability limits, while insurance and the declared value mechanism cannot, by themselves, fully correct this imbalance. The declared value mechanism, although designed to supplement the rigidity of liability limits through the shipper’s voluntary declaration and payment of additional charges, is limited in practice by standardized terms, formalistic declaration requirements, information asymmetry, and incentive distortions. This dissertation therefore argues that the periodic review mechanism already provided in Article 24 of the Montreal Convention should be made more substantive through a CPI-based dynamic adjustment model. Transport-risk factors, including high-value cargo, temperature-controlled cargo, digital monitoring, data management, and security management, should not be incorporated as independent variables in the adjustment formula. Rather, they should function as supplementary considerations at the periodic review stage in assessing the adequacy of the adjustment result. The second direction is a phased liability structure based on risk control and foreseeability. In multimodal transport, formal reliance on the segment in which loss is discovered may create gaps in attribution and opportunities for strategic reliance on favorable limitation rules. In digitalized carriage, electronic transport records, real-time data, sensor information, and AI-assisted decision-making materials make it increasingly possible to assess the foreseeability and controllability of risks. On this basis, the dissertation argues that the intensity of liability, the burden of explanation, and the effect of limitation of liability should be differentiated according to the degree of the carrier’s risk-control capacity and foreseeability. Where foreseeability and risk-control capacity are high, the carrier’s management and explanatory duties should be more strictly assessed, and the invocation of liability limits may require closer scrutiny. Where risks are only partially foreseeable or controllable, liability should be assessed by reference to the reasonableness of the carrier’s management system and explainability. Where risks are highly external and lie substantially beyond the carrier’s control, the possibility of exemption or mitigation may be more broadly recognized. This phased structure does not seek to replace the Montreal Convention, but to refine the operation of the fault-limitation linkage structure within the existing convention framework. The significance of this dissertation may be understood in three principal respects. First, it reinterprets the Montreal Convention’s cargo liability regime through the analytical lens of the fault-limitation linkage structure. Rather than treating liability attribution, multimodal transport, digitalization, and limitation of liability as separate issues, the dissertation integrates them into a single framework and shows how each reveals a different dimension of the same problem of institutional adaptability. In this respect, the study provides a systematic basis for reconsidering the relationship between the basis of liability and the operation of liability limits in contemporary international air cargo transport. Second, the dissertation develops a concrete interpretive framework for responding to the challenges posed by multimodal and digitalized carriage. In relation to multimodal transport, it proposes a risk-control-centered approach to liability attribution, aimed at addressing segmentation, uncertain loss location, and strategic reliance on limitation rules. In relation to digitalized carriage, it proposes data-based assessment of foreseeability and risk control, supported by duties of data preservation, production, and explanation, as well as responsibility for the management of AI systems. These proposals translate the structural problems identified in multimodal and digital transport into workable criteria for liability assessment. Third, the dissertation offers a reconstruction model that connects the adjustment of liability limits with the refinement of attribution standards. The proposed CPI-based adjustment mechanism addresses the macro-level problem of the declining real value of liability limits, while the phased liability structure addresses the micro-level problem of aligning liability attribution and limitation effects with the carrier’s actual capacity to foresee and control risk. By combining these two directions, the dissertation seeks to provide a coherent and incremental approach to the modernization of the Montreal Convention’s cargo liability regime without abandoning the stability of the international uniform law framework. Ultimately, this dissertation does not argue for the wholesale replacement of the Montreal Convention. Rather, it seeks to show that the Convention’s fault-limitation linkage structure can be reconsidered and refined from within, by activating the adjustment possibilities already embedded in the Convention and by developing more nuanced criteria for liability attribution in light of contemporary transport realities. In this respect, the dissertation aims to provide an analytical foundation for future institutional reform and further research on the liability regime governing international air cargo transport.

목차 (Table of Contents)

• 제1장 서론 1
• 제1절 연구 목적 1
• 1. 연구의 필요성 1
• 2. 연구의 목적 5
• 제2절 연구 범위와 구성 7
• 1. 연구의 범위 7
• 2. 연구의 방법 8
• 3. 연구의 구성 10
• 제2장 국제항공화물운송인의 책임체계-배상한도 연계 구조의 형성 12
• 제1절 논의의 기초 12
• 1. 선행연구의 검토 12
• 2. 주요 개념의 정의 16
• 제2절 바르샤바체제에서의 연계구조 형성 19
• 1. 바르샤바협약의 책임구조 19
• 2. 협약의 개정과 책임한도의 조정 26
• 제3절 몬트리올협약에서의 연계구조 정착 36
• 1. 협약 제정과 규범의 통일 36
• 2. 무과실책임원칙과 책임한도의 결합 40
• 3. 연계구조의 비교법적 검토 48
• 4. 연계구조의 현실적 재검토 49
• 제3장 복합운송에 따른 연계구조의 적용 한계 54
• 제1절 단일운송 전제와 복합운송 현실의 괴리 55
• 1. 항공연계 복합운송의 개념 55
• 2. 단일운송 중심 책임체계와 복합운송 56
• 3. 책임주체의 다원화 57
• 제2절 책임원칙과 책임한도의 충돌 59
• 1. 운송구간별 책임원칙의 차이 59
• 2. 항공운송기간의 해석 63
• 제3절 손해발생구간 특정 곤란과 책임한도 선택 67
• 1. 구간 특정 곤란과 입증책임 67
• 2. 관할권 선택과 한도 변동 74
• 3. 복합운송주선업자의 한도 전략 75
• 제4절 소결: 구간논리의 한계와 위험통제의 연속성 78
• 제4장 디지털화에 따른 연계구조의 적용 한계 82
• 제1절 전자운송기록과 증거구조의 변화 83
• 1. 전자운송장과 형식요건 84
• 2. 전자화와 책임배분 87
• 3. 전자운송기록의 증거법적 평가 87
• 제2절 IoT와 객관적 책임요건의 변화 89
• 1. 실시간 데이터와 관리기간 89
• 2. 기술적 결함과 책임범위 95
• 제3절 AI 의사결정과 주관적 책임귀속의 변화 99
• 1. AI 의사결정과 책임귀속 구조 99
• 2. 기술적·구조적 불일치 101
• 3. 책임귀속 기준의 이동과 한도 연동 104
• 제4절 소결: 데이터 기반 예측가능성과 위험통제 기준 104
• 제5장 책임체계-배상한도 연계구조의 개선 방향 108
• 제1절 책임한도 조정방식의 개선 108
• 1. 보험 메커니즘의 한계 108
• 2. 신고가액제도의 한계 111
• 3. 책임한도 개선의 필요성 118
• 4. 고정한도의 한계와 제24조 정기검토 122
• 5. CPI 기반 동적 조정기준 127
• 6. 운송위험요인의 보완적 고려 128
• 제2절 위험통제·예측가능성 기반 단계적 책임구조 132
• 1. 단계적 책임구조의 원리 133
• 2. 복합운송에서 위험통제 중심 책임귀속 기준 136
• 3. 디지털 환경에서의 예측가능성 중심 디지털 책임 141
• 4. 책임단계와 한도 효과 144
• 제3절 소결 150
• 제6장 결론 152
• 참고문헌 157