[1] The meaning of grounds for exclusion of limitation of liability under Article 25 of the amended Warsaw Convention and the burden of proof

[2] Whether the air carrier may invoke Article 22(2) of the Warsaw Convention in a case where the air carrier issues a passenger's airline ticket and baggage check including all the elements required by Articles 3 and 4 of the Warsaw Convention as amended to the passenger (affirmative)

[1] The "act or omission committed with intent to cause damage", which is a ground for exclusion of limitation of liability under Article 25 of the Convention on the Unification of Certain Rules Relating to International Carriage by Air amended at Hague in 1955 (the amended Warsaw Convention), refers to an intentional act committed with intent to recklessly neglect the result despite being aware that his act is likely to cause damage. The burden of proof is against a person who seeks exclusion of limitation of liability clause, and the burden of proof can be proved by circumstantial evidence, but it cannot be assessed as an reckless act even if there is gross negligence, unless there is any awareness of the probability of damage.

[2] The baggage check referred to in Article 4 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air amended in 1955 at the Hague (the amended Warsaw Convention) may be a document separate from the passenger air ticket. However, a document normally amended for the reason that it is simple to combine and combine with the passenger air ticket to meet the requirements of Article 4(1) of the Convention, which is a combined document containing all the requirements of Article 3 and Article 4 of the Warsaw Convention, is issued “passenger air ticket and baggage check” and a combined document containing all the requirements of Article 3 and Article 4 of the Warsaw Convention. If a passenger was issued with a passenger air ticket and baggage check as a combined document containing all the requirements of Articles 3 and 4 of the Warsaw Convention, the amended provisions on the limitation of liability do not lose the right to use the amended provisions under Article 22(2) of the Warsaw Convention.

[1] Articles 22(2) and 25 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Revised Warsaw Convention) / [2] Articles 3, 4, and 22(2) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Revised Warsaw Convention)

[1] Supreme Court Decision 2001Da58269 decided Jul. 22, 2004 (Gong2004Ha, 1411)

Plaintiff (Attorney Kim Young-hoon, Counsel for the plaintiff-appellant)

French Civil Aviation Company (Attorney Ycheon-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na4920 delivered on December 3, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first and third grounds for appeal

Article 22(2)(a) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air amended at Hague in 1955 (hereinafter “the Warsaw Convention”) provides that “the liability of a carrier in the carriage of consigned baggage and cargo shall be limited to the amount of 250 mp per kilogram, except in a case where a passenger or a consignor reports the interests at the destination of arrival and pays additional charges that are necessary, in particular, at the time when he delivers the checked baggage and cargo to a carrier.” The former part of Article 25 provides that “the limitation of liability provision of Article 22 provides that “the carrier, its employees or agents are aware of the intention to cause damages or losses, but it is highly probable that the carrier, its employees or agents would cause damages (see, e.g., Article 208(2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air, which is amended at the Hague in 1955 (hereinafter “the Warsaw Convention”) and that there is no probability that damages have been damages caused by an act or omission.”

Examining the reasoning of the judgment below in light of the records, the court below is just in rejecting the plaintiff's assertion that the liability limitation provision shall not be applied under Article 25 of the Warsaw Convention as amended on the ground that there is no other evidence to acknowledge it, and there is no error in the misapprehension of the legal principles as to the grounds for exclusion of liability limitation limitation limitation or the amended Warsaw Convention Article 25 or Article 25-2 of the Warsaw Convention, as alleged in the grounds for appeal.

2. On the fourth ground for appeal

The Defendant’s assertion that the Defendant did not have the right to invoke the limitation of liability under Article 22(2) of the Warsaw Convention amended pursuant to Article 4 of the amended Warsaw Convention is a new assertion that was not made until the date of closing argument in the lower court, and cannot serve as a legitimate ground for appeal. [In addition, the Defendant may be a document separate from the passenger air tickets under Article 4 of the amended Warsaw Convention, but may normally be a document separate from the passenger air tickets, on the ground that the combination and integration of passenger airline tickets are simple for meeting the requirements of Article 4(1) of the Convention, which is a combined document containing all the requirements of Articles 3 and 4 of the Warsaw Convention, and that “Passensensensensengs B and galck” is issued, and in light of the record, the Defendant cannot accept the part of the amended Warsaw Convention, which constitutes a combination of the rights of Article 31(3)1 through 4 of the amended Warsaw Convention, and thus, cannot be seen as having been lawfully issued to the Plaintiff.

3. On the fifth ground for appeal

Examining the reasoning of the lower judgment in light of the records, the lower court is justifiable to have determined that there was no evidence to support that the Defendant knew or could have known the special circumstance that the damages alleged by the Plaintiff fall under damages due to special circumstances, and that there was no evidence to prove the value of the lost article itself, as alleged in the grounds of appeal. In so doing, the lower court did not err by misapprehending the legal principles on the grounds and the misconception of facts against the rules

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)