مسئولية الناقل الجوي بالنسبة للتعويض عن الضرر المعنوي بموجب اتفاقيتي وأرسو ومونتريال

Abstract EN

This research deals with the responsibility of the air carrier with regard to compensation for moral damage under the Warsaw and Montreal conventions, and it was studied in three sections.

the first section presented the efforts of the international community to unify the rules related to the responsibility of the air carrier and the stages of development of the nature of the responsibility of the air carrier under the Warsaw convention, which began with the aim of unifying the rules of air transport, in addition to seeking to protect airlines as a newly established industry, then its development with interest in providing fair protection and appropriate compensation, which led the countries to amend the Warsaw convention through a number of protocols, ending with the replacement of the Warsaw convention and its amending protocols with the Montreal convention, with the aim of creating unified and comprehensive convention.

in the second section, we presented the compensation for moral damage under the Warsaw convention of 1929 with an attempt to explain the most important jurisprudential opinions and judicial trends.

we noted a different judicial trend with regard to compensation for moral damage according to the convention, which can be divided into two stages.

the first was before the ruling of the us supreme court in its famous decision in the case of eastern airlines, Inc.

v.

Floyd, and the second is courts trend after the above decision, which is the cornerstone for compensation for moral damage, both in the united states as it was issued by the highest court, and in other countries because many non-American courts have adopted the principle established by in that decision and relied upon it.

the third section sheds light on compensation for moral damage under the Montreal convention of 1999, and the great interest of the delegates of the signatory countries, and their agreement and support for the idea of compensation for moral damage, in contrast to the direction of the drafters of the Warsaw convention.

then we presented the final version on which article 17 appeared, and we studied after that the trend of the judiciary in interpreting the said article, which showed judicial instability in its interpretation.

consequently, these factors showed the importance of studying the extent of the need for the judiciary to expand its interpretation of article 17 of the Montreal convention, relying on many reasons, mainly, the absence of any requirement by article 17 for a causal relationship between moral damage and bodily injury, and the development in the field of medical sciences.

in view of the discrepancy in the interpretation of the article, the need to amend the text of article 17 of the Montreal convention was discussed, due to diminishing the reasons for reluctance to recognize purely moral damage, and the fact that compensation for moral damage is consistent with the prevailing trend in other transport conventions, and illustrating that refusing compensation for moral damage contradicts human rights principles.