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Volume :46 Issue : 179 2020      Add To Cart                                                                    Download

The Influence of Enforcing the Principle of Good Faith on Restrictive Compensation Following Delays in Air Transportation According to Montreal Convention of 1999 and Kuwait Legal System.

Auther : Dr. Mohammad A. Almutairi - Mr. Mohammad M. Alazemi

Goal of the Study: This study aims to find a clear image of the situation of delay in the air transportation from the prospective of good faith principle. This is not to show the impact of good intention on acknowledging responsibility but rather to show the effect of good faith on applying restrictive compensation mechanism with financial limit. The study also aims to show the range of conflict between 1999 Montreal Convention with the principle of good faith, from one side, and finding legal and judicial evidences that facilitate the jurisdiction work in pulsing the good or bad faith of the carrier in the cases of delay from the other side.
Study Methodology: The study used mainly the analytical methodology where brief review was arranged on to what extent the principle of good faith contradicts with Montreal Convention of 1999 rules in order to clear its ambiguity. Then, legal stands were analysed in order to reveal places of contradiction between the principle of good faith and the Convention. After that, the constructive legal criticism was introduced which seeks finding legal solutions through enforced legislations or through probing future legal solutions that require amendment or addition to the legal texts, so that the principle of good faith becomes the basic in ruling whether the air carrier deserves applying the principle of restrictive compensation or not.
Study Results: Restricting compensation for the delay in the air transport as a methodology being applied without considering fair compensation is harmful to the principle of good faith that is profound in the United Nations and international commerce. Restrictive compensation for delay harms the fairness of Montreal principles in case of bad faith of the carrier is proven. Proving the bad or good faith of the carrier is an extra burden on the shipper or the passenger because it requires the carrier bad faith in causing the delay to be proven. Establishing simple proof regarding the carrier bad faith is the legal solution to guarantee the fairness of responsibility rules about the delay until the otherwise is proven.

Keywords: Air Transport, Delay, Damage, Passengers, Baggage, Cargo, Restricted Compensation, Principle of Good Faith, Montreal Convention of 1999.
 

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