МІЖНАРОДНО-ПРАВОВИЙ МЕХАНІЗМ ВІДШКОДУВАННЯ ШКОДИ, ЗАВДАНОЇ ПОВІТРЯНИМИ СУДНАМИ ТРЕТІМ ОСОБАМ: ПРОБЛЕМИ УНІФІКАЦІЇ ТА МОДЕРНІЗАЦІЇ

Abstract

The article devoted to the problem of compensation for damages, caused by aircraft to third parties. The article gives the comparative analysis of rules of the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, done at Rome in 1952; Montreal Protocol 1978, and the Montreal Conventions, signed at Montréal on 2 May 2009: the Convention on compensation for damage caused by aircraft to third parties and the Convention on compensation for damage to third parties, resulting from acts of unlawful interference involving aircraft. The author notes that despite repeated persistent calls from ICAO, Ukraine has not yet acceded to any of the named international treaties. Thus, Ukrainian aircraft operators today are not protected by any limits of compensation for damage in case of damage caused by their aircraft to third parties abroad.

The author states that the new Montreal Conventions of 2009 do not solve the problem of unification, but only exacerbate the problem. Instead of unification by adopting a single convention, the states were able to agree only on the modernization of the provisions of old international documents (The Rome Convention 1952; Montreal Protocol 1978) with two new Montreal Conventions of 2009. Thus, the number of legal regimes for compensation for damage has increased from two to four. Therefore, for the effective regulation of international relations in this area, the state must be a party to all four documents.

The author draws the reader's attention to the fact that neither the old Rome nor the new Montreal Conventions apply to cases of compensation for damage caused by a state aircraft. Any attempts to extend the rules of the conventions to compensate for damage caused by state aircraft have never met with widespread support from States.

A progressive feature of the 2009 Montreal Conventions is the responsibility of the operator, not the owner of the aircraft. However, the negative experience of the signing and ratification of the Montreal Protocol 1978 by states indicates the states' unwillingness to support this timely innovation. Therefore, there is no reason to believe that a similar approach of the Montreal Conventions of 2009 will find great support from states.

The new Montreal Conventions of 2009 establish a two-tier mechanism for compensation for damage to third parties, like the rules of the Montreal Convention 1999 on compensation for damage caused by death or personal injury of a passenger. This indicates the existence of a unified approach to solving the problem of compensation for damage associated with risks in civil aviation. At the same time, the author agrees with the point of view of his colleagues, who are skeptical about the new mechanism of compensation for damage in 2009, not considering it optimal. The author notes with regret that even these far from ideal norms have not entered into force and it is not known when they will. States are extremely reluctant to join even  the old Rome Convention of 1952, and the situation is even worse with the Montreal Protocol of 1978. There is no reason for optimism in the case of the new Montreal Conventions of 2009 either.

Nevertheless, the author notes that despite all the shortcomings of the international documents we have considered, today there is no alternative. The author shares the point of view that, overall, the rules of the Montreal Conventions of 2009 correspond to today's challenges and joining them is in the interests of Ukraine. So, the author argues for the advisability of signature and ratification by Ukraine all this documents: The Rome Convention 1952, Montreal Protocol 1978, and the Montreal Conventions 2009. Ukraine's accession to these international treaties will make it possible to settle the limits of compensation of Ukrainian aircraft operators for damage caused abroad.