[liability issue]

[Diana Gong]

to yusheng

check out this article: http://www.thespacereview.com/article/1948/1

 

and I finally know why we can't find cases:

 

"The standard of liability applied under the second scenario is a more arduous one in that it applies a fault liability standard whereby a state will be considered liable only if it can be shown that the damage caused was due to the fault of the state or states responsible for the launch of the space object as the case may be. To date, there have been no instances where the second scenario of the Liability Convention have been applied."

 

...

jingchao

龚竞超　Diana Gong

北京大学法学院 Peking University Law School, Beijing, China

Try again. Fail again. Fail better.——Samuel Beckett

[庞序]

谢谢Diana的分享，

我觉得在空间法中找不到案子，但是在其他法，尤其是国际环境法中是有严格责任的案件的。可以看一看能不能做类比，尤其看一看在严格责任的规则下，当事国是如何援引其他事由进行抗辩的。我随便一搜，找到一篇中文论文，里面刚好总结了一下涉及无过错责任的条约，可以参考。

祝好！

庞序

[Diana Gong]

多谢！那类比有优先级么？我看到文章里有说Rome convention and Civil Aviation里有类似的责任分配，maritime law里面也有，不知道这个会不会好一些？

 

p.s 这个问题真心很前沿。。都没有先例，估计真正做这个的这帮人也是这么研究的

 

 

--

[庞序]

我觉得优先级来源于“引用案件的重量级 x 引用案件的相似度”。所以如果有特别重量级的案子，比如特雷尔冶炼厂这种，只有一个比较minor的点相似也可以说，因为案件本身的结论很可能是通说，靠上一个点都是好的。如果有航空法、海洋法这样比较类似的，虽然可能是国内法院的案件，也可以引用，向法官证明这一类案件应有其独特的解决方法。

[Joe Pratt]

This articles clarifies what we already knew about the Liability Convention: it does not address accidents in space that are caused by two or more parties. It suggests that the ICJ or decision-makers could adopt a comparative fault standard (as in maritime law).

Vivian was developing an argument that Prospero was not at fault for the accident and therefore Caliban was somehow at fault for it. The logic, however, didn't necessarily follow. If Prospero wants to argue that Caliban is responsible for the loss of Miranda I, it must show that Caliban was somehow negligent or guilty of willful misconduct.

To establish negligence or willful misconduct, Prospero must use the same arguments it is using to argue that it is not responsible for the loss of Caliban Airlines Flight 281. The Liability Convention normally would hold Prospero absolutely liable for such an accident, unless Prospero can show that Caliban was also either negligent or guilty of willful misconduct.

There may be an issue of what the ICJ should do when a convention does not specifically address an issue, but the judges will likely also want to know what standard they should adopt should they choose to do so. If you have any important maritime or other international cases on comparative fault, they would be useful in this respect.


----- 原始邮件 -----
发件人: 庞序 <sd7958...@vip.sina.com>
收件人: Diana Gong <dianag...@gmail.com>
抄送: mootcl...@googlegroups.com
已发送邮件: Sun, 02 Jun 2013 11:19:30 +0800 (CST)
主题: Re: [liability issue]

[Joe Pratt]

Dear everyone,

With respect to the points below, here is some additional explanation. From a common law perspective, I am looking at what the parties can dispute. With respect to both Miranda I and Caliban Airlines Flight 281, I am looking at what each party can argue to (i) blame the other side, and (ii) deny its own responsibility for the two accidents.

Based on the facts, the only way Prospero can hold Caliban responsible for the accidents is to argue that jamming Miranda I prevented Miranda I from finding out about the discarded engines (and then sharing this information with others, including Flight 281). After all, Miranda I was not hit by Iris, and communicating with PSDA would not have warned Miranda I or Flight 281 of that danger.

If you are the counsel for Prospero, you must argue that Caliban is liable for Miranda I under a comparative fault standard (that the Court must adopt and that is consistent with Article III and other provisions of the Liability Convention), and that it is also responsible for Flight 281 under such a standard (as expressed in Article VI of the Liability Convention).

If you are the counsel for Caliban, you must argue that Prospero is liable for Flight 281 under an absolute liability standard (as expressed in Article II of the Liability Convention) and there is no evidence of "gross negligence" or "an act or omission done with intent to cause damage" that would exonerate Prospero (as expressed in Article VI of the Liability Convention). Furthermore, you must argue that Prospero is absolutely liable for Miranda I under a similar standard.

Yusheng expressed concern that this interpretation of the facts was unwarranted. From my perspective, it is a fair inference. At the same time, as a judge, I would never buy an argument that Miranda I being able to communicate with PSDA could have necessarily saved it or Flight 281 from the accidents. Again, the PSDA did not know about the discarded engines. If anything, such communication would make Prospero completely liable for both losses (because then it would be obvious that Miranda I could not communicate with Iris and thus learn about the discarded engines).

In other words, the only way you can make Caliban liable for either of these two accidents is to argue that the jamming prevented Miranda I from receiving Iris' emergency warnings.

You can maintain your other argument, but as a judge, I would raise the above objections to them. If you are Caliban, you also must have a good explanation for why Miranda I could not have communicated with Iris. If you say, "The facts do not indicate that Iris could communicate with Miranda I," I would respond, "Isn't it true Iris only lost power to its communications system and that Miranda I was close enough to Iris that the PSDA feared for a collision."

You can argue further with a judge, saying, "But still there's no evidence they could communicate." If a judge is determined to make that point, however, the judge will answer, "And there's no evidence they could not communicate," and you will lose.

Regards, Professor Joe



----- 原始邮件 -----
发件人: Joe Pratt <jpr...@pku.edu.cn>
收件人: mootclass2013 <mootcl...@googlegroups.com>
已发送邮件: Sun, 02 Jun 2013 12:05:12 +0800 (CST)
主题: 回复： Re: [liability issue]