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Essays on Aviation and Travel Law in Hong Kong Edited by Gary N. Heilbronn HONG KONG UNIVERSITY PRESS Published by HONG KONG UNIVERSITY PRESS University of Hong Kong 139 Pokfulam Road, Hong Kong © Hong Kong University Press 1990 ISBN 962-209-267-5 All rights reserved. No portion of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage or retrieval system, without permission in writing from the publisher Printed in Hong Kong by Wictle Offset Printing Company Limited. CONTENTS Preface vii List of Contributors x Air Travel in Hong Kong: Some Legal Aspects in Need of Reform Gary N. Heilbronn Legal Relations between Air Carriers and Travel Agents A.W. Hughes 31 Pricing of International Air Travel: A Hong Kong Perspective on Relevant Aspects of International and Municipal Laws A.W. Hughes 61 Legal Obligations Pertaining to the Security of Passengers in the Airport and On Board Aircraft Leaving Hong Kong Amelia Luk 91 In-flight Crime on Hong Kong-bound Aircraft David Tolliday-Wright 115 Hong Kong's International Travel Law Rights and Obligations Pursuant to OECD Requirements Anthony To 135 Aircraft Accident Investigation Procedures in Hong Kong Cheonghar Wong 157 PREFACE This collection of essays has been inspired by an increasing recognition of the significance of aviation law and travel law in Hong Kong. The essays, which should be of interest to legal practitioners, government officials and other professionals involved in any of the various aspects of the travel and transport industries, as well as the concerned traveller, are all the result of careful research by lawyers from different branches of the legal profession in Hong Kong: the Judiciary, the Bar, practising solicitors, the Legal Department of Government, and academia. Except for my own, they are based on research projects carried out by their authors as part ofthe requirements of the courses: International Travel Law and Aviation Law, in the Master of Laws programme in the Faculty of Law at the University of Hong Kong. The authors would like to thank the Faculty of Law and the Baker & Mackenzie Foundation for its assistance in achieving the publication of this collection. It is hoped that further compilations of writings on the many different facets of aviation and travel law will be published over the next several years. The present collection ranges widely over the field of travel and air transport law in Hong Kong. It commences with a study by the editor, of specific areas of air passenger transport which are controversial, potentially cause financial loss or considerable inconvenience to air travellers. This essay discusses the extent to which standardized contracts of carriage exclude and limit carrier liability to passengers; the rights of air travellers to a seat, and especially non-smoking ones, and how such rights have been given regulatory recognition in other jurisdictions. Also canvassed, are the civil liabilities of especially, scheduled airlines, for delays and denied boarding; as well as that perennial problem: the legal effect of reservations and 'bumping off' boarding lists, the rights of those hapless travellers suffering this fate and the regulatory options available to allow them even minimal financial compensation, not to mention a refund. The legal relationship between airlines and travel agents is the topic of the first of the two essays contributed by Wyn Hughes, of Denton Hall Burgin and Warrens, Solicitors, previously with the Legal Department of the Hong Kong Government. This paper explores a difficult area of law affecting the commercial relations between these two branches of the travel industry: aside from relevant principles of the common law and agency which apply, there is a discussion of the standardized form of agreements (with all their incorporated lATA traffic conference resolutions) which lATA and non-lATA airlines require their accredited sales agents to sign. Wyn's other contribution deals with the 'regulatory matrix' of air fares control for international passenger carriage. This paper delves into the extent to which international law and practice has established an institutional framework for the negotiation and agreement of air fares and explores the impact of the Joint Declaration and Draft Basic Law on the system. Hong Kong laws also have their role to play and their effects on pricing, as do the policies of the Air Transport Licensing Authority (A TLA). An original examination of the nature of tariff clauses in Hong Kong's past and present bilateral air services agreements, sheds a great deal of light on the unexpectedly conservative viii Preface approach (in view of the territory's traditionally 'laisser faire' economic policies), which has been taken by the British and Hong Kong Governments as regards the regulatory control of air fares. Some light is also shed on the allegedly 'secretive' processes of the International Air Transport Association (lATA), in the setting of scheduled international air fares, as well as the manner in which charter (non-scheduled) fares are proposed and imposed on the general public. Wyn also looks briefly at the enforcement of government- approved tariffs in Hong Kong, in view of US and EEC antitrust laws. The next two essays are concerned with different aspects of a common topic, of considerable interest to every traveller: aviation related crime. Amelia Luk, of the Legal Department of the Hong Kong Government, reviews legal measures to ensure airport security and safety of passengers on board flights departing from Hong Kong. She not only assesses the impact of the three 'hijacking' conventions on passenger security at airports etc., but probes international law measures designed to enhance this objective, such as the standards and recommended practices of the International Civil Aviation Organization (lCAO), and the inclusion of specific provisions for aviation security in bilateral air services agreements. Special consideration is given to legal aspects of pre-boarding screening procedures, and the possibility of the civil liability of governments and air carriers, arising not only out of inadequate screening, but also from negligence in the course of police initiatives aimed at regaining control of hijacked aircraft or 'hostage situations' in airports. The other side of the 'aviation security coin' is addressed by David Tolliday-Wright, of the Hong Kong and English Bar, who looks at the 'illegality' of criminal activities on board international flights destined for Hong Kong. He examines the jurisdictional aspects of municipal and international crime, emphasizing those international conventions which apply to Hong Kong, and govern offences on board aircraft, and the powers of aircraft commanders, aircraft 'hijacking' and offences directed against aircraft and aviation installations. Naturally, the effect of the 1997 'solution' on these offences and incidental issues such as extradition are also canvassed. The tone of the collection then changes somewhat with an comprehsive analysis by Anthony To, of the Hong Kong Magistracy, of the role of the Organization for Economic Co-operation and Development (OECD) in the formation of regulatory policy for the tourism industry in Hong Kong. The considerable expertise which Anthony possesses as a result of his former position in the Special Duties Unit of the Legal Department of the Hong Kong Government, gives important insights into the impact of international law on Hong Kong and in particular, emphasis is given to assessing the legal significance of the 1985 Decision-Recommendation of the OECD Council on Tourism Policy. This initiative has a broad impact on many aspects of international travel and tourism which lawyers and travellers alike take for granted, from the simple 'duty-free' import allowances, to the importation of tourism promotional material etc., the international circulation of vehicles, and the complicated commercial implications of this. The effects of other international maritime and air transport laws governing the facilitation of international border crossings and the potential impact of Hong Kong's future status and constitutional arrangements after 1997, are also given consideration, especially in terms of the international agreements and arrangements to which the PRC is already a party. The final paper in the collection is a contribution from Cheonghar Wong, a solicitor with Johnson Stokes and Master, Solicitors in Hong Kong, and deals with the subject of Preface lX aircraft accident investigation procedures, rather topical, in the wake of the 1988 CAAC air crash at Kai Tak International Airport. The nature of 'incidents' which warrant formal investigation is explored, as well as the investigatory options. The detailed powers and procedures of the Accident Investigation Division of Hong Kong's Civil Aviation Department in this regard, are analyzed. Some assessment occurs, of the implications of this investigatory process for potential civil litigants as well as persons involved in air crashes, especially as regards obtaining information and documentation pertaining to the investigation. All in all, the present collection, though consisting of essays on diverse topics, presents its readers, whether legally-trained or otherwise, and irrespective of their initiation into the intracacies of aviation and travel law , with a extremely lucid and useful account of the legal aspects of some of the highlights of an area of law which, until recently, has been somewhat neglected in Hong Kong. Gary Heilbronn 22 November 1989