مجتبی اشراقی آرانی

It can be confidently stated that Iran's aviation industry has suffered the most from the unilateral sanctions imposed by the United States, while these sanctions contradict specific international regulations that other sanctioned industries lack such legal backing. Most writings and arguments presented to demonstrate the illegitimacy of the sanctions against Iran's aviation industry have thus far centered around general issues such as human rights violations and threats to human safety. However, the specific rules of international air law provide the best foundation for filing an independent complaint against the United States, having been utilized by other countries in similar matters. These rules include: the contradiction of the sanctions with the international characteristics of aviation regulations and the condemnation of the extraterritorial application of national laws concerning non-American entities; incompatibility with the development of international civil aviation; incompatibility with the prohibition of the misuse of civil aviation; violation of the principle of equality of opportunities in international civil aviation; and, ultimately, a breach of aviation safety. Furthermore, the International Civil Aviation Organization (ICAO), as a dedicated forum for resolving disputes in civil aviation, offers unique capacity regarding jurisdiction and procedures for filing complaints that is not found in other sanction-related matters. This article, after reviewing the unsuccessful efforts to lift the sanctions under the Joint Comprehensive Plan of Action (JCPOA), examines the aforementioned substantive aspects and the proper process for filing a complaint in the specialized forum of ICAO.

Many contractual and administrative services of carriers, especially in the field of sea transportation, are provided by their commercial representatives, so that in most cases, traders, especially shippers, only deal with the representative and basically do not communicate with the carrier or the ship owner. This issue is especially prominent when the shipping operation is carried out by a foreign shipping company. However, after damage to the cargo or violation of the carrier's obligations for any reason, the commercial representative benefits from the immunity resulting from the "principle of non-responsibility of the representative for original actions" and in this regard, the Supreme Court of the Supreme Court has considered the case of the sender against the commercial representative of the carrier to be inadmissible in the unanimous ruling No. 29 dated 10/7/1363.This is despite the fact that the said decision was issued by some business representatives regardless of their role as a contract holder, and on the other hand, in the case of foreign transport operators, it obliges traders to refer to foreign transport companies that do not have any property or assets in Iran, and in this way, many maritime losses of traders remain uncompensated.

The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to vessel for instance) or another mode (sea vessel to vehicle, vehicle to aircraft, etc) which is called “transshipment”. Transshipment from a technical viewpoint, is a cargo management operation which along with other methods, including “Ro-Ro carriage” and “Cross-stuffing” leads to less cost in transportation. However, in the legal terms it might be deemed as “deviation” and a fundamental breach of the contract.Transshipment is either predicted by the parties to contract of carriage (bill of lading) or the fortuitous events in the voyage necessitate such operation. This issue is so important that not only in the bill of lading but also in the sale contract and letter of credit is dealt with and one must answer this question that in the case of no agreement on the transshipment, is such operation, in principle, allowed or not? Obviously, this operation brings about delay in the process of carriage and other risks like sea pollution (in the case of oil transfer) which affects the interests of not only the cargo owner but also other merchants including the LC issuing bank and even the state authorities like department of Customs. Therefore, this article is going to scrutinize the legal conditions under which the carrier is authorized to do transshipment in accordance with the international conventions and the particular contractual conditions like “liberty to transship clause”.Moreover, the consequences that such operation brings in terms of the liability and rights of carrier are dealt with in this article. These consequences are analyzed in two parts: when the transshipment is allowed and when it is not allowed. In the latter case, one should see whether the same impacts of deviation under maritime law are applied on trans-shipment so that the contract of carriage is frustrated and the carrier is deprived of invoking to liability exclusions and limitations (based on the international conventions) or some other peculiar consequences must be looked for. On the other hand, this article has analyzed the consequences of allowed transshipment in particular, whether the carrier liability ceases to continue after the transshipment or he is still liable for all damages; moreover, this issue is dealt with that whether the exclusion of liability clause for damages after transshipment is valid or not. Finally, the carrier entitlement to freight after the transshipment is discussed in this article further to the person who is liable for transshipment costs: carrier, shipper or consignee? According to the explanations given in this article, it can be concluded that despite the many risks caused by transshipment or the transfer of cargo from one device to another, this operation is an integral part of transporting goods in Many items have been converted. The advancements of the transportation industry, especially the container revolution, have helped to resolve the concerns of traders about the risks and costs of transshipment, so that the agreement between the buyer and the seller on the possibility of transshipment if the cargo is transported in a container, is recognized by the legislative authorities and the International Chamber of Commerce, a clear example of which can be seen in UCP 600 (Article 20).Not only transshipment is done under the strict control of government authorities to reduce the scope of fraud in relation to export, import and customs regulations, but in the private relations of the parties to the contract of carriage, the principle is that the transshipment is impermissible unless according to the explicit or implicit agreement of the parties or the procedure of the related business is that the transshipment is predictable and within the common intention of the parties, or that due to unforeseen reasons, the completion of the voyage depends on it, which in the latter case, the Iranian Maritime Law (Article 157) not only allows the captain but also obligates him to transfer the cargo by another means.Unauthorized transshipment, although according to the opinion of some jurists, it produces the same effects as "deviation" in maritime law, but the opinion that only considers it a fundamental violation of the contract of carriage and causes the right of termination and compensation for the cargo owner is in accordance and more compatible with the legal rules. In the assumption that the carrier is authorized to carry out these actions, the governing spirit of the international regulations of transportation as well as the Iranian commercial law indicates that the responsibility of the carrier remains after the transshipment, although the exclusion of liability clause for damages after that should also be legitimate under certain conditions.Also, it is concluded in this article that the costs of transporting the cargo by another means of transport due to the termination of the transport contract and according to the rule of the management of third party’s property (which is applicable in fortuitous transshipment) should be charged to the account of the owner of the goods, unless the incident is temporary and the carrier is in line with the execution of the contract has taken it upon himself. The same reasoning will apply to the carrier freight the carrier shall not be deprived of its outstanding freight due to transshipment.

The advantages of air transportation in terms of human welfare, economicgrowth and social integration are outstanding and undeniable. However, thehigh speed of aircraft has made such means of transportation as the mainfactor of spreading viruses and communicable diseases among the countries.Spread of Covid-19 virus from China to other countries by aircraft and thedisruptive role of some airlines in this regard necessitated a re-thinking ofthe air carriers; liability. Regardless of the social liability of air carriers, theircivil liability for spread of virus between the passengers has becomecontroversial among the scholars. The basic issue to deal with is that on whatconditions an air carrier might be held liable for such spread of virus. Acomprehensive analysis of this issue, requires a re-thinking of the concept of“sinister/occurrence” within air transportation under article 17 of WarsawConvention 1929 or Montreal Convention 1999, further to the generalobligations of air carriers for compliance with the relevant healthrequirements.

The growth of airlines and competition, has raised new challenges for the exploitation of airport land infrastructure, out of which, the slot allocation in hub or dense airports is the most important one. The history of airports in the world has seen many rules in this regard, so that while in the beginning, “first-come, first-serve rule” used to be applied in many airports, the growth in demands made the regulators to devise new rules for slot allocation. Sometimes, committees comprised of the airlines were in charge of such delicate issue, but the rising anti-competitive practices and deadlock in agreements led the governments to step in and regulate the slot allocation based on various rules including “grandfather right rule”, “use it or lose it rule”, “buy-sell rule”, “lottery”, etc. Such rules which are followed by slot mobility and the possibility of taking it as collateral are dealt with in this article with emphasis on the economic and legal points of view and with a comparative study of EU, USA and Iranian law.

Aircraft has strategic status for the states, so that it has been regulated in every respect in both international and national contexts. No one may deny the invaluable role of air transport in the economy of all countries, as any pause in the aircrafts operation may encounter the objection of passengers and businesses and result in vast damage to the society. Therefore, the attachment of aircraft need to be excluded from the general rule of attachment of properties. This necessity, while is unavoidable, may conflict with duties of the general authorities who have to arrest the aircraft in certain conditions, or the rights of patent owners or creditors who have no choice other than to arrest the aircraft in order to enforce their rights. This article analyzes the rules which govern the attachment of aircraft (including administrative attachment, attachment due to patent infringement and precautionary or in-execution attachment) with reliance on international conventions and comparative study of the low of France and England.

During the 1960s, the shipping industry underwent a tremendous change, well known under the term “the container revolution”. Container brought about enhancement in speed, safety and security of transportation and led to the costs saving as well. The legal issues arising from this phenomenon have been subject to many controversies since the very beginning. The legal nature of container (whether it is deemed as a package or not), the various relationships arising from issuance of several bills of lading (groupage BL and house BLs) for one container, determining the liable person in the case of damages to the cargo (while existing in the sealed container), liability for incorrect stowage of cargo in the container or stowage of container on the deck are the main issues that are analyzed in this article.

Insurance is an important economic institution which via risk sharing and mitigation brings growth and prosperity for the society. However, some factors might make the insurance to lose its efficiency and consequently the insurance market and economy would fail. The most important reasons for this failure include: adverse selection, reverse adverse selection, moral hazard and reverse moral hazard, all of which stem from dual information asymmetry before and after conclusion of contract. The law can play an important role in controlling these barriers of efficiency that this article has reasoned –with emphasis on Iranian law- that law-making could prevent market failure resulting from the above impediments.

Evidential value of bill of lading concerning the cargo specification is confirmed by all international conventions. This function works unless the carrier insert reservation in the bill of lading. The validity of reserve is an issue which is less addressed by Iranian doctrines, as one may infer from reservation non-liability clause which itself is declared to be null and void by the international conventions. So, does the validity of reserve depends on agreement by the consignor? Or shall it be reasoned in a way that the grounds for the reserve shall also be inserted in the bill of lading in order to be effective? On the other hand, the carrier might refuse to insert reserve in the bill of lading either personally or per request of the consignor and receiving a letter of indemnity from the latter. Is carrier liable vis-à-vis the consignee for ignoring the reserve and concealing the truth and shall the letter of indemnity be considered as valid and effective? The legitimacy and validity of conditions of reserve on one hand, and the effects of reservation on the other hand are among the issues which are analyzed in this article in view of comparative study of English and French legal systems and international transport conventions. It is concluded that the carrier’s reserve in the bill of lading is a unilateral act which does not require the consent of the consignor except under CMR Convention under which the effectiveness of reserve is dependent on the consignor only vis-à-vis the latter and not towards the third parties, i.e. the BL holders. However, the reserve shall be justified in order to be valid and the cause of reservation shall be specified together with the reserve as well, under the later international regulations (Hamburg Rules). In terms of consequences of reservation, it is worth noting that by reservation the burden of proof shall lie upon the BL holder while without it the carrier himself should have proved that the damage had been incurred before his taking delivery of the cargo. Also, the agreement not to insert reserve in the BL is effective between the carrier and the consignor unless they have an intent to defraud the third parties. However, the above agreement or the Letter of Indemnity in substitution of reservation could not be adduced by its parties against the third parties.

The goods shall be subject to customs formalities while crossing national borders in international transportation. The main duty to meet the above formalities lies against the cargo owner which, in deed, is assignable to an agent _ who might be the carrier. However, the carrier itself is obliged to submit a summary declaration of the total cargo before the customs authorities prior to the cargo unloading. The summary declaration is submitted based on the transport documents so that the governing rules could only be construed in line with the transportation law. The legal basis of summary declaration, the exemption from this duty, the carrier who shall declare, the legal nature of manifest and the remedy of non- compliant declaration are some of the issues that are dealt with in this article. This article is distinct in this respect that it has analyzed a customs legal rule from the perspective of transport law.

Financiers usually enjoy various security devices for guarantee of the repayment of the principal and interest, among them one which is very prevalent, in particular in unsecured finance, is “negative pledge covenant”, according to which the borrower promises not to encumber his assets in favor of any other creditor. This clause purports to protect the financier, who is unsecured, vis-à-vis other creditors of the borrower, who have priority, upon enforcement of his claim out of the borrower's assets. Although this clause, which has various kinds, is basically binding inter partes, in some types, the so-called “affirmative negative pledges” might lead to security interests. The negative pledge clause is popular in corporate finance and not only the validity of this clause, but also its default remedies –in particular against third party creditors who have gained the security interests in borrower’ assets- would be rather illusory under Iranian law. The definition, legal nature, validity and default remedies of negative pledge clause are among the main issues which are examined elaborately in this article with a comparative study of English and Iranian law.

What appears from contract for carriage of cargo is that it is concluded between the sender and carrier, under which the carrier is obligated to carry the goods to the destination and deliver them to the consignee. However, this appearance might not reflect the truth, in that the consignee is the main beneficiary in the transport operation consequently, he might not only be entitled under the contract of carriage but also be obligated by the same contract. As a result, this question might arise that whether the consignee could be deemed as a party to contract of carriage or not? Some believe that the consignee is a third party vis-à-vis the contract of carriage, while others see him a contract party either in the form of a bilateral contract (omitting the sender from the circle) or a tripartite contract. On the other hand, the same question arises concerning the carrier as in most of the cases more than one carrier is involved in the carriage operation. It is worth noting that the subject of this article, which is of many legal consequences on the parties involved, is analyzed with a comparative study of French and English law and also the international transportation conventions.

In countries, which have not yet realized all the needs and necessities of large industrial societies, it is not uncommon to find people who question the nature of Air Law or deny its originality and independence. Helping to understand the concept and features of Air Law and the need to pay more attention to this branch of law in Iran, is the subject of this research paper. To this end, 14 features of Air Law, were reviewed and the recurrent questions about its nature have been clarified and answered. In Study of the nine features (positive features), the originality and independence of this branch of law has been verified and then by the criticism and rejecting of the five common points of view regarding the Air Law, the originality and independence of this field has been further verified. . . . . . . . . . . . . . . . . . .

Airline companies due to the industry's own Hsasyt Hay economic issues such as the high cost of fuel prices, regional wars, and lack of seasonal demand from passengers, political sanctions and terrorism dumped into bankruptcy. In addition to these, the aviation industry, an industry which is considered expensive that owns a major factor in throughput is and difficult to administer these firms to be placed sensitivity. Hence the study of the history of the aviation industry, we have seen many bankruptcies. In the event of bankruptcy of an airline, the airline industry should assess its impact on the two basic elements occur. The passengers to serve as the main consumers of air transportation and airports as infrastructure, aviation Pillars. Assumptions such as that whether travelers are affected by this phenomenon? Whether the airline's bankruptcy effect on contractual relationships with airports and their economic performance. This paper seeks to answer these Assumptions and by demonstrating the impact of the bankruptcy of airline companies on the above, in addition to the emphasis on prevention of bankruptcy of airline companies, on the integrity of these solutions is necessary.

Aircraft finance has been followed with various legal challenges in international venue as a result of the aircraft natural characteristics; so that financiers have always faced with risk of non-recognition of thier rights or related privilages or denial of or inefficient exercise of of their remedies in relation to the aircraft by other countries. The first international effort for solving the said problems was realized in Geneva Convention on International Recognition of Rights in Aircraft(1948) but due to its deficiencies did not obtain the financiers’ acceptance. Consequently another deal was necessarry to minimize the above-said challenges further to removal of the Geneva deficiencies. This purpose was realized in Cape Town Convention on International Interests in Mobile Equipments after half of a century in 2001. Experts believe that Cape town Convention has produced more clarity and certainty in aircraft finance and consequently has made increase of its availability and reduction of its expenses. This article has argued that the said results come from six legal principles which are inferrable out of the provision of the Cape town convention and form its fundamentals.

Public reliance on air transport industry as one of burgeoning factors of world economy is based on aviation safety. But the current challenge of aviation industry is the lax surveillance of safety standards by related governments which is basically due to illegal registration of aircraft. This article with reliance to the position of legal elements in achieving aviation safety has analyzed the problem of aircraft flag of convenience and consequently has provided some solutions for alleviating its effects in this industry.

Acquaintance with the rules and regulations governing new fields of law requires the availability of and research in those domains. Aviation insurance law is one of the newest fields whose sources have been formed in the international domain. International Conventions, aviation insurers’ customs, and regional and domestic regulations are the most important sources of aviation insurance law which are analyzed in this article in order to reach a better comprehension.

The time when breach of contract is realized, has developed various rules in different legal systems. In some countries, the contract is recognized as being breached when in addition to the expiration of the obligation term, creditor has claimed the performance thereof. In other countries, it is necessary and also sufficient that the obligation term gets expired. However in other legal systems, prediction of breach in future makes applicable the sanctions related to a real breach of contract. In this article with explanation of the meaning of anticipatory breach and economic analysis thereof in micro and macro levels, the validity of this institution in international and domestic systems are analyzed.

Liability of air carriers especially in respect of liability limits has been subject of various regulations in both domestic and international levels. Our country by ratifying 1929 Warsaw convention and subsequent protocols in 1976 has regulated liability limits of Iranian airlines in various milestones including 1980، 1982 and 1984 and finally passed the Act of Delimiting Liability of Iranian Airlines in 2012 to apply the last amendments thereto. The said Act includes some considerable rules and points which are analyzed in this article in respect of the cause of act، its scope، limits of liability and comparative & economic analysis. In the end، some solutions are proposed to for amendment of the existing Act.

In spite of technology developments in aviation industry، the world is beholder of every day air incidents and casualties in different –especially developing- countries. Experts'' reports show that aircraft product defect is definitely making part of the cause. In this regard the liability of aircraft manufacturers in view of liability elements (negligence، product defect، causal relationship and damages) has been affected by aviation law regulations and standards from which this article is going to provide a general theory.

Presently، due to economic importance and the high value of intellectual property assets or their possibility to being damaged، having intellectual property insurance coverage is a necessity. However، since it is a new policy that provides special coverage of intellectual property risks، it is necessary to explain its elements such as risk (sinister)، insurable interest holder، time and the territorial limits of this policy، which are examined in this article.

The subject of liability insurance contract is the insured's liability debt. The insurer's obligation to indemnity is realized when within the contract term, damage is incurred by the insured. But according to claims-made clause (reclamation clause) the insurer's obligation is realized just when the first claim is made in the policy period, though damage itself, or the act causing it has been made before this period. This clause has been encountered with doubts and criticisms by French jurisprudence which is possibly due to misunderstanding about its real nature. Accordingly, this article has focused - after a preliminary representation of The Clause- on explanation of the Clause's legal nature in France and Iran.