Transport Law

This section includes literature on maritime / shipping law, aviation law, space law and land transport.

Air and Space Law (2020) 45 (Special issue)
This special issue includes the following articles:
  • Cassar, Roberto, 'Evolution or Devolution: Aviation Law and Practice After COVID-19' 3-16
  • De Leon, Pablo Mendes, 'National Reflexes Following the COVID-19 Outbreak: Is Sovereignty Back in the Air?' 17-38
  • Masson-Zwaan, Tanja, 'Combating COVID-19: The Role of Space Law and Technology' 39-59
  • Truxal, Steven, 'State Aid and Air Transport in the Shadow of COVID-19' 61-82
  • Ratajczyk, Mikolaj and Rita Sousa Uva, 'COVID-19 Pandemic and the Measures Taken by the European Union Aviation Safety Agency' 95-106
  • Grigorieff, Cyril-Igor and Chrystel Erotokritou, 'EU Regulation No 261/2004 on Air Passenger Rights: The Impact of the COVID-19 on Flight Cancellation and the Concept of Extraordinary Circumstances' 123-141
  • Trimarchi, Andrea, Robert Lawson and Andrew Harakas, 'The Potential for Exposure of Air Carriers to Passenger Liability in Respect of COVID-19' 143-153
  • Hanley, Donal, 'COVID-19 and International Aircraft Financing Law' 155-171
  • Jung, Lukas C and Lesley Jane Smith, 'COVID-19 and Its Impact on Space Activities: Force Majeure and Further Legal Implications' 173-193
  • Benjamyn I Scott et al, 'National Aviation Law Responses to COVID-19 ' 195-272

Albanese, Antonio, 'Mobility at the Time of the Coronavirus and Damage Caused by Vehicles Equipped with Electronic Safety Systems' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The introduction of technologies that make vehicles safer is important to address the foreseeable criticalities of road traffic due to the lower capacity of public transport as a result of social distancing measures. In this unique situation, the objective of limiting the spread of the epidemic cannot overshadow the prevention of accidents and human health must be guaranteed with respect to all possible risks. However, new safety systems are not completely failsafe. With these cases in mind, the article proposes to verify the extent to which current rules on civil liability in Italian law may offer solutions to damages caused by highly automated vehicles in terms of preventing harmful events and allocating their costs according to criteria of justice and economic efficiency. Within this logic, the analysis also looks at the rules on the distribution of compensation costs among the various parties that may be jointly and severally liable (driver, owner, custodian or manufacturer).

Banerjee, Somen, 'Will the Security Architecture of the Western Pacific Change Post-COVID 19?' (2020) 16(1) Maritime Affairs: Journal of the National Maritime Foundation of India 68-81
Abstract: The Indo-Pacific, combines a panoply of regions and blends multiple security architectures. Some regions are dominated by non-traditional security threats, while others are unstable and rife with security dilemma. Instability and disorder are most palpable in the maritime domain, especially in the geographical region of the western Pacific. From the beginning of 2020, China has intensified its assertiveness in the South China Sea, including the announcement of two administrative districts and transgressions by its survey ship Haiyang Dizhi 8. Some attribute these developments to the COVID-19 outbreak. Enhanced US posture in the region seems to have little effect on Chinese revanchism. This article assesses the spurt of developments in the South China Sea during the COVID-19 pandemic. It establishes the conceptual framework for analysing the change in the regional order. It evaluates the regional security architecture of the western Pacific and the efficacy of the putative order. The prospective change in the security order of the western Pacific and response is also examined.

Braakman, August J, 'Climate and COVID-19: Will the Shipping Industry Succeed in Charting the Right Course Between Scylla and Charybdis?' (2020) 26(2) Journal of International Maritime Law 102-108
Abstract: Discusses the EU institutions' need to balance Member States' measures towards zero climate change emissions and their aid measures to address the coronavirus pandemic. Examines the potential conflicts arising from the shipping industry's plight.

Carr, Chris and Cyrus A Ramezani, 'COVID-19, Force Majeure, and the Legal and Financial Implications of Utilizing Reefer Shipping Containers' (2020) 87(1) Journal of Transportation Law, Logistics and Policy (forthcoming)
Abstract: This article begins by discussing the rise of the refrigerated ('reefer') container industry and business model. It is important for readers to understand the growing importance of reefers to U.S. export, and how they contribute to supply chain complexity and port congestion. Next, we address how the Corona Virus (COVID-19) impacted reefer container transport. We then discuss how ocean carriers are utilizing the Force Majeure doctrine to their advantage in their transport of reefer containers, and the related legal implications of them doing so. We also analyze whether insurance covers cargo owner loss in this situation and what happens when the cargo owner decides to just walk away and abandon reefer containers when the ocean carrier exercises its right to discharge the cargo at an alternative port of convenience. The article concludes with recommendations regarding how cargo owners can move forward to analyze and mitigate risk.

Dale, Amy, 'COVID-19: All out To' (2020) 66 LSJ: Law Society of NSW Journal 40-43
Abstract: Many of the most severe restrictions imposed in the COVID-19 pandemic relate to overseas arrivals and border control. Currently, the most fatal cluster of cases is the Ruby Princess cruise ship, which docked in darkness as the outbreak was taking hold in Australia. In triggering emergency powers, what are our responsibilities to those stranded at sea?

Desmonda, Angela Jessica, 'Port Denials and Restrictions Policies during Covid-19 Pandemic Based on International Law' (2020) 7(3) Padjadjaran Journal of Law 380-399
Abstract: As a public facility, port has a significant potential to be cluster of the Covid-19 spread. Many states have implemented policies of denials and restriction of port access to protect people's health. This study aims to analyze port denials and restrictions policies settings based on international law. In addition, this study is to analyze whether the status of state of emergency will affect state's obligations based on international law. This study was conducted by analyzing associated international treaty law and customary law. The study concludes that no international treaty law and customary law prohibit port denials and restrictions because port is under the sovereignty of respected coastal state. The state is free to implement any policies. Without any permit, foreign ships are not allowed to enter and dock at the port of the coastal state. However, in a situation of danger or distress, foreign ships have the right to enter port. The IHR 2005, as a special instrument dealing with public health, also provides an opportunity for coastal state to prevent ship embarking and disembarking passengers if the ship is exposed to a pandemic disease, such as Covid-19. In such case, foreign ship may be prohibited from entering and docking at port of coastal state. On the other hand, in a situation of danger or distress, foreign ship has the right to enter port. In contrast, the 1923 Port Convention gave permission to state to close ports in urgent situation that endangered national security.

Faqiang, Li and Elvina Abliakimova, 'Safe ports: law, theory, practice under conditions of the COVID-19 pandemic' (2020) 4 Lex Portus 7-34
Abstract: The article examines modern practical approaches to ensuring the safety of seaports as hubs of logistics centres for international trade and replacement points for ship crews under the conditions of the COVID-19 pandemic. The historical retrospective of the formation of anti-epidemic legal instruments to counteract the spread of particularly dangerous and rapidly spreading diseases is outlined. It is emphasized that the COVID-19 pandemic and the quarantine restrictions imposed by it in the states belong to the range of force majeure. The approaches of national legislations, international agreements, case law, and time charter pro-forma to the legal category of 'safe port' are analyzed. Emphasis has been placed on shifting priorities in port security from those prevailing since the early 2000s to terrorist, technical and navigational threats to threats related to the spread of the COVID-19 and to take measures to prevent the spread of the disease. The study develops the concept of ensuring a universal approach to the formation of protocols and best practices to combat the spread of COVID-19 and the introduction of increased financial sanctions in case of violation of the established rules.

Kamalnath, Akshaya and Hitoishi Sarkar, 'Airline Insolvencies' (SSRN Scholarly Paper No ID 3707823, 8 October 2020)
Abstract: An important aspect of business is the possibility of insolvency. India's new insolvency law, the Insolvency and Bankruptcy Code, 2016 (IBC) has attempted to streamline insolvencies and facilitate restructuring; although there are particular issues for airline insolvencies. The issue of cross-border insolvencies further remains unaddressed in the IBC and is particularly relevant to airlines. This chapter aims to outline international best practices in corporate insolvency and also India's approach; with a specific focus on the civil aviation sector.This chapter is divided into five parts. The first part is the introduction. The second part gives an overview of the goals of corporate insolvency and the legislative framework in India. Part III explores specific solutions for insolvencies of companies in the civil aviation sector internationally. Part IV details airline insolvencies in India and Part V concludes with some thoughts about the future legislative reform and development in India.

Kaye, Stuart, 'Port Access and Assistance to Cruise Ships during the COVID-19 Pandemic' (2020) 94(6) Australian Law Journal 420-426
Abstract: One matter that dominated headlines internationally and in Australia at the start of the COVID-19 pandemic was the situation of cruise ships and access to ports. Media coverage of large ships at sea, or in port under quarantine, was widespread, and the fates of these ships meant their names, such as Ruby Princess, Diamond Princess, and Westerdam, became common knowledge. This article considers the applicable law dealing with entry of ships into Australian ports and quarantine restrictions, as well as the circumstances wherein they can remain or be expelled, and what obligations exist to provide assistance.

Klein, Natalie, 'International Law Perspectives on Cruise Ships and Covid-19' (2020) 11(2) Journal of International Humanitarian Legal Studies 282-294 < https://brill.com/view/journals/ihls/11/2/article-p282_282.xml >
Abstract: Cruise ships have contributed to the spread of covid-19 around the world and State responses to the pandemic have needed to account for the presence of these ships in their ports and the medical treatment of both passengers and crew on board. This contribution outlines the key bodies of international law that must be brought to bear in deciding on State action in response to cruise ships and their covid-19 cases: the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance. While these laws tend to reinforce each other, it is argued that the need for humanitarian considerations to feature strongly in State decision-making is challenged by systemic weaknesses.

Majumder, Bodhisattwa and Devashish Giri, 'Coronavirus & Force Majeure: A Critical Study (Liability of a Party Affected by the Coronavirus Outbreak in a Commercial Transaction)' (2020) 51(1) Journal of Maritime Law & Commerce 51-63
Abstract: The article discusses the issues on the use of the force majeure clauses in commercial transactions due to the coronavirus pandemic when the virus is not explicitly included in the terms of agreement. Also cited are the clauses' aim to eliminate the liabilities of both parties in a contract, a background of the pandemic that affected up to 24 countries, and the Principles of International Commercial Contracts detailing why the pandemic is a force majeure event.

Mukhopadhyay, Mayukh, 'CruiseLiners in the Time of COVID' (SSRN Scholarly Paper ID 3827134, 15 April 2021)
Abstract: In this article, we discuss how the Cruise Industry had to voluntarily shut-down due to the outbreak of COVID Pandemic. We begin by studying the complex logistics the cruise-liners had to employ to disembark redundant crew members to various ports around the world. Then we highlight the dilemma and paradox involved in letting off the crew but not the ships for sustainable operations. Finally, we narrate how the industry survived on surplus cash to conduct bare minimum runaway operations and future challenges they might face from the tourism sector, even after vaccinated drive.

Okerman, Justin and Barbara Von Tigerstrom, 'Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic' (2021) Canadian Yearbook of International Law/Annuaire Canadien de Droit International (advance article, published 11 May 2021)
Abstract: The current international framework that purports to regulate the spread of communicable disease in the context of maritime traffic is a fragmented, internally inconsistent, and inadequately enforced patchwork of treaties (including the International Health Regulations (2005)) and customary international law. The COVID-19 pandemic has tested the current framework and revealed it to be inadequate to deal with a major global health emergency. States have imposed or failed to impose varying control measures, the effects of which have been witnessed on board passenger vessels around the world. The cruise industry, in particular, has a significant global economic impact; therefore, appropriate, enforceable international regulation is necessary to ensure the adequate control of future communicable disease outbreaks.

Power, Vincent, 'COVID-19 / Coronavirus and European Union Shipping Law: An Interim Analysis' (2020) 26(1) Journal of International Maritime Law 14-31
Abstract: This article seeks to assess how the European Union has responded so far to the COVID-19/ Coronavirus Crisis in terms of various aspects of EU shipping law. It begins with a short overview of the general EU response to the crisis so as to set the context and then considers the various issues thematically including issues of health, repatriation, state aid, passenger rights, restrictions on travel and movement, the shipment of waste and port charges.

Saari, Che Zuhaida, 'An Early Analysis of Malaysian Law on Drone Operations for COVID-19 Pandemic' (2020) 3(1: Special Issue-Syariah and Law in Facing COVID-19: The Way Forward) INSLA E-Proceedings 50-60
Abstract: COVID-19 or Coronavirus 2019 is a contagious disease that is distressing the world today. It was first detected in mid-December 2019 in Wuhan, Hubei, China. On March 11, 2020, the World Health Organization (WHO) declared it as a world pandemic. A total of 36 237 403 cases have been reported to the WHO (as of October 9, 2020) involving 1 054 868 deaths from various countries. While the number of cases in Malaysia is 14 722, with 152 deaths. Various initiatives have been and are being made by the Malaysian government in addressing the crisis including the Movement Control Order (MCO) and Recovery Movement Control Order (RMCO). This paper discusses how drone technology has been used in assisting the Malaysian government to ease the burden of COVID-19 transmission. A special analysis is made to relevant Malaysian laws. The discussion begins with an explanation of the status of COVID-19 in Malaysia and some prevention methods that have been taken by the government. It then focuses on the role of drones in controlling the disease transmission. It provides some legal analysis regarding the use of drones in the context of restraining the spread of COVID-19 in the country. Lastly, it ends with some legal implications, recommendations and improvements. The methodology used is by analysing the Malaysian Civil Aviation Regulations 2016 and references are made to relevant news. This paper accomplishes that the use of drones in dealing with the COVID-19 pandemic is a wise and judicious endeavour which can be further enhanced in Malaysia.

Stefoudi, Dimitria, 'Space Data in the Fight against Pandemics: Privacy Concerns and Sharing of Benefits from the Use of Space Technology for Decision-Making' (2020) 45(Special issue) Air and Space Law 108-121
Abstract: The fast and continuous collection and distribution of information are essential for decisionmaking in the first-response phase, as well as in the constant monitoring during and after the peaks of the Coronavirus Disease-2019 (COVID-19) outbreak. Particularly in times of emergency that require immediate reaction on behalf of local and global authorities, it is important that their reaction is based on reliable information. The unique features of satellite technology, which enable the steady flow of accurate near real-time data, have granted it a vital role in the fight against the COVID-19 pandemic. This article will address the uses of space data for public health and their legal implications, particularly in terms of privacy and access to data.

Tarr, J, A Tarr and K Paynter, 'Transport, Drones and Regulatory Challenges: Risk Accountability Meets COVID Fast Tracking of a Critical Industry' (2020) 48(2) Australian Business Law Review 202-211
Abstract: Drone use in commercial contexts has increased exponentially over the last several years. In the context of COVID-19 contagion and isolation restrictions, use and deployment technology has benefitted multiple users and operators as well as the wider community. While bringing new horizons in efficiency, the rapid upswing in use hastens the need for well thought out and properly integrated regulation. This article provides an overview of fast-tracked legislation in the form of the Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft - Registration and Accreditation) Regulations 2019 (Cth). Promulgated in July 2019, in response to recommendations from the 2018 Senate Inquiry into drone operations, the legislation responds in limited ways to drone registration and training requirements. The article outlines the current landscape, proposed changes and additional essential steps to achieve optimal outcomes both in terms of safety and cost for drone operators and the wider community.

Uppiah, Marie Valerie, 'The COVID-19 Pandemic: An Opportunity for African States to Review Their Shipping Industry Strategy' (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium I: International Trade & International Investment Law & Policy)
Abstract: This article aims at examining the significance of international commercial shipping for economic activities worldwide. It also purports to examine the current situation of this industry during the covid-19 pandemic. Furthermore, the article addresses the important role of commercial shipping for African landlocked and coastal States and the need for further developing this sector.

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