HOUSE OF LORDS SIDHU AND OTHERS,
APPELLANTS AND BRITISH AIRWAYS
PLC., RESPONDENTS ABNETT (KNOWN AS
SYKES), APPELLANT AND SAME, RESPONDENTS Annotated Law
Reports version at: [1997] A.C. 430 COUNSEL: Clive Nicholls Q.C. and Tim Kerr for the plaintiffs in the
English action. C. N. McEachran Q.C. and Peter Macdonald (both of the Scottish
Bar) for the pursuer in the Scottish action. Robert Webb Q.C. and Philip Shepherd for the respondents in the
English action. D. R. A. Emslie Q.C. and M. L. B. G. Gilmore (both of the Scottish
Bar), for the respondents in the Scottish action. SOLICITORS: Raja & Partners, Southall; Beaumont and Son;
Pattinson & Brewer for Drummond Miller W.S., Edinburgh for the Frank
Lefevre Practice, Aberdeen; Beaumont and Son for Shepherd & Wedderburn
W.S., Edinburgh. JUDGES: Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord
Mustill, Lord Steyn and Lord Hope of Craighead DATES: 1996 Oct. 14, 15, 16; Dec. 12 Appeal in an action relating to the hostage-taking in Kuwait by Iraqis of passengers aboard a British Airways flight. Held, dismissing the appeals, that the issue was the meaning of
the Convention as a whole, rather than the Act of 1961, and it had to be given
a purposive construction; that although the Convention was a partial
harmonisation of the rules relating to international carriage by air it was
comprehensive in respect of the issues covered; that under the Convention
carriers surrendered their freedom to limit or exclude liability in damages to
passengers in exchange for the conditions and limits on claims set by the
Convention; and that, accordingly, where the Convention had not provided a
remedy, no remedy was available either under the common law or otherwise. [*433] Their Lordships took time for consideration. 12 December. LORD BROWNE-WILKINSON. My Lords, for the reasons
given in the speech to be delivered by my noble and learned friend, Lord Hope
of Craighead, which I have read in draft and with which I agree, I
would dismiss both these appeals. LORD JAUNCEY OF TULLICHETTLE. My Lords, for the reasons given in
the speech to be delivered by my noble and learned friend, Lord Hope of
Craighead, which I have read in draft and with which I agree, I, too, would
dismiss both these appeals. LORD MUSTILL. My Lords, for the reasons given in the speech to be
delivered by my noble and learned friend, Lord Hope of Craighead, which I have
read in draft and with which I agree, I, too, would dismiss both these appeals. LORD STEYN. My Lords, for the reasons given in the speech to be
delivered by my noble and learned friend, Lord Hope of Craighead, which I have
read in draft and with which I agree, I would dismiss both these appeals. [*435] LORD HOPE OF CRAIGHEAD. My Lords, the question in these two
appeals is whether the Warsaw Convention as amended at The Hague, 1955, as set
out in the Schedule 1 to the Carriage by Air Act 1961, provides the exclusive
cause of action and sole remedy for a passenger who claims against the carrier
for loss, injury and damage sustained in the course of, or arising out of,
international carriage by air. In both cases claims were made against the respondents, British
Airways Plc., by passengers who had been travelling on a scheduled
international flight from the United Kingdom to Malaysia via Kuwait. The flight
left London Heathrow for Kuala Lumpur on 1 August 1990. It landed in Kuwait for
refuelling on 2 August 1990, about five hours after Iraqi forces had begun to
invade Kuwait at the commencement of what became known as the Gulf War. The
passengers and crew were all taken prisoner by the Iraqis. They were detained initially
at Kuwait Airport, then at Kuwait City and thereafter in Baghdad. The
appellants, who were subsequently released and returned to the United Kingdom,
claimed damages against the respondents for the consequences of their
captivity. Their claims for personal injury were made at common law, as it was
accepted that they had no remedy in this regard under article 17 of the
Convention. Mrs. Judith Helen Abnett, to whom I shall refer as the
pursuer, raised her action in the Court of Session in Scotland. She
was resident in England where the respondents principal place of
business is situated, and she had purchased her ticket there. But the
respondents also have a place of business in Edinburgh, which the pursuer
contended was sufficient to confer jurisdiction on the Scottish courts at
common law. She based her claim on article 19 of the Convention under which the
carrier is liable for damage occasioned by delay and, alternatively, at common
law for breach of an implied condition of the contract that the respondents
would take reasonable care for her safety. When the case came before the Lord
Ordinary, Lord Marnoch, for debate on the procedure roll he was invited to
dismiss the action on various grounds. One of these was that the Scottish courts
had no jurisdiction, having regard to article 28 of the Convention. After a
careful review of the wording of that article and of various authorities which
were cited to him from the United States of America, France and Nigeria, he
held that the Scottish courts did have jurisdiction and no appeal has been
taken against his decision on this point. He also held that the
pursuers case for damage occasioned by delay under article 19 of the
Convention was irrelevant and that the Convention excluded recourse to any
common law remedy by a passenger who suffered injury in the course of or
arising out of an international flight. On 20 December 1993 he repelled the
respondents plea in law to the jurisdiction of the Court of Session,
but he sustained their second and third pleas in law and dismissed the action
as irrelevant, 1996 S.L.T. 529. The pursuer reclaimed on the single question as
to whether her claim at common law had been excluded by the Convention. On 28
April 1995 an Extra Division (Lord Allanbridge, Lord Mayfield and Lord Clyde),
who had the advantage of the judgment of the Court of Appeal in the English
action which supported the view which had been taken by Lord Marnoch, [*436] refused her
reclaiming motion: 1996 S.L.T. 529, 538-547. The pursuer has now appealed
against this decision to your Lordships House. Miss Kiran Sidhu, Miss Harjinder Sidhu and Mr. Ravinder Sidhu, to
whom I shall refer as the plaintiffs, raised their action
in the Brentford County Court. In their particulars of claim they alleged that
the loss and damage which they had suffered was caused by the
respondents negligence. Their proceedings were issued on 30 July
1993, which was outside the two-year time limit allowed by article 29 of the
Convention but inside the three-year time limit which was otherwise applicable.
No claim was made by them under any of the provisions of the Convention. The
respondents applied for an order that their action be dismissed as it was
time-barred by article 29. When their application came before Judge Marcus
Edwards they also submitted that the Convention provided the exclusive remedy
in respect of claims for damages arising out of international carriage by air
of persons and baggage for reward. On 28 February 1994 the judge, who was
referred to Lord Marnochs decision in the pursuers case,
held for the same reasons as those given by Lord Marnoch that the plaintiffs
had no rights save under the Convention. He also held that their right to
damages, if any, was extinguished by article 29 of the Convention two years
after 2 August 1990, and he dismissed their claims. On 27 January 1995 the
Court of Appeal (Leggatt, Swinton Thomas and Otton L.JJ.) (unreported), Court
of Appeal (Civil Division) Transcript No. 107 of 1995, dismissed the
plaintiffs appeal against the order which had been made by Judge
Marcus Edwards. The plaintiffs appeal to this House against the order
made by the Court of Appeal was heard together with the pursuers
appeal against the interlocutor of the Extra Division of the Court of Session. The facts The pursuer and the plaintiffs were all fare paying passengers on
the same flight, BA149, which left London Heathrow for Kuala Lumpur at about
6.15 p.m. on 1 August 1990. The flight was scheduled to travel to Kuala Lumpur
by way of Kuwait and Madras. It was due to arrive at Kuwait in the early hours
of the following day, 2 August 1990. According to the pursuers
pleadings in the Scottish action, relations between Iraq and Kuwait had been
deteriorating for some days prior to the departure of the flight from Heathrow.
She avers that the respondents knew or ought to have known that the passengers
would be at severe risk if the aircraft were to land in Kuwait after
hostilities had been commenced against Kuwait by Iraq. The same point is made
by the plaintiffs in their particulars of claim, where they refer to the
respondents negligence in landing their aeroplane in Kuwait when they
knew or ought to have known of the hostile situation between Iraq and Kuwait
and the possibility that war might break out and Kuwait be invaded by Iraq. In
the event the invasion of Kuwait by Iraq began at about 11.15 p.m. on 1 August
1990. About four hours later, at about 3 a.m. on 2 August 1990, the respondents
aircraft landed at Kuwait airport for refuelling. The passengers disembarked
into the transit lounge at the airport terminal. While they were in the
terminal the airport was attacked by Iraqi aircraft and taken over by Iraqi
soldiers. The airport was closed, and the passengers and [*437] crew of flight BA149
were detained by the Iraqis and later removed to Baghdad. The pursuer avers that she was detained by Iraqi forces for a
period of about a month. She claims to have suffered psychological injury due
to the stress resulting from her captivity and the pain of separation from her
family. She also claims that she was off work on a number of occasions as a
result of the psychological consequences. She claims damages of
£100,000 on the ground that the respondents were in breach of an
implied condition of her contract with them that they would take reasonable
care for the safety of their passengers, in respect that they allowed their
aircraft to land at Kuwait when they knew or ought to have known that the
passengers were exposed to risk due to the invasion. Her alternative claim for
damages caused by delay under article 19 of the Convention was, as I have said,
held by Lord Marnoch to be irrelevant and no further issue arises on that
point. She made no claim against the respondents under article 17 of the
Convention. The plaintiffs state that they were detained by the Iraqi forces
until about 21 August 1990. In their particulars of injuries they allege that
they suffered physical and psychological injuries. These included mental injury
comprising stress and anxiety and possible permanent psychological damage as a
result, and bodily injury comprising loss of weight, eczema and excessive
menstrual bleeding. They also claim for loss of baggage amounting to
£2,562‡93 as special damages. Their action has been based entirely on
negligence at common law. The negligence relied on in their particulars falls
under three heads: landing their aircraft in Kuwait when the respondents knew
or ought to have known of the hostile situation between Kuwait and Iraq and the
possibility that war might break out and Kuwait be invaded; flying their
aircraft into a war zone or war situation; and failing to divert their aircraft
to a safer airport for refuelling when they knew or ought to have known that
Kuwait airport was at risk of being attacked or invaded. They make no claim
against the respondents under article 17 of the Convention. The issue Although there are some differences of detail between the two
actionsthe pursuer claims only for psychological injury, while the
plaintiffs claim also for bodily injury and loss of baggage, and the
pursuers claim is for breach of contract while the
plaintiffs claim is in negligencethe issue of law which
arises in both of these appeals is the same. It is whether the Warsaw
Convention as amended at The Hague, 1955 provides the exclusive cause of action
and remedy in respect of claims for loss, injury and damage sustained in the
course of, or arising out of, international carriage by air. If the answer to
that question is in the affirmative, it is accepted that the claims which have
been brought in each case for damages at common law for personal injury must be
dismissed. It is not disputed that the plaintiffs claim for loss of
baggage must be dismissed also, on the additional ground that it was brought
outwith the period of two years referred to in article 29 of the Convention
after which the right to damages under the Convention is extinguished. It is
common ground, for reasons to which I shall return later, that neither the
pursuer nor the [*438] plaintiffs have any claim against the respondents under article
17 of the Convention in respect of their personal injuries. The provisions of the Convention I shall have something to say later about the background to the
Convention. At this stage it is necessary to identify the statutory provisions
which are relevant to this case. These are to be found in the Carriage by Air
Act 1961, by which effect was given to the Convention concerning international
carriage by air known as The Warsaw Convention as Amended at The
Hague, 1955, so that it might have the force of law in the United
Kingdom in relation to any carriage by air to which the Convention applied, and
the rules contained in the Convention were enabled to be applied, with or
without modification, in other cases and in particular to non-international
carriage by air not governed by the Convention. Force of law to the Convention
in regard to international carriage by air is given by section 1(1) of the Act
read together with Schedule 1, in which the provisions of the Convention are
set out. Part I of the Schedule sets out the English text of the Convention,
and Part II sets out the French text. Section 1(2) provides that, if there is
an inconsistency between the text in English and Part I of Schedule 1 and the
text in French in Part II of that Schedule, the text in French shall prevail. The headnote to the English text in Part I of Schedule 1 describes
the Convention as being for the Unification of Certain Rules relating
to International Carriage by Air. There then follow five chapters,
headed respectively Chapter I, ScopeDefinitions;
Chapter II, Documents of Carriage; Chapter III,
Liability of the Carrier; Chapter IV, Provisions
Relating to Combined Carriage; and Chapter V, General and
Final Provisions. In Chapter I, article 1(1) is in these terms: (1) This Convention applies to all
international carriage of persons, baggage or cargo performed by aircraft for
reward. It applies equally to gratuitous carriage by aircraft performed by an
air transport undertaking. Article 1(2) of this chapter contains a definition of the
expression international carriage which need not be quoted,
as it is common ground that the present case is concerned with international
carriage by air because the place of departure and the place of destination were
both situated within the territories of high contracting parties. Among the documents of carriage for which rules are provided by
Chapter II is the passenger ticket. Article 3(1) of section 1 of this chapter
is in these terms: (1) In respect of the carriage of passengers a ticket
shall be delivered containing: (a) an indication of the places of departure and
destination; (b) if the places of departure and destination are within the
territory of a single high contracting party, one or more agreed stopping places
being within the territory of another state, an indication of at least one such
stopping place; (c) a notice to the effect that, if the passengers
journey involves an ultimate destination or stop in a country other than the
country of departure, the Warsaw [*439] Convention may be applicable and that the
Convention governs and in most cases limits the liability of carriers for death
or personal injury and in respect of loss of or damage to baggage. The only other chapter which contains provisions relevant to this
case is Chapter III, which is headed Liability of the
Carrier. The articles comprised in this chapter are those numbered
from 17 to 30, of which the following is a brief summary. Article 17 is
concerned with the carriers liability for death or injury suffered by
a passenger. Article 18 is concerned with the carriers liability for
destruction or loss of or damage to registered baggage or cargo. Article 19
provides: The carrier is liable for damage occasioned by delay in the
carriage by air of passengers, baggage or cargo. These provisions
must be read together with article 24, which provides that, in the cases
covered by these articles, any action for damages, however founded, can only be
brought subject to the conditions and limits set out in the Convention. Article
20 provides: The carrier is not liable if he
proves that he and his servants or agents have taken all necessary measures to
avoid the damage or that it was impossible for him or them to take such
measures. Article 21 deals with cases where the damage was caused or
contributed to by the injured persons negligence. Article 22 makes
provision for the limitation of the liability of the carrier for each passenger
and for registered baggage and cargo, and article 23 provides: Any provision tending to relieve the
carrier of liability or to fix a lower limit than that which is laid down in
this Convention shall be null and void . . . Article 25 provides that these limits of liability shall not apply
if the damage results from an act or omission of the carrier, his servants or
agents done with intent to cause damage or recklessly. Articles 25, 25A, 26 and
27 contain various ancillary provisions. Article 28, which deals with
jurisdiction, restricts the places where an action for damages may be brought,
and provides that questions of procedure shall be governed by the law
of the court seised of the case. Article 29 provides: The
right to damages shall be extinguished if the action is not brought within two
years. Lastly, article 30 deals with the case where the carriage is
to be performed by various successive carriers. As I shall require to examine the wording of articles 17, 18, 23
and 24 more closely at a later stage, it is convenient now to set out the full
terms of these articles. They are as follows: Article 17: The carrier is liable for damage
sustained in the event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger, if the accident which caused the damage
so sustained took place on board the aircraft or in the course of any of the
operations of embarking or disembarking. Article 18: (1) The carrier is liable for damage
sustained in the event of the destruction or loss of, or of damage to, any
registered baggage or any [*440] cargo, if the occurrence which caused the damage so
sustained took place during the carriage by air. (2) The carriage by air within
the meaning of the preceding paragraph comprises the period during which the
baggage or cargo is in charge of the carrier, whether in an aerodrome or on
board an aircraft, or, in the case of a landing outside an aerodrome, in any
place whatsoever. (3) The period of the carriage by air does not extend to any
carriage by land, by sea or by river performed outside an aerodrome. If,
however, such a carriage takes place in the performance of a contract for
carriage by air, for the purpose of loading, delivery or transshipment, any damage
is presumed, subject to proof to the contrary, to have been the result of an
event which took place during the carriage by air. Article 23: (1) Any provision tending to relieve
the carrier of liability or to fix a lower limit than that which is laid down
in this Convention shall be null and void, but the nullity of any such
provision does not involve the nullity of the whole contract, which shall
remain subject to the provisions of this Convention. (2) Paragraph (1) of this
article shall not apply to provisions governing loss or damage resulting from
the inherent defect, quality or vice of the cargo carried. Article 24: (1) In the cases covered by articles
18 and 19 any action for damages, however founded, can only be brought subject
to the conditions and limits set out in this Convention. (2) In the cases
covered by article 17 the provisions of the preceding paragraph also apply,
without prejudice to the questions as to who are the persons who have the right
to bring suit and what are their respective rights. The competing arguments The issue between the parties is confined to a single but
important point which depends for its answer on the interpretation of the
Convention. Much of the background is common ground. As both cases are being
dealt with on a preliminary issue of law, the facts have not been investigated.
The respondents made it clear that they were not to be taken as admitting that
all the allegations which have been made against them are true. But they were content
that the issue of law should be dealt with on the pursuers pleadings
in the Scottish action and on the particulars of claim in the English action.
For their part the pursuer and the plaintiffs accept that their claims against
the respondents arise out of international carriage by air. Their apprehension
by the Iraqis took place in the terminal at Kuwait, but they accept that they
were still in the course of international carriage by air at that point because
they were still in transit to their ultimate destination in Malaysia. The
breaches of duty which they allege all relate to decisions taken while the
aircraft was in the air between London and Kuwait. It is, however, also common
ground between the parties that neither the pursuer nor the plaintiffs have a
claim against the respondents under article 17 of the Convention. I do not think that it is necessary to explore the reasons why the
view has been taken that article 17 does not provide a remedy in this case. It
is [*441] sufficient to say that
two particular reasons were given for this view in the course of the hearing
before the Inner House in the Court of Session. First, it was said that no
accident causing the damage took place on board the
aircraft. Secondly, it was said that the injury sustained by the
pursuerthe stress resulting from her captivity and the pain of
separation from her family, absence from work and loss of income due to the
psychological consequences of the captivitydid not fall within the
scope of bodily injury for the purposes of article 17. In
the English action the plaintiffs conceded in the Court of Appeal that no
accident causing damage took place on board the aircraft or in the course of
disembarkation. In their case bodily injury is alleged, but it was submitted on
their behalf that liability for damage to the person under article 17 only
arises in the event of any bodily injury suffered by a passenger and that
psychological damage, which was the principal basis for their claim, probably
did not come within that category. It was suggested to your Lordships in the
course of the argument that the phrase bodily injury in
article 17 ought now to be construed as including psychological damage,
especially if it were shown to have a physiological basis by medical evidence.
But that point does not arise for decision in this case and it was not fully
argued. I prefer to express no opinion upon it. It should be recorded also that all parties were agreed that, if a
passenger had a claim under article 17 against the carrier, there was no
concurrent common law remedy. It is common ground therefore that a passenger
who has a claim for bodily injury caused by an accident which took place on
board the aircraft, or in the course of any of the operations of embarking or
disembarking, cannot maintain a separate claim at common law for any loss,
injury or damage not covered by article 17 of the Convention. That seems to
follow inevitably from the provisions of article 24(2), which declares that in
the cases covered by article 17 any action of damages, however founded, can
only be brought subject to the conditions and limits set by the Convention. So the stark issue which is before us in this appeal is whether a
passenger who has sustained damage in the course of international carriage by
air due to the fault of the carrier, but who has no claim against the carrier
under article 17 of the Convention, is left without a remedy. The approach to construction I now turn to the material which we were invited to consider in
reaching our decision as to how we should decide this issue. Some of this
material is plainly relevant, some of it plainly is not and some of it will
require consideration and analysis in order to decide whether it is of any assistance
to us in this case. The following catalogue provides the starting point. (i) The Carriage by Air Act 1961 Mr. Webb took us through various provisions in the statute which
he said could be relied on as indicating that the intention was that the Convention
should provide the exclusive remedy. Similar arguments were considered in the
courts below. For my part I do not think that the [*442] wording of the
statute can assist us one way or the other. What we are concerned with in this
case is the meaning to be given to the Convention. This must depend upon the
wording and structure of the Convention itself. All that need be taken from the
Act for present purposes is that, in terms of section 1(1), the Convention as
set out in Schedule 1 to the Act has the force of law in the United Kingdom in
relation to any carriage by air to which the Convention applies; and that, in
terms of section 1(2), if there is any inconsistency between the text in
English in Part I of Schedule 1 and the text in French in Part II of that
Schedule, the text in French shall prevail. (ii) The English text of the Convention This plainly is the primary source to which we must turn for a
solution to the point raised in this case. It may be convenient, however, to
record at this point that all parties were agreed, as they were in the courts
below, that the Convention should receive a purposive construction. This point
was fully explored in Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251,
where the question at issue arose under article 26(2) of the Convention. It
does not need to be elaborated upon in this case. It is now well established
that a purposive approach should be taken to the interpretation of
international conventions which have the force of law in this country. As Lord
Diplock said, at p. 279, one must give a purposive construction to the
Convention looked at as a whole. The observations of Greene L.J. in Grein v.
Imperial Airways Ltd. [1937] 1 K.B. 50, 74-76, to which I shall return later, are to
the same effect. (iii) The travaux préparatoires Here again the parties were in agreement. Reference was made in
the courts below to the negotiating history of the Convention, and in
particular to the minutes of the International Conference on Private
Aeronautical Law at Warsaw from 4 to 12 October 1929. We also were referred to
various passages from these minutes in the course of the argument. The question
whether it is legitimate to resort to material of this kind was discussed in Fothergill
v. Monarch Airlines Ltd., and it is unnecessary to go over this ground again. It
is sufficient to say that cautious use may be made of this material, the
availability to the public of which is not in doubt. But it will only be
helpful if, after proper analysis, it clearly points to a definite intention on
the part of the delegates as to how the point at issue should be resolved. (iv) Decisions by the courts in the United Kingdom The only cases to which we were referred as having any possible
bearing on the issue which we have to decide in this case were Grein v.
Imperial Airways Ltd. [1937] 1 K.B. 50 and Gatewhite Ltd. v. Iberia Lineas Aereas
de Espana S.A. [1990] 1 Q.B. 326. The issue which was raised in Grein v.
Imperial Airways Ltd. was a different one from that which arises here. It was whether
a passenger who met his death while travelling by aeroplane on a return ticket
between London and AntwerpBelgium not being a high contracting
partywas engaged on international carriage [*443] within the meaning of
the Convention. But Greene L.J., at pp. 74-76, made some observations about the
approach to be taken to the construction of the Convention which are helpful in
the present case. The Gatewhite case arose out of a contract for the carriage
of goods by air. The question was whether the owner of goods not named as the
consignor or consignee on the air waybill was entitled to sue the carrier for
damages to the goods while in transit. I shall return to this case later in
order to see what help it can give to us in the present case. (v) Decisions by foreign courts Much of the discussion in the Court of Session, both in the Outer
House before the Lord Ordinary, Lord Marnoch, and in the Extra Division, was
taken up with an examination of decisions of various courts in the United
States. We were referred to the cases mentioned in the courts below and to
several other cases from the same source. We were also referred to a recent
decision in the Tribunal de Grande Instance de Paris arising out of the same
incident as the claims which are being made in the present case. The parties
were agreed that we might have regard to this material for such assistance as
it might give. Clearly, much must depend upon the status of each court and of
the extent to which the point of issue has been subjected to careful analysis.
Material of this kind, where it is found to be of the appropriate standing and
quality, may be of some help in pointing towards an interpretation of the
Convention which has received general acceptance in other countries. But the
value of the material will be reduced if the decisions conflict with each other
or if no clear line of approach appears from them after they have been
analysed. (vi) European Convention of Human Rights Mr. Clive Nicholls for the plaintiffs submitted that it would be
inconsistent with the obligations of the United Kingdom under various articles
of the European Convention of Human Rights if a construction were to be placed
on article 17 of the Warsaw Convention which excluded the claim which they were
seeking to make in this case. Your Lordships had no hesitation in rejecting
that argument. The provisions of the European Convention have no bearing on the
interpretation of international conventions such as the Warsaw Convention on
carriage by airand there are many other exampleswhich are
concerned with commerce between countries and which seek, by a process of
compromise, to achieve uniformity across international frontiers in the
application of trade law. It must also be observed that, while some parties to the Warsaw
Convention are parties to the European Convention of Human Rights, some notably
the United States of Americaare not. We cannot assume that the
principles expressed in the European Convention are common to all those
countries who are parties to the Warsaw Convention. Thus we would risk
introducing an element of distortion into the debate, in conflict with the
broad aim of uniformity of interpretation between states, if we were to rely on
the European Convention as an aid to the construction of the Warsaw Convention
in the present case. In T. v. Secretary of State for [*444] the Home
Department [1996] A.C. 742, 779A, Lord Lloyd of Berwick said that in a case
concerning an international convention it was obviously desirable that
decisions in different jurisdictions should, so far as possible, be kept in
line with each other. As the editors of Dicey & Morris, The Conflict of
Laws, 12th ed. (1993), vol. 1, p. 9, observe: The purpose of an international
convention is to harmonise the laws of all contracting states on the particular
topic dealt with by the Convention. It is therefore very important that the
interpretation of the Convention should be the same, so far as possible, in all
contracting states. (vii) Analysis of this material It follows from what I have just said that no analysis is required
of the Act of 1961 or of the European Convention of Human Rights. I turn
therefore immediately to the Convention itself, which is the primary source to
which we must look for a solution to the question we have to decide. (a) The English text of the Convention I can confine myself to the English text, because all parties were
agreed that, except in one respect with which I can deal briefly, there was for
present purposes no material difference between it and the French text. The Convention describes itself as a Convention for the
Unification of Certain Rules relating to International Carriage by
Air. The phrase Unification of Certain Rules tells
us two things. The first, the aim of the Convention is to unify the rules to
which it applies. If this aim is to be achieved, exceptions to these rules
should not be permitted, except where the Convention itself provides for them.
Second, the Convention is concerned with certain rules only, not with all the
rules relating to international carriage by air. It does not purport to provide
a code which is comprehensive of all the issues that may arise. It is a partial
harmonisation, directed to the particular issues with which it deals. These issues are identified in the principal chapter headings,
which are those to Chapters II, III and IV, Documents of
Carriage, Liability of the Carrier and
Provisions Relating to Combined Carriage. Nothing is said
in this Convention about the liability of passengers to the carrier, for
example. Nor is anything said about the carriers obligations of
insurance, and in particular about compulsory insurance against third party
risks. It is clear from the content and structure of the Convention that it is
a partial harmonisation only of the rules relating to international carriage by
air. That is sufficient to give content to the phrase Certain
Rules. I do not find in that phrase an indication that, in regard to
the issues with which the Convention does purport to deal, its provisions were
intended to be other than comprehensive. The principal search for indications of an intention one way or
the other about exclusivity of provision in regard to the carriers
liability must be conducted within the provisions of Chapter III. But before I
come to this chapter there are two provisions in the earlier chapters which are
worth noting as being of some value. First, article 1(1) states that the [*445] Convention applies to
all international carriage of persons, baggage or cargo performed by
aircraft for reward. The word all is important,
simply because it is so all embracing. It indicates that the framers of the
Convention were looking to solutions, no doubt by a process of adjustment and
compromise, which could be regarded as acceptable for universal application in
all cases. The other provision is article 3(1)(c), which requires that the
ticket to be delivered to the passenger must contain among other things a notice to the effect that, if the passengers
journey involves an ultimate destination or stop in a country other than the
country of departure, the Warsaw Convention may be applicable and that the
Convention governs and in most cases limits the liability of carriers for death
or personal injury and in respect of loss of or damage to baggage. This provision was relied on to some extent by Lord Clyde, 1996
S.L.T. 529, 545J. He said that the words used here would seem quite
absolutethe qualification that the limits apply in most
cases presumably covering such exceptions as are contained in article
25, which deals with cases where the carrier, his servants or agents have
caused intentional damage or acted recklessly. It is here that the French text
may be important. The relevant part of the provision is stated there in these
terms: (c) . . . leur transport peut tre régi
par la Convention de Varsovie qui, en général, limite la
responsabilité du transporteur en cas de mort ou de
lésion corporelle, ainsi quen cas de perte ou
davarie des bagages. The word governs which is to be found in the
English text is an accurate translation of the word
régi in the French text. But the English version
does not follow the French wording preciselythe phrase peut
être régi is not, as such, reproduced. So on
balance I am inclined not to attach significance to this provision, which in
any event is dealing only with the wording of a notice on the
passengers ticket and not with the substance of the rules about the
carriers liability. Turning to Chapter III itself, the chapter heading expresses its
subject matter in the words Liability of the Carrier. In
contrast to the title to the Convention itself, which uses the expression
Certain Rules, we find here a phrase which is unqualified.
My understanding of the purpose of this chapter therefore, from what we have
seen so far, is that it is designed to set out all the rules relating to the
liability of the carrier which are to be applicable to all international
carriage of persons, baggage or cargo by air to which the Convention applies. Chapter III begins by setting out the three primary rules. These
are the rules relating to the carriage of passengers, to the carriage of
registered baggage or cargo and to delay in the carriage by air of passengers,
baggage or cargo. While article 19 is unqualifiedit states simply
that the carrier is liable for damage occasioned by delay in the carriage by
airthe other two articles are qualified, because the liability which
they create applies only in the events described and only if certain other
conditions are satisfied: see articles 20 and 21. This, however, is not in
itself a reason [*446] for regarding these provisions as non-exclusive remedies. One has
to look further into the details of the chapter in order to grasp the whole
context in which these carefully defined liabilities have been devised. Articles 20 and 21 enable the carrier to avoid liability in whole
or in part. They contain nothing of significance for present purposes. Article
22 however is important, because it limits the liability of the carrier. It
does so in terms which enable the limitation of liability to be applied
generally to all cases where the carrier is liable in the carriage of persons
and of registered baggage and cargo. Article 22(1) begins simply with the words
In the carriage of persons. Article 22(2)(a) begins with
the words In the carriage of registered baggage and of
cargo. The intention which emerges from these words is that, unless
he agrees otherwise by special contractfor which provision is made
elsewhere in the articlethe carrier can be assured that his liability
to each passenger and for each package will not exceed the sums stated in the
article. This has obvious implications for insurance by the carrier and for the
cost of his undertaking as a whole. Article 22(4) makes provision for the
award, in addition, of the whole or part of the costs of the litigation. But
this is subject to the ability of the carrier to limit his liability for costs
by an offer in writing to the plaintiff. The effect of these rules would, I
think, be severely distorted if they could not be applied generally to all
cases in which a claim is made against the carrier. Articles 23 and 24 also are provisions which seem to have been
designed to apply generally, and to indicate that the possibility of exceptions
to the rules laid down in Chapter III was not being contemplated. Article 23
states that any provision tending to relieve the carrier of liability or to fix
a lower limit than that which is laid down in the Convention shall be null and
void. It then goes on to state that the nullity of any such provision does not
involve the nullity of the whole contract, which is to remain subject to the
provisions of the Convention. The generality of effect is to be found in the
opening words, since the article applies to any provision
which tends to relieve the carrier of liability or to fix a lower limit than
that laid down by the Convention. I think that the purpose of this provision is
clear. It is to protect the passenger or other person dealing with the carrier
against provisions of the kind which it describes. Contracting out of liability
in contracts of carriage is, of course, now widely regulated by statute. But no
doubt in the early 1920s, when what became the Warsaw Convention was being
negotiated, carriers engaged in international carriage by air were free to
contract on whatever terms they cared to select, controlled only by the demands
of the market place in which they were operating. To surrender freedom of
contract on this issue was an important concession on the part of carriers,
which made sense only in the context of the entire set of rules by which their
conduct was to be regulated. The counterpart of what was plainly a compromise is to be found in
the following article, article 24. This article provides that in the cases
covered by articles 18 and 19 and by article 17 respectivelythese
cases are dealt with separately in two different
paragraphsany action of damages, however founded, can only
be brought subject to the conditions and limits set by the
Convention. It should be noted in passing that [*447] paragraph (2) of the article states
that this rule is to apply to the cases covered by article 17 without
prejudice to the questions as to who are the persons who have the right to
bring suit and what are their respective rights. As Professor Rene H.
Mankiewicz has pointed out in his article, The Judicial
Diversification of Uniform Private Law ConventionsThe Warsaw
Conventions Days in Court (1972) 21 I.C.L.Q. 718, 741 no
one could expect states to be prepared to amend their laws relating to these
questions, which are basic to the laws of tort and contract and therefore of a
wide reaching significance, for the sole purpose of unifying and accommodating
all matters relating to the law of the air carriers liability. The structure of these two provisions seems to me therefore to be
this. On the one hand the carrier surrenders his freedom to exclude or to limit
his liability. On the other hand the passenger or other party to the contract
is restricted in the claims which he can bring in an action of damages by the
conditions and limits set out in the Convention. The idea that an action of
damages may be brought by a passenger against the carrier outside the
Convention in the cases covered by article 17which is the issue in
the present caseseems to be entirely contrary to the system which
these two articles were designed to create. The reference in the opening words of article 24(2) to
the cases covered by articles 17 does, of course, invite
the question whether article 17 was intended to cover only those cases for
which the carrier is liable in damages under that article. The answer to that
question may indeed be said to lie at the heart of this case. In my opinion the
answer to it is to be found not by an exact analysis of the particular words
used but by a consideration of the whole purpose of the article. In its context
the purpose seems to me to be to prescribe the circumstancesthat is
to say, the only circumstancesin which a carrier will be liable in
damages to the passenger for claims arising out of his international carriage
by air. The phrase the cases covered by article 17
extends therefore to all claims made by the passenger against the carrier
arising out of international carriage by air, other than claims for damage to
his registered baggage which must be dealt with under article 18 and claims for
delay which must be dealt with under article 19. The words however
founded which appear in article 24(1) and are applied to
passengers claims by article 24(2) support this approach. The
intention seems to be to provide a secure regime, within which the restriction
on the carriers freedom of contract is to operate. Benefits are given
to the passenger in return, but only in clearly defined circumstances to which
the limits of liability set out by the Convention are to apply. To permit
exceptions, whereby a passenger could sue outwith the Convention for losses
sustained in the course of international carriage by air, would distort the
whole system, even in cases for which the Convention did not create any
liability on the part of the carrier. Thus the purpose is to ensure that, in
all questions relating to the carriers liability, it is the
provisions of the Convention which apply and that the passenger does not have
access to any other remedies, whether under the common law or otherwise, which
may be available within the particular country where he chooses to raise his
action. The carrier does not need to make provision for the risk of being
subjected to such remedies, because the whole matter is regulated by the
Convention. [*448] Only two other articles may be mentioned in this analysis:
articles 28 and 29. These restrict the places in which an action for
damages must be brought, and provide that the right to
damages shall be extinguished if an action is not brought within two
years. Here again it seems that a balance has been struck in the interests of
uniformity of treatment and of certainty. I see no sign in the generality with
which these provisions have been expressed of a recognition that there may be
some actions of damages arising from the international carriage of passengers
by air which are not subject to these rules. It would be largely destructive of
the system which this chapter seems to have been designed to lay down if a
passenger were to be able, for example, to maintain a claim of damages for
non-bodily injury, for loss of or damage to the personal possessions which he
had with him inside the aircraft or for economic loss, outside the conditions
and limits set by the Convention while maintaining a claim under the Convention
for the bodily injury. No doubt it was for this reason that it was conceded
that, if he had a claim under article 17, the passenger would not be able to
maintain any other claim against the carrier arising out of the same incident.
But it seems to me that, by parity of reasoning, the same approach must be
taken to cases arising out of international carriage by air where he has no
claim under article 17 at all. (b) The travaux préparatoires We were shown a copy, in the English translation, of the Minutes
of the Second International Conference on Private Aeronautical Law, 4 to 12
October 1929 at Warsaw. Attached to these minutes are copies of the documents
submitted to the conference. These comprise (a) a preliminary draft of the
Convention prepared by the International Technical Committee of Legal
Aeronautical Experts (C.I.T.E.J.A.), together with a report on the preliminary
draft by Mr. Henri De Vos in name of the committee and (b) proposals of
amendments submitted to the Warsaw Conference by a preparatory committee and by
various delegations to the conference. The first conference had been held in
Paris in 1925, so the material which was before the conference in Warsaw in
1929 was the product of four years work by the committee. I do not think that it would be profitable for me to attempt to
summarise this material. There are various passages in the minutes where the
delegates are recorded as expressing views about the object of the Convention.
For example, Sir Alfred Dennis, on behalf of Great Britain, said, at p. 85,
that the object of the Convention was to ensure uniformity of law, and, at p.
213, he said that what became article 24(1) touched the very substance of the
Convention because it excluded resort to the common law. Similar observations
are attributed to the Soviet delegate, Mr. Sabanin, at p. 40 and to the French
delegate, Mr. Ripert, at p. 47. At p. 49, Mr. De Vos referred to various questions
relating to the carriers liability as being connected to each other,
as they constituted the parts of a whole which is the system of
liability. But these are mere straws in the wind which emerged during
several days of detailed discussion to which many delegates contributed. I do
not find a sufficiently clear and consistent expression of views here about the
objects of the Convention on the point which is at issue in this case to enable
me to say that the [*449] answer to the problem is to be found in the minutes. The most
that can be said is that I have not found anything in these minutes or in the
accompanying material which contradicts the impression which I have already
formed on reading the Convention. There is one particular point arising from the minutes however on
which I think I should comment. It relates to the phrase Certain
Rules in the title to the Convention. The title in the preliminary
draft did not contain this phrase. In their proposals, however, the delegates
from Czechoslovakia had proposed an amendment to Chapter IV of the draft to the
effect that there should be inserted in it an article which would have provided
that, in the absence of a stipulation in the Convention, the provisions of laws
and national rules relating to carriage in each state should be applicable. The
effect of that amendment, if introduced, would have been to enable the common
law to apply when liability could not be established under the Convention.
There was a brief discussion of this amendment during the sixth session of the
conference on 9 October: see p. 176 of the minutes. When the proposal was drawn
to the attention of the delegates the head of the Italian delegation, Mr.
Giannini, said that, following a suggestion made by the German delegation, they
were going to propose adopting as a title for the Convention the words
Convention relating to certain rules for the unification of private
aeronautical law. He added that, given that this title indicated the
special character of the Convention, the Czechoslovak delegation no longer
insisted on its amendment. The Czechoslovak proposal was then withdrawn without
further discussion. A proposal by the Yugoslav delegation that the Berne
Convention should be applied for cases not provided for by the Convention was
also withdrawn. Mr. Nicholls suggested that the meaning to be given to the words
Certain Rules in the title should reflect the text of the
withdrawn Czechoslovakian amendment. In my opinion, however, the circumstances
in which the Czechoslovak delegation agreed to withdraw their proposal are not
sufficiently explored in the minutes to enable us to take that meaning from
these words. Nor indeed is it sufficiently clear what the scope was of the
amendment which that delegation had originally proposed. In an earlier
discussion, noted at p. 85 of the minutes, both the British and the Soviet
delegates had expressed concern at the insertion of a clause which would have
opened gaps in the Convention, as its object was to ensure uniformity. It may
be that all the Czechoslovak delegates were seeking to do was to insert a
clause in order to clarify the position in regard to chapters of law relating
to international carriage by air with which the Convention was not attempting
to deal. Their agreement to the substitution of the words Certain
Rules in the title can easily be explained if that was the only
purpose which their amendment was intended to serve. (c) Decisions by the courts in the United Kingdom As I said earlier, the only United Kingdom cases to which we were
referred were Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50,
74-76, in which Greene L.J. made certain observations about the approach to
construction of the Convention and Gatewhite Ltd. v. Iberia Lineas Aereas [*450] de Espana S.A. [1990] 1 Q.B. 326, in
which Gatehouse J. held that, in the absence of express provision in the
Convention excluding the owners right of action, the owner of goods
damaged or lost by a carrier was entitled to sue in his own name in accordance
with the lex fori and accordingly that the plaintiffs were entitled to damages
to be assessed at common law. In Grein v. Imperial Airways Ltd., Greene L.J. made
observations, at pp. 74-76, about the general objects of the Convention, the
desirability of an international code for air carriage, and the need to
approach the Convention with a proper appreciation that it was one of the main
objects of the Convention to secure the removal of various difficulties which
might otherwise have arisen by means of a uniform international code. These
observations are helpful as they support the approach which I have taken in my
reading of the Convention. But there is nothing in the facts of the case or the
particular decision arrived at which is relevant to the issue in this case. In Gatewhite Ltd. v. Iberia Lineas Aereas de Espana S.A. the defendants had
argued that, as that was a case of international carriage of cargo by air, it
was governed by the Convention and that the plaintiffs had no claim under it as
only the consignor or the consignee had a right of action against the carrier.
The judge rejected this argument. He said, at p. 331F, that it was remarkable
that nowhere did the Convention expressly exclude the right of the owner of
goods to sue the carrier for damage to or loss of the goods and that the
limitation of this right to consignor or consignee alone arose, if at all, by
implication. Having examined various decisions from other jurisdictions which
were directed to this issue he was attracted by the reasoning in Tasman Pulp
& Paper Co. Ltd. v. Brambles J.B. OLoghlen Ltd. [1981] 2 N.Z.L.R.
225. It seemed to him that, as the Convention did not expressly deal with the
position by excluding the owners right of action, although it could
so easily have done so, the lex fori could fill the gap: see p. 334G. Lord Marnoch in the Outer House of the Court of Session, 1996
S.L.T. 529, 537B was able to distinguish the Gatewhite case on the ground that
it was dealing with a quite separate aspect of the Convention. Lord Clyde in
the Inner House, at p. 546E, said that the area of title to sue was one in
which the Convention was not necessarily exhaustive. This decision, however,
does not sit easily with the idea that the object of the Convention, in the
areas with which it deals, was to provide uniformity of application
internationally. As Shawcross & Beaumont, Air Law, 4th ed. (looseleaf
reissue), vol. 1, VII(188) have observed, the rule in civil law countries is
that only a party to a contract of carriage, or a principal for whom he was
acting, is regarded as the appropriate plaintiff. In common law countries the
proper plaintiff is the owner of the goods, whose right to sue depends on his
interest in the goods, not on the fact that he may also be a party to the
contract. It would seem to be more consistent with the purpose of the
Convention to regard it as providing a uniform rule about who can sue for goods
which are lost or damaged during carriage by air, with the result that the
owner who is not a party to the contract has no right to sue in his own name. We were not asked to review the Gatewhite case in detail however,
and as the point was not fully argued I would not wish to cast further doubt [*451] on the decision which
Gatehouse J. reached. It is sufficient for present purposes to say that I am
not persuaded that we should apply his reasoning to the question which is
before us here, which is not concerned with the question of standing or title
to sue but with the question whether a person who has an undoubted title to sue
under the Convention can pursue a claim outside the Convention where the
Convention itself does not provide him with a remedy. (d) Decisions by the foreign courts Much of the discussion in both the Outer House and the Inner House
in the Court of Session was taken up with a detailed examination of various
cases on this topic from the United States of America. All the judges in that
court were of the view however that, in the end, no clear guidance was available
from this source to enable them to rely on this material in reaching their
decision in the present case. Lord Marnoch observed, 1996 S.L.T. 529, 536C-D,
that the Supreme Court had on two occasions in recent times found it either
unnecessary or inappropriate to consider the question whether the Convention
provided an exclusive course of action for injuries sustained during
international air transportation: Air France v. Saks (1985) 470 U.S. 392;
and Eastern Airlines Inc. v. Floyd (1991) 499 U.S. 530. The result of his review
was that there was no clear or very consistent line of reasoning in these cases
to guide him in this area of international air law. Lord Mayfield, 1996 S.L.T.
529, 544C, said that it was impossible to draw any clear conclusion as to the
state of U.S. law, and Lord Clyde expressed the same view, at p. 547J, having
observed earlier that it was pointless and perhaps impertinent to subject all
these cases to critical analysis. Lord Allanbridge was able to find support in
some of the cases for the view which he had already reached on his examination
of the Convention. But in the end he agreed, at p. 542L with the observations
of Leggatt L.J. in Sidhu v. British Airways Plc. in the Court of
Appeal that, in view of the conflicting nature of these authorities and the
fact that the Supreme Court had twice refrained from addressing the present
problem, it was necessary to reach a conclusion in this case without any
definite aid from the United States. As Leggatt L.J. said in his judgment, it
appears that the point is not settled in the United States as between circuits
and even in some instances within the same circuit. From his consideration of
the cases cited to him he was not prepared to say where the preponderance of
current opinion lies in the United States. I do not think that I can usefully add much to these observations.
One could, of course, attempt to prepare an analysis of the various cases which
were cited to us in order to show why Metz v. K.L.M. Royal Dutch Airlines (1979) 15 Avi.
17,843; Abramson v. Japan Airlines Co. Ltd. (1984) 739 F.2d 130; Fischer v.
Northwest Airlines (1985) 623 F.Supp. 1064 and Walker v. Eastern Air Lines Inc. (1991) 23 Avi.
17,904, which favour the position of the pursuer and the plaintiffs in this
case, should be rejected in the light of the contrary view expressed in Finkelstein
v. Trans World Airlines Inc. (1978) 15 Avi. 17,379 and Saloom (George) v. British
Airways Plc. (unreported), 22 February 1993, United States District Court,
Southern District of California, Western Region. The Saloom case is of
particular interest, as the claims which the court held were governed [*452] exclusively by the
Convention and could not be made out on the facts arose out of the same
incident as that with which we are concerned in this case. There are dicta in
some other cases, notably Boehringer-Mannheim Diagnostics Inc. v. Pan
American World Airways Inc. (1984) 737 F.2d 456, which support the general view that
the Convention provides the sole cause of action where a passenger seeks to
establish a claim against an air carrier and is the exclusive remedy. But, as
Lord Clyde pointed out, 1996 S.L.T. 529, 547C these general observations are of
little value unless they are based on a clear and precise understanding of what
matters are governed by the Convention. I am not confident, with great respect
to the many American judges who have participated in this debate, that that has
always been the case. I believe that it would be unwise to attempt to reconcile
all these dicta, or to try to subject each of the various decisions to analysis
in order to extract from them a view which one could be confident would be
regarded as authoritative. In any event, as Mr. Webb pointed out, the United States is only
one jurisdiction among many. Although the volume of litigation in that country
on aviation matters is substantial and the jurisprudence which has been
developed is an important source of information on aviation law generally,
views formed there cannot be assumed to be the same as those formed in other
jurisdictions which are party to the Convention. Some of the cases in the
United States may also be influenced by the question whether the claim for
damages was properly to be litigated in the State courts rather than the
Federal courts. Lord Diplock in Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251,
284C drew attention to the factors on which the persuasive value of the
decisions of a foreign court must depend. These include the reputation and
status of the court, and the extent to which the decision is binding upon
courts of co-ordinate and inferior jurisdiction in that country. As matters
have developed it will ultimately be for the Supreme Court of the United States
of America to offer guidance to the American judges on this issue, and at this
stage I do not think that we should attempt to enter into the difficult debate
as to how the balance of view is likely to be resolved when the matter is dealt
with by that court. As for the French case to which we were referred, I think that it
also must be regarded as being of no persuasive value in the present case. In Ismail
A. Mohamed v. British Airways Plc. (unreported), 8 November 1995, 65 passengers
and their close relatives, who were all French nationals, claimed damages from
British Airways for the consequences of the same events as those which have
given rise to the claims which are before us in these appeals. The Tribunal de
Grande Instance de Paris reached the view on the facts that the damages claimed
were not linked with disembarkation operations as such, and that they could not
be linked to those risks inherent in aerial navigation as provided by the
Warsaw Convention. In these circumstances the court felt free to determine the
law applicable, on the view that the consequential damages claimed were not
covered by the field of application of the Convention. French law was applied,
and the plaintiffs were found entitled to damages unrestricted by the limits
set by article 22 of the Convention. [*453] That, however, was a decision at first instance, and we were told
that it is now under appeal. The copy of the judgment with which we have been
provided, in an English translation, does not contain a close analysis of the
Convention, nor is there any reference to previous decisions on the issue in
the French courts or elsewhere. The reasons given do not disclose a detailed
examination of the issues raised by the defence. It is reasonably clear however
that the case proceeded upon a different view from that which has been taken in
the present case, where it is conceded that the claims can properly be regarded
as arising out of international carriage of passengers by air. Conclusion I believe that the answer to the question raised in the present
case is to be found in the objects and structure of the Convention. The
language used and the subject matter with which it deals demonstrate that what
was sought to be achieved was a uniform international code, which could be
applied by the courts of all the high contracting parties without reference to
the rules of their own domestic law. The Convention does not purport to deal
with all matters relating to contracts of international carriage by air. But in
those areas with which it dealsand the liability of the carrier is
one of themthe code is intended to be uniform and to be exclusive
also of any resort to the rules of domestic law. An answer to the question which leaves claimants without a remedy
is not at first sight attractive. It is tempting to give way to the argument
that where there is a wrong there must be a remedy. That indeed is the
foundation upon which much of our own common law has been built up. The broad
principles which provide the foundation for the law of delict in Scotland and
of torts in the English common law have been developed upon these lines. No
system of law can attempt to compensate persons for all losses in whatever
circumstances. But the assumption is that, where a breach of duty has caused
loss, a remedy in damages ought to be available. Alongside these principles, however, there lies another great
principle, which is that of freedom of contract. Any person is free, unless
restrained by statute, to enter into a contract with another on the basis that
his liability in damages is excluded or limited if he is in breach of contract.
Exclusion and limitation clauses are a common feature of commercial contracts,
and contracts of carriage are no exception. It is against that background,
rather than a desire to provide remedies to enable all losses to be compensated,
that the Convention must be judged. It was not designed to provide remedies
against the carrier to enable all losses to be compensated. It was designed
instead to define those situations in which compensation was to be available.
So it set out the limits of liability and the conditions under which claims to
establish that liability, if disputed, were to be made. A balance was struck,
in the interests of certainty and uniformity. All the obvious cases in which the carrier ought to accept
liability were provided for. But, as one of the French delegates to the Warsaw
Convention, Mr. Ripert, observed (Minutes p. 73) when the definition of the
period of carriage was being discussed, there are an infinite variety of cases
not all of which can be put in the same formula. No doubt the [*454] domestic courts will
try, as carefully as they may, to apply the wording of article 17 to the facts
to enable the passenger to obtain a remedy under the Convention. But it is
conceded in this case that no such remedy is available. The conclusion must be
therefore that any remedy is excluded by the Convention, as the set of uniform
rules does not provide for it. The domestic courts are not free to provide a
remedy according to their own law, because to do this would be to undermine the
Convention. It would lead to the setting alongside the Convention of an
entirely different set of rules which would distort the operation of the whole
scheme. The Convention is, of course, tightly drawn on these matters. This
has been done in the interests of the carrier, whose exposure to these
liabilities without the freedom to contract out of them was a principal
consequence of the system which it laid down. Were remedies outside the
Convention to become available, it would encourage litigation in other cases to
restrict its application still further in the hope of obtaining a better
remedy, against which the carrier would have no protection under the contract.
I am in no doubt that the Convention was designed to eliminate these
difficulties. I see no escape from the conclusion that, where the Convention
has not provided a remedy, no remedy is available. For these reasons I would dismiss both appeals. Appeals dismissed with costs. Order for costs in English appeal not to be enforced without leave
of High Court. |