![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dawson v Thomson Airways Ltd [2014] EWCA Civ 845 (19 June 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/845.html Cite as: [2014] 2 Lloyd's Rep 399, [2014] 1 CLC 1018, [2014] EWCA Civ 845, [2015] 1 All ER (Comm) 193, [2014] 2 Lloyd’s Rep 399, [2014] 4 All ER 832, [2014] WLR(D) 279, [2015] WLR 883, [2015] 1 WLR 883, [2014] 3 CMLR 35 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2014] WLR(D) 279]
[Buy ICLR report: [2015] 1 WLR 883]
[Help]
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
His Honour Judge Yelton
20Z57244
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE KITCHIN
and
LORD JUSTICE FULFORD
____________________
JAMES ![]() ![]() |
Claimant/ Respondent |
|
- and - |
||
![]() ![]() |
Defendant/ Appellant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Akhil Shah Q.C. (instructed by Bott & Co) for the Respondent
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
The Montreal Convention
Article 19—Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. . . .
Article 22—Limits of liability in Relation to Delay, Baggage and Cargo
1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,694 Special Drawing Rights [about £4,000]. . . .
Article 29—Basis of Claims
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention . . .
Article 35—Limitation of Actions
1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
Sidhuv
British
Airways
"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 passenger's claims by article 24(2) support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carrier's 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 carrier's 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."
" . . . 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. . . ."
Regulation 261
(i) Article 4: that, if a passenger is denied boarding against his will, the airline must pay compensation in a prescribed amount in accordance with article 7 and offer assistance in the form of reimbursement or re-routing in accordance with article 8, as well as meals and refreshment, transport and hotel accommodation and two free telephone calls in accordance with article 9;
(ii) Article 5: that, if a flight is cancelled, the airline must offer passengers prescribed compensation, reimbursement or re-routing and assistance in accordance with articles 7, 8 and 9;
(iii) Article 6: that, if an airline reasonably expects a flight to be delayed beyond its schedules time of departure by two hours or more (depending on the distance of the flight involved), it must offer passengers assistance in accordance with article 9 and in extreme cases reimbursement in accordance with article 8.
(iv) Article 7: that, where this article applies, passengers should receive a payment in compensation determined by reference to the length of the journey.
"(2) Articles 5, 6 and 7 of Regulation 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in art 7 of the Regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier . . . ." (Emphasis added).
The issues
The judgment below
The parties' submissions
"59. To summarise, this case is not about the interpretation or application of a European Regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises and there is no basis for supposing that the Montreal Convention should be given a different "European" meaning from its meaning as an international convention. On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law."
Lord Justice Kitchin :
Lord Justice Fulford :