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Cite as: [1980] UKHL 6, [1981] AC 251, [1980] 3 WLR 209

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Parliamentary Archives,
    HL/PO/JU/18/240

    Die Jovis 10° Julii 1980

    Upon Report from the Appellate Committee to whom
    was referred the Cause Fothergill against Monarch
    Airlines Limited, That the Committee had heard
    Counsel as well on Tuesday the 20th as on Wednesday
    the 21st and Thursday the 22nd days of May last upon
    the Petition and Appeal of Monarch Airlines Limited
    of Haven House, 48 Haven Green, Haling, London,
    W5 2NX praying that the matter of the Order set forth
    in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal of the 31st day of July 1979
    might be reviewed before Her Majesty the Queen in
    Her Court of Parliament and that the said Order might
    be reversed, varied or altered or that the Petitioners
    might have such other relief in the premises as to Her
    Majesty the Queen in Her Court of Parliament might
    seem meet; as also upon the Case of John Wesley
    Fothergill lodged in answer to the said Appeal; and due
    consideration had this day of what was offered on either
    side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual
    and Temporal in the Court of Parliament of Her Majesty
    the Queen assembled, That the said Order of Her
    Majesty's Court of Appeal of the 31st day of July 1979
    complained of in the said Appeal be, and the same is
    hereby, Reversed and that it be Declared that, under
    Article 26 of the Warsaw Convention of 1929, as
    amended by the Hague Protocol of 1955, a complaint
    in respect of the partial loss of the contents of the
    Respondent's suitcase should have been made within
    seven days of the date of receipt of the baggage and that
    no sufficient complaint was made: And it is further
    Ordered, That the Respondent do pay or cause to be
    paid to the said Appellants the Costs incurred by them
    in the Courts below and also the Costs incurred by
    them in respect of the said Appeal to this House, the
    amount of such last-mentioned Costs to be certified by
    the Clerk of the Parliaments if not agreed between the
    parties: And it is also further Ordered, That the Cause
    be, and the same is hereby remitted back to the
    Queen's Bench Division of the High Court of Justice to
    do therein as shall be just and consistent with this
    Judgment.



    HOUSE OF LORDS

    FOTHERGILL (RESPONDENT)

    v.
    MONARCH AIRLINES LIMITED (APPELLANTS)

    Lord Wilberforce
    Lord Diplock
    Lord Fraser of Tullybelton
    Lord Scarman
    Lord Roskill

    Lord Wilberforce

    my lords,

    This appeal involves a small sum of money (£16.50), but is said to raise
    two questions of general importance for airlines and travellers by air. It
    does, in addition, require discussion of some important issues concerned
    with the interpretation of treaties.

    The respondent, Mr. Fothergill, in March 1975 arrived at Luton airport
    after an international flight on one of the appellant's aircraft. When his
    registered baggage, consisting of a suitcase containing personal effects, was
    delivered to him he noticed that it was damaged. He immediately reported
    this to an official of the airline, and, as is apparently usual, a Property
    Irregularity Report (P.I.R.) on a printed form, was completed. Under the
    heading " Nature of Damage " there was inserted " Side seam completely
    " parted from the case. Damage occurred on inbound flight ". This damage
    was later fixed at £12.50 and in due course the airline accepted liability
    for it. After the respondent reached home he discovered that some of the
    contents were missing: a shirt, a pair of sandals and a cardigan—value
    £16.50. Mr. Fothergill recovered this sum from his insurers who now support
    his claim against the airline—in fact, no doubt, their insurers. The flight
    in question was " international carriage " and was governed by the Warsaw
    Convention of 1929 as amended by The Hague Protocol of 1955.

    The airline relies on Article 26 as an answer to the claim. This (as
    amended by Article XV of the Protocol) reads:

    " (1) Receipt by the person entitled to delivery of baggage or cargo
    " without complaint is prima facie evidence that the same has been
    " delivered in good condition and in accordance with the document of
    " carriage.

    " (2) In the case of damage, the person entitled to delivery must
    " complain to the carrier forthwith after the discovery of the damage,
    " and, at the latest, within seven days from the date of receipt in the
    " case of baggage and fourteen days from the date of receipt in the
    " case of cargo. In the case of delay, the complaint must be made at
    " the latest within twenty-one days from the date on which the baggage
    " or cargo have been placed at his disposal.

    " (3) Every complaint must be made in writing upon the document
    " of carriage or by a separate notice in writing despatched within the
    " times aforesaid.

    " (4) Failing complaint within the times aforesaid, no action shall
    " lie against the carrier, save in the case of fraud on his part."

    The airline claims that Mr. Fothergill should have complained of the loss
    within seven days and that, since he did not so do, his claim is barred by
    paragraph 4. Mr. Fothergill's answer to this is first, that no complaint was
    necessary, since paragraph 2 applies only to damage and not to loss, total
    or partial; second, that if a complaint was necessary, he made one in time
    through the P.I.R.

    The first point, which depends upon the construction of the Article, has
    been disposed of for the future, as regards cases governed by English law,
    by the Carriage by Air and Road Act 1979, section 2, which enacts
    specifically that Article 26 (2) supra is to be construed as including loss of
    part of the baggage. However, it appears that there are outstanding a number

    2

    of cases which arose before the Act was passed or which the Act cannot affect
    (It clearly, in my opinion, cannot be used as an aid to interpretation of the
    pre-existing Convention.) The second point continues to be relevant, and
    it is no doubt desirable for both airlines and passengers to know what kind
    of complaint will satisfy the requirement.

    It is first necessary to establish the nature and status of Article 26. The
    Warsaw Convention of 1929, which contained an Article 26 in similar form,
    was agreed to in a single French text, deposited with the Government of
    Poland. It was introduced into English law (not being, of course, self-
    executing) by the Carriage by Air Act 1932. This set out in the First
    Schedule a translation of the Convention into English and provided (section
    1) that the provisions of the Convention as so set out should have the force
    of law in the United Kingdom.

    In 1955 a Conference was convened at the Hague, in order, inter alia,
    to make changes in the limits on the carrier's liability. Occasion was taken
    to make other amendments; one such amendment (Article XV in the
    resulting Protocol) was to substitute for Article 26 (2) (Warsaw) a new
    paragraph altering the time limits but not otherwise changing the wording.
    This Protocol was imported into English law by the Carriage by Air Act
    1961, which replaced the Act of 1932. This contained a first Schedule in
    two parts. Part I set out an English text of the Warsaw Convention, as
    amended. Part II set out the French text of that Convention as amended.
    Section 1 of the Act provided (subsection (D) that the Convention as
    amended " as set out in the First Schedule " should have the force of law
    in the United Kingdom. Subsection (2) was as follows:

    " (2) If there is any inconsistency between the text in English in'
    " Part I of the First Schedule to this Act and the text in French in
    " Part II of that Schedule, the text ,in French shall prevail."

    My Lords, some of the problems which arise when the Courts of this
    country are faced with texts of treaties or conventions in different languages
    were discussed in James Buchanan & Co. Ltd. v. Babco Forwarding and
    Shipping (UK) Ltd.
    [1978] A.C. 141 It is obvious that the present represents
    a special and indeed unique case.

    Here it is not only permissible to look at a foreign language text, but
    obligatory. What is made part of English law is the text set out in the First
    Schedule,
    i.e. in both Part I and Part II, so both English and French texts
    must be looked at. Furthermore, it cannot be judged whether there is an
    inconsistency between two texts unless one looks at both. So, in the present
    case the process of interpretation seems to involve:

    1. Interpretation of the English text, according to the principles upon
    which international conventions are to be interpreted (see Buchanan's case
    vide supra and Stag Line Ltd. v. Foscolo, Mango and Co. Ltd. 1932
    A.C. 328, 350).

    1. Interpretation of the French text according to the same principles
      but with additional linguistic problems.

    2. Comparison of these meanings.

    Moreover, if the process of interpretation leaves the matter in doubt, the
    question may have to be faced whether " Travaux preparatoires " may be
    looked at in order to resolve the difficulty.

    I start by considering the purpose of Article 26, and I do not think that
    in doing so I am infringing any "golden rule". Consideration of the
    purpose of an enactment is always a legitimate part of the process of
    interpretation, and if it is usual—and indeed correct—to look first for a
    clear meaning of the words used, it is certain, in the present case, both on
    a first look at the relevant text, and from the judgments in the courts below,
    that no " golden rule " meaning can be ascribed. The purpose of Article
    26, on the other hand, appears to me to be reasonably clear. It is:

    (1) to enable the airline to check the nature of the " damage ";

    3

    1. to enable it to make enquiries how and when it occurred;

    2. to enable it to assess its possible liability, to make provision in its
      accounts and if necessary to claim on its insurers;

    3. to enable it to ensure that relevant documents (e.g. the baggage checks
      or passenger ticket, or the air waybill) are retained until the issue of liability
      is disposed of.

    If one then enquires whether these considerations are relevant to a case
    of partial loss of objects contained in baggage, the answer cannot be
    doubtful: they clearly are. Moreover, prompt notification may give the
    airline an opportunity of recovering the objects lost.

    In particular, as regards (4), preservation of the baggage check is
    important in order to establish the relevant weight upon which the limit of
    liability is fixed—see Article 22(2)(b) which explicitly mentions " any
    " object contained therein " (e.g. in registered baggage).

    There seems, on the contrary, to be no sense in making a distinction
    between damage to baggage—which presumably must include damage to
    contents—and loss of contents.

    What then of the language? No doubt in an English legal context, loss
    is one thing, damage another. But the nature of the text in question does
    not suggest that it was drafted with strict English meanings in mind. First,
    in the English text, the word " damage" in the Convention is used in
    more than one sense. Sometimes it means " monetary loss "—for example
    in Article 17, or Article 19. Sometimes it means "physical damage" e.g.
    Article 10, line 2, Article 22(2)(b). In some Articles it is used with both
    meanings, e.g. Article 18. Whether it can include "partial loss" is,
    textually, open to argument. There can be no doubt that the carrier is
    liable for loss, total or partial of the contents of baggage—the appellant
    does not contend the contrary. Article 22(2)(b) indeed makes provision for
    this. But when one looks for the word which covers this, the search yields
    no clear result. Article 18 refers to "loss of" registered baggage, and
    " damage to " registered baggage. Nothing there is really apt to cover loss
    of something contained in the baggage. I am inclined to agree with Lord
    Denning M.R. when he says "In article 18(1) I think 'loss of means loss
    " of the whole suitcase ". In this state of the text we must see whether the
    French text can assist.

    The French text. This, at least, avoids part of the English difficulty,
    in that it compares the use of the word " dommage " to monetary loss
    (Articles 17, 18, 19, 20, 25.). When it refers to physical "damage" it
    uses the word " avarie ". So what does " avarie " mean? This raises,
    once more, the question how the court ought to ascertain the meaning of
    a word or an expression in a foreign language.

    My Lords, as in Buchanan's case, I am not willing to lay down any
    precise rule on this subject. The process of ascertaining the meaning must
    vary according to the subject matter. If a judge has some knowledge
    of the relevant language, there is no reason why he should not use it:
    this is particularly true of the French or Latin language, so long languages
    of our courts. There is no reason why he should not consult a dictionary,
    if the word is such that a dictionary can reveal its significance:
    often of course it may substitute one doubt for another. (In Buchanan's
    case I was perhaps too optimistic in thinking that a simple reference to
    a dictionary could supply the key to the meaning of avarie.) In all cases
    he will have in mind that ours is an adversary system: it is for the parties
    to make good their contentions. So he will inform them of the process
    he is using, and if they think fit, they can supplement his resources with
    other material—other dictionaries, other books of reference, text-books,
    and decided cases. They may call evidence of an interpreter, if the
    language is one unknown to the court, or of an expert if the word or

    4

    expression is such as to require expert interpretation. Between a technical
    expression in Japanese, and a plain word in French, there must be a whole
    spectrum which calls for suitable and individual treatment.

    In the present case the word " avarie " would not I think convey a clear
    meaning to an English mind without assistance. The courts (both Kerr J.
    and the Court of Appeal) therefore looked at dictionaries and at certain
    text-books and articles and in my opinion this process cannot be criticised.
    Neither could they have been criticised if they had allowed expert evidence
    to be called—for " avarie " is, or may be, a term of art. There were five
    dictionaries involved, of evidently different standards: some of English
    publication, others of French. I regard the latter, which provide an analysis,
    as of greater value than the former, which provide a translation—since then
    we have to interpret the translation. Two are of high quality—that of
    M. Raymond Barraine, docteur en droit, and the Tresor de la langue
    franchise published by the National Centre of Scientific Research, 1974.
    They seem to me to show that " avarie " has both an ordinary meaning and
    a special meaning as a term of maritime law. In the ordinary meaning, the
    word signifies physical damage to a movable; in its special meaning, it is
    capable of meaning physical damage, or loss, including partial loss. In
    my opinion this does not carry the matter much beyond the English text:
    both use words of some ambiguity, perhaps the French text points
    somewhat more in the direction of partial loss than does the English. The
    text-book writers (to be considered) do not favour the view that " avarie "
    naturally means partial loss and I do not think that we can so hold.
    An attempt was made to carry the argument from the French text further
    by suggesting that " avarie" means " average" and " average " means
    partial loss. But I cannot accept that it is sound, in effect, to retranslate
    " avarie" by " average" when in fact it is translated by " damage".
    Clearly " average " could not be sensibly inserted in the English text in
    replacement for " damage ". Nor am I persuaded that " average ", though
    it may have to do with partial loss, means partial loss.

    The linguistic argument, alone, remains to my mind inconclusive.

    The text-books and articles, however, do take the matter further. Professor
    de Pontavice in his book on Maritime Law and Air Law expresses a clear
    opinion " that ' avarie' in Article 26 includes partial loss following" a
    theft, approving a decision to this effect by an Argentine Court. Monsieur
    Max Litvine, of the Free University of Brussels writes, referring to Article
    26 (v.s.), " where the loss or destruction is only partial, it is necessary to
    " decide that article 26 must be effective since the partial loss or destruction
    " a fortiori constitutes damage". (Droit Aerien 1976.) Professor Rodiere
    of the University of Paris in his book on Transport Law (Paris 1977) writes
    (s.607) " the text " (of Article 26) " relates only to average " (i.e. " avarie ").
    " In my view, it must be extended to the partial loss " agreeing with
    M. Litvine whose work " is the safest there is ". He appears to express a
    contrary view in the Precis Dalloz (1977) s.271 but the fuller treatment in
    his own work is, in my view, to be preferred. Dr. Werner Guldimann,
    Attorney at Zurich, often acting as expert for the Swiss Government, writes
    in " Internationales Luftrecht ":

    " Article 26, paragraph 2, stipulates time limits for complaints made
    " in respect of damage and delays to goods and baggage. No time
    " limit is set for destruction and loss, since in such cases it may be
    " assumed that the carrier is already aware of the occurrence and is
    " able to make the necessary arrangements required to secure proof—
    " since this is the aim of such time limits. Thus the term damage is
    " given a broad interpretation: simply partial loss and partial
    " destruction are both, basically, considered to be damage."

    I quote also from an extract from the Argentine Compendio de Derecho
    Aeronautico written by Juan La Paz because this well states the reasoning:

    "As paragraph 2 of Article 26 only mentions 'damage', it is
    " necessary to determine whether the protest" (i.e. complaint) " is
    " relevant in the case of ' loss ' of the merchandise or luggage.

    5

    " A distinction should be made here between total loss and partial
    " loss. Since the first is a fact which can be verified at any time
    " without the need for proof, a protest is not necessary to bring
    " an action against the transporter and article 13(3) .... is applicable
    " . . .

    " On the other hand, in the case of partial loss, it is vital to establish
    " what is missing as quickly as possible since, as time goes by, the
    " probability of the loss being the result of an event occurring after
    " delivery increases ".

    My Lords, this consensus is impressive. It supports an interpretation of
    Article 26(2) to which a purposive construction, as I hope to have shown,
    clearly points. The language of both texts is unsatisfactory: some strain,
    if not distortion, seems inevitable but of the governing French text it can
    at least be said that it does not exclude partial loss from the scope of the
    paragraph. I am of opinion therefore, on the whole, that following the
    sense of the matter and the continental writers, we should hold that partial
    loss of contents is included in " damage " and that consequent action may
    be barred in the absence of a timeous complaint. I should add that we
    were referred to a number of decided cases in various foreign courts, only
    a few of which were cited below. But, with all recognition of the diligence
    of Counsel, I do not think that I need, or indeed should attempt to
    summarise them. For three reasons: first, with the exception of one
    decision of the Belgian Cour de Cassation, they are not decisions of the
    highest courts; secondly, the process of law reporting varies from country
    to country and they may not be exhaustive. The dangers inherent in trying
    to assess a balance of foreign judicial opinion from available cases were
    well shown in Ulster-Swift Ltd. v. Taunton Meat Haulage Ltd. [1977]
    1 W.L.R. 625 and in Buchanan's case (vide supra); thirdly, in any event,
    it was not beyond argument when the facts of each case were carefully
    examined on which side the preponderance in quantity, or quality, lay. It
    is safe to say that your Lordships' decision in this case will not be out of
    line with the balance of decisions given elsewhere.

    This conclusion, that a complaint was necessary within seven days, makes
    it strictly unnecessary to decide whether reliance may be placed on travaux
    preparatoires
    and, if so, to what effect. But as these matters were relied
    on in the Court of Appeal by the learned Master of the Rolls, Browne and
    Geoffrey Lane L.JJ. taking the contrary view, I think that I must add some
    observations. I make it clear that they relate solely to the use of travaux
    preparatoires
    in the interpretation of treaties, and do not relate to interpre-
    tation of domestic legislation, rules as to which have been recently laid
    down by this House.

    There is little firm authority in English law supporting the use of travaux
    preparatoires
    in the interpretation of treaties or conventions. The passage
    usually cited in support of such use, is from the judgment of Lord Reading
    C.J. in Porter v. Freudenberg [1915] 1 K.B. 857, 876 when reference was
    made to " statements made in a committee of the conference which prepared
    " the Hague Convention of 1907 upon the Laws and Customs of war on
    " land." The judgment contains no reasoning in support of this approach,
    and the case was decided upon the wording of the relevant article in its
    context in preference to the (inconsistent) statements. There is a passing
    reference to travaux preparatoires in relation to an international convention
    in Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740, 761, per Diplock
    L.J. but even this is tentatively expressed. When dealing with an inter-
    national treaty or convention I think that there is no doubt that international
    courts and tribunals (I exclude from this category the Court of Justice of
    the European Communities which stands in a class apart) do in general
    make use of travaux preparatoires as an aid to interpretation. See O'Connell,
    International Law, 2nd Ed. (1970), p. 262, Brownlie, Principles of Public
    International Law
    (1979) 627-8. This practice is cautiously endorsed by
    the Vienna Convention on the Law of Treaties of 1969, Article 32. We
    are here concerned with what is in effect a private law convention likely

    6

    to be litigated primarily in municipal courts. In the interest of uniformity
    of application we ought, in considering whether to use travaux preparatoires,
    to have regard to the general practice applied, or likely to be applied, in
    the courts of other contracting states. Professor A. F. Dumon (Advocate-
    General of the Cour de Cassation of Belgium) in his comprehensive examina-
    tion of the subject of interpretation, delivered to the Court of Justice of
    the European Communities in 1976, states (p. 101) as follows:

    " It may be stated that in the Federal Republics of Germany, France,
    " Italy, Luxembourg, The Netherlands and Belgium both ' administra-
    " live' and other courts have recourse in varying degrees, but generally
    " with prudence and caution, to preparatory work of the laws of the
    " legislature ".

    Professor Dumon here is dealing primarily with domestic laws but a footnote
    indicates that this approach has been used in interpreting an international
    treaty.

    An example of this can be found in the United States of America, see
    Day v. Transworld Airlines Inc. (1975) 523 F. 2d 31, a decision of the
    second circuit of the United States Court of Appeals, on the Warsaw
    Convention. That Court took into account the preparatory work prior to
    the Warsaw Conference done by the C.I.T.E.J.A. and the Minutes of the
    Warsaw Conference. It is no doubt true that United States courts are in
    general more liberal in recourse to legislative history than are courts in this
    country, but the decision in question is one which I would cautiously follow.

    A second important illustration is provided by a decision in 1977 of the
    French Cour de Cassation sitting in Assemblee pleniere—in a case on the
    Warsaw Convention Article 29—Consorts Lorans v. Air France (Juris-
    prudence p. 268). In his " Conclusions" the Advocate-General M. R.
    Schmelck said this (my translation):

    " I shall not take up time upon the old dispute concerning the general
    " scope of travaux preparatoires. I shall limit myself to the observation
    " that when one is concerned with the travaux preparatoires for an
    " international convention, there may be special reasons for not placing
    " too much reliance on them. The first is that although for a French
    " lawyer these travaux preparatoires may be of some value at least
    " by way of guidance, they have none for a lawyer brought up on the
    " principles of Anglo-Saxon law. Moreover, international tribunals, no
    " doubt under British influence, in general take no account of them.
    " Your Court itself does not attribute to them decisive force because
    " when there is a serious doubt upon the interpretation of a treaty, it
    " considers it necessary to consult the Ministry of Foreign Affairs in
    " order to ascertain the intention of the High Contracting Parties ".

    He continues by referring to the case (such as the Warsaw Convention
    itself) of an open convention which may be acceded to by states not parties
    to the negotiations.

    .

    The travaux preparatoires of the Warsaw Convention, he concludes,
    ought not to be treated as gospel truth.

    The court, in its decision, did not deal directly with these submissions.
    However, it referred to the decision appealed from as having reached an
    interpretation of Article 29 of the Warsaw Convention by reference, inter
    alia,
    to the travaux preparatoires without expressing disagreement with the
    procedure, and reversed it upon another ground, viz. that the Convention
    contains no express derogation from the rules of French domestic law.

    My Lords, if one accepts that this reflects a recognition on the part of
    French law, that in the interest of uniformity with English tendencies
    (perhaps rather overstated by the Advocate-General), the use of travaux
    preparatoires
    in the interpretation of treaties should be cautious, I think
    that it would be proper for us, in the same interest, to recognise that there
    may be cases where such travaux preparatoires can profitably be used.

    7

    These cases should be rare, and only where two conditions are fulfilled.
    first, that the material involved is public and accessible, and secondly, that
    the travaux preparatoires clearly and indisputably point to a definite
    legislative intention. It would I think be unnecessarily restrictive to exclude
    from consideration, as travaux preparatoires, the work of the Paris
    Conference of 1925, and the work of the C.I.T.E.J.A. before 1929, both of
    which are well known to those concerned with air law, in any case where
    a clear intention were to be revealed. If the use of travaux preparatoires is
    limited in this way, that would largely overcome the two objections which
    may properly be made: first, that relating to later acceding states—as to
    this see Brownlie, op. cit., p.628 citing the International Law Commission—
    and secondly, the general objection that individuals ought not to be bound
    by discussions or negotiations of which they may never have heard.

    The presently relevant travaux preparatoires are contained in the Minutes
    of the Hague Conference of 1955, published by the I.C.A.O. and available
    for sale in a number of places including H.M.S.O., and so accessible to
    legislators, text-book writers, airlines, and insurers. I would therefore be
    in favour of a cautious use of work leading up to the Warsaw Convention
    and the Hague Protocol.

    As regards the conclusions to be drawn from the latter in the present
    case, I have no reason to disagree with those reached by your Lordships.

    For the reasons I have already given I would hold, in agreement with
    Lord Denning M.R., that Mr. Fothergill should have lodged a complaint
    within seven days.

    Did he then lodge such a complaint? My Lords, I am clearly of opinion
    that he did not, and that the P.I.R. in no way qualified. It said nothing
    about the contents of the baggage and it was totally insufficient for the
    purposes for which it was required—as stated at the beginning of this
    opinion. One need only figure a case in which the objects lost were
    valuable jewellery to see the necessity for a specific complaint of the
    loss.

    In my opinion, therefore, the appeal must be allowed.

    Lord Diplock

    MY LORDS,

    I understand your Lordships to be of one mind in thinking that in
    Article 26 of the Warsaw Convention as amended at The Hague in 1955,
    which is set out in the Schedule to the Carriage by Air Act 1961, the word
    " damage" or " avarie " in relation to passengers' baggage includes loss
    of part of the contents of a passenger's suitcase; and that the Property
    Irregularity Report completed by Mr. Fothergill on his arrival at Heathrow
    did not comply with the requirements of that Article as respects the contents
    of his suitcase that were missing. With this conclusion I agree. I would
    have reached it even without such extraneous aids as are provided by the
    preparatory work leading to the conclusion of the Convention (travaux
    preparatoires),
    the commentaries of learned authors (doctrine), or the
    decisions of foreign courts (jurisprudence). 1 accept that both " damage "
    and " avarie " when looked at in isolation or in a context limited to the other
    words of the sentences in the English or French language in which they
    are respectively to be found in Article 26, are words that are ambiguous.
    They are capable of bearing either a narrower meaning confined to physical
    harm to the subject matter of the damage or avarie, and this is the more,
    usual meaning; or they may bear a more extensive meaning, with which
    avarie in particular is used as a term of legal art in connection with
    carriage by sea, as including also partial loss of the subject-matter carried.
    But giving, as one must, a purposive construction to the Convention looked

    8

    at as a whole, I should have found myself able to resolve the ambiguity
    in favour of the more extensive, although less usual, meaning by reference
    to the language of the Schedule to the Act of Parliament alone. I accept
    and adopt the reasons already stated by Lord Wilberforce for so interpreting
    the language of the Act.

    The question that divides this House is whether, in interpreting Article
    26, it is legitimate to have recourse to the Official Minutes of The Hague
    Conference of 1955 at which the protocol to the Warsaw Convention of
    1929 was agreed. This, as it seems to me, raises a question of constitutional
    significance as to the functions of courts of justice as interpreters of written
    law that is in force in the United Kingdom.

    For present purposes I can confine my consideration to the interpretation
    of the language that appears in Acts of Parliament themselves, leaving aside,
    on the one hand, secondary legislation made pursuant to law-making
    powers that have been delegated by Act of Parliament to some subordinate
    authority and, on the other hand, regulations made by the institutions of
    the European Communities which are directly applicable in the United
    Kingdom, but in respect of which the ultimate interpretative function is
    vested in the European Court of Justice by section 3(1) of the European
    Communities Act 1972. The constitutional function performed by courts
    of justice as interpreters of the written law laid down in Acts of Parliament
    is often described as ascertaining " the intention of parliament"; but what
    this metaphor, though convenient, omits to take into account is that the
    court, when acting in its interpretative role, as well as when it is engaged in
    reviewing the legality of administrative action, is doing so as mediator
    between the State in the exercise of its legislative power and the private
    citizen for whom the law made by Parliament constitutes a rule binding
    upon him and enforceable by the executive power of the State. Elementary
    justice or, to use the concept often cited by the European Court, the need
    for legal certainty, demands that the rules by which the citizen is to be
    bound should be ascertainable by him (or, more realistically, by a competent
    lawyer advising him) by reference to identifiable sources that are publicly
    accessible. The source to which Parliament must have intended the citizen
    to refer is the language of the Act itself. These are the words which
    Parliament has itself approved as accurately expressing its intentions.
    If the meaning of those words is clear and unambiguous and does not lead
    to a result that is manifestly absurd or unreasonable, it would be a
    confidence trick by Parliament and destructive of all legal certainty if the
    private citizen could not rely upon that meaning but was required to search
    through all that had happened before and in the course of the legislative
    process in order to see whether there was anything to be found from which it
    could be inferred that Parliament's real intention had not been accurately
    expressed by the actual words that Parliament had adopted to communicate
    it to those affected by the legislation.

    In purely domestic legislation not designed to give effect to Community
    directives or to international conventions to which the United Kingdom is
    a party, the choice of the actual words that are most apt to express with
    clarity and precision the intention of the promoters of the Bill (generally
    the Executive Government) will have been that of parliamentary counsel.
    His advice will also have been available on the wording of any amendments
    that have been made to the Bill in the course of its passage through the two
    Houses of Parliament. The audience to whom the language that he chooses
    is addressed is the judiciary, whose constitutional function is to resolve
    any doubts as to what written laws mean; and the resulting Act of
    Parliament will be couched in language that accords with the traditional,
    and widely criticised, style of legislative draftsmanship which has become
    familiar to English judges during the present century and for which their
    own narrowly semantic approach to statutory construction, until the last
    decade or so, may have been largely to blame. That approach for which
    parliamentary draftsman had to cater can hardly be better illustrated than
    by the words of Lord Simonds, L.C. in C.I.R. v. Ayrshire Employers

    0-

    Mutual Insurance Association Ltd. [1946] 1 All E.R. 637 "The section . . .
    " sect. 31 of the Finance Act, 1933, is clearly a remedial section .... It
    " is at least clear what is the gap that is intended to be filled and hardly less
    " clear how it is intended to fill that gap. Yet I can come to no other
    " conclusion than that the language of the section fails to achieve its
    " apparent purpose and I must decline to insert words or phrases which
    " might succeed where the draftsman failed ". (p.641).

    The unhappy legacy of this judicial attitude, although it is now being
    replaced by an increasing willingness to give a purposive construction to
    the Act, is the current English style of legislative draftsmanship. It is
    wary of laying down general principles to be applied by the courts to
    the varying facts of individual cases rather than trying to provide in express
    detail what is to be done in each of all foreseeable varieties of circumstances.
    In the attempt to do this the draftsman will have taken account of technical
    and competing canons of construction that are peculiar to English written
    law; and will have relied heavily on precedent in his use of words and
    grammatical constructions and general layout used in earlier Acts of
    Parliament that have been the subject of judicial exegesis.

    So far as purely domestic legislation is concerned it is well established
    as a principle of interpretation that, even where the words of a statute are
    ambiguous or obscure, the proceedings in Parliament during the course of
    the passage of the Bill may not be resorted to for the purpose of ascertaining
    what ambiguities or obscure provisions mean. The reasons why the nature
    of the parliamentary process at Westminster would make this an unreliable
    and inappropriate guide to the interpretation of a statute have been often
    stated by this House and need no repeating. So Hansard can never form
    part of the " travaux preparatoires " of any Act of Parliament whether it
    deals with purely domestic legislation or not. Where the Act has been
    preceded by a report of some official commission or committee that has
    been laid before Parliament and the legislation is introduced in consequence
    of that report, the report itself may be looked at by the court for the limited
    purpose of identifying the " mischief " that the Act was intended to remedy,
    and for such assistance as is derivable from this knowledge in giving the
    right purposive construction to the Act. Only to this limited extent are what
    would in continental legal systems be classified as " travaux preparatoires ",
    legitimate aids to the construction of an Act of Parliament of the United
    Kingdom which deals with what is purely domestic legislation.

    It is, however, otherwise with that growing body of written law in force
    in the United Kingdom which, although it owes its enforceability within the
    United Kingdom to its embodiment in or authorisation by an Act of
    Parliament, nevertheless owes its origin and its actual wording to some
    prior law-preparing process in which Parliament has not participated, such
    as the negotiation and preparation of a multilateral international convention
    designed to achieve uniformity of national laws in some particular field of
    private or public law, which Her Majesty's Government wants to ratify on
    behalf of the United Kingdom but can only do so when the provisions of
    the Convention have been incorporated in our domestic law. The product
    of this law-preparing process is generally contained in texts expressed in
    several different languages all of which are of equal authenticity and can be
    looked at to clarify the meaning of any one of them. The Warsaw
    Convention of 1929 and its later protocols are exceptions inasmuch as the
    only authentic text is that expressed in the French language which is set
    out in Part 2 of the Schedule to the Carriage by Air Act 1961.

    The language of that Convention that has been adopted at the
    international conference to express the common intention of the majority
    of the states represented there, is meant to be understood in the same
    sense by the courts of all those states which ratify or accede to the
    Convention. Their national styles of legislative draftsmanship will vary
    considerably as between one another. So will the approach of their

    10

    judiciaries to the interpretation of written laws and to the extent to which
    recourse may be had to travaux preparatoires, doctrine and jurisprudence
    as extraneous aids to the interpretation of the legislative text.

    The language of an international convention has not been chosen by an
    English parliamentary draftsman. It is neither couched in the conventional
    English legislative idiom nor designed to be construed exclusively by English
    judges. It is addressed to a much wider and more varied judicial audience
    than is an Act of Parliament that deals with purely domestic law. It should
    be interpreted as Lord Wilberforce put it in James Buchanan & Co. Ltd v.
    Babco Forwarding and Shipping (UK) Ltd.
    [1978] A.C. 141. at 152,
    " unconstrained by technical rules of English law, or by English legal
    " precedent, but on broad principles of general acceptation ".

    My Lords, it would seem that courts charged with the duty of interpreting
    legislation in all the major countries of the world have recourse in greater
    or less degree to " travaux preparatoires ", or " legislative history " (as
    it is called in the United States) in order to resolve ambiguities or obscurities
    in the enacting words; though the extent and character of the extraneous
    material to which reference is permitted under this head varies considerably
    as between one country and another. As Lord Wilberforce has already
    pointed out, international courts and tribunals do refer to travaux
    preparatoires
    as an aid to interpretation of treaties and this practice as
    respects national courts has now been confirmed by the Vienna Convention
    on the Law of Treaties of 1969, to which H.M. Government is a party
    and which entered into force a few months ago. It applies only to treaties
    concluded after it came into force and thus does not apply to the Warsaw
    Convention and protocol of 1955; but what it says in Articles 31 and 32
    about interpretation of treaties, in my view, does no more than codify
    already-existing public international law. So far as needs citation here
    they read as follows:

    Article 31(1) of the Vienna Convention:

    " 1. A treaty shall be interpreted in good faith in accordance with
    " the ordinary meaning to be given to the terms of the treaty in
    " their context and in the light of its object and purpose."

    Article 32:

    " Recourse may be had to supplementary means of interpretation,
    " including the preparatory work of the treaty and the circumstances
    " of its conclusion, in order to confirm the meaning resulting from the
    " application of article 31, or to determine the meaning when the
    " interpretation according to article 31:

    " (a) leaves the meaning ambiguous or obscure; or

    " (b) leads to a result which is manifestly absurd or " unreasonable."

    My Lords, the delegates of the States represented at the international
    conference at which The Hague Protocol to the Warsaw Convention was
    concluded may be taken to have known that " the preparatory work of
    " the treaty and the circumstances of its conclusion " could be taken into
    consideration in determining the meaning of the Convention where the actual
    terms, even when read in their context and in the light of the treaty's
    object and purpose, leave the meaning still ambiguous or obscure. An
    example of their awareness of this is to be found in the Minutes of the
    Meeting of the Conference on 20 September 1955 where, in relation to
    a vote taken on a proposed amendment to Article 19, it is recorded:

    " The President stated that, in the event of a negative vote on the
    " proposal, the Conference would be understood as having stated
    " that the word ' unreasonable' was not necessary because it was
    " already implied in Article 19 as at present drafted ".

    Accordingly in exercising its interpretative function of ascertaining what it
    was that the delegates to an international conference agreed upon by their
    majority vote in favour of the text of an international convention where

    11

    that text itself is ambiguous or obscure, an English court should have
    regard to any material which those delegates themselves had thought would
    be available to clear up any possible ambiguities or obscurities. Indeed,
    in the case of Acts of Parliament giving effect to international conventions
    concluded after the coming into force of the Vienna Convention on the
    Law of Treaties, I think an English court might well be under a
    constitutional obligation to do so. By ratifying that Convention, H.M.
    Government has undertaken an international obligation on behalf of the
    United Kingdom to interpret future treaties in this manner and since under
    our constitution the function of interpreting the written law is an exercise
    of judicial power and rests with the courts of justice, that obligation
    assumed by the United Kingdom falls to be performed by those courts.

    My Lords, although each of your Lordships would, I believe, have
    reached the same conclusion that in Article 26 of the Warsaw Convention
    (as amended) " damage " or " avarie " in the case of passenger's baggage
    does include partial loss of contents, even if no recourse is had to any
    " travaux preparatoires ", it would, in my view, be unrealistic to deny that
    the language of the Article is ambiguous, seeing that Kerr J. and two of
    the members of the Court of Appeal ascribed a narrower meaning to it.
    So I think the case is one where it is right to have recourse to the Minutes
    of the Conference at The Hague to see if they confirm or contradict or
    contain nothing capable of affecting the prima facie view which
    consideration of the terms of the Convention itself has led your Lordships
    to form as to the meaning which the expression " damage " in Article 26
    was intended to bear.

    This said, I do not myself derive any great assistance from this source.
    With some personal experience of international conferences of this kind.
    1 should not attach any great significance to the fact that two delegates in
    withdrawing an amendment to Article 26 which would have included in
    the Article an express reference to partial loss as well as to damage, said,
    without contradiction by any other delegates who happened to be present
    at that time, that they did so on the understanding that partial loss was
    included in the expression damage. Macchiavellism is not extinct at inter-
    national conferences. For what it is worth, however, it tends to confirm
    the prima facie view at which your Lordships had already arrived; and there
    is nothing else in the Minutes of the Proceeding which contradicts it.

    My Lords, I can deal much more briefly with " doctrine" and
    " jurisprudence ". Those commentaries by learned authors on the text of
    the Convention to which your Lordships have been referred were published
    after the Convention had been concluded. They did not precede it; the
    delegates cannot have taken them into account in agreeing on the text. To
    a court interpreting the Convention subsequent commentaries can have
    persuasive value only; they do not come into the same authoritative category
    as that of the institutional writers in Scots Law. It may be that greater
    reliance than is usual in the English courts is placed upon the writings of
    academic lawyers by courts of other European states where oral argument
    by counsel plays a relatively minor role in the decision-making process.
    The persuasive effect of learned commentaries, like the arguments of
    counsel in an English court, will depend upon the cogency of their reasoning.
    Those to which your Lordships have been referred contain perhaps rather
    more assertion than ratiocination, but for the most part support the
    construction favoured by your Lordships.

    As respects decision of foreign courts, the persuasive value of a particular
    court's decision must depend upon its reputation and its status, the extent
    to which its decisions are binding upon courts of co-ordinate and inferior
    jurisdiction in its own country and the coverage of the national law reporting
    system. For instance your Lordships would not be fostering uniformity of
    interpretation of the Convention if you were to depart from the prima facie
    view which you had yourselves formed as to its meaning, in order to avoid
    conflict with a decision of a French court of appeal that would not be

    12

    binding upon other courts in France, that might be inconsistent with an
    unreported decision of some other French court of appeal and would be
    liable to be superseded by a subsequent decision of the Court of Cassation
    that would have binding effect upon lower courts in France. It is no
    criticism of the contents of the judgments in those foreign cases to which
    your Lordships have been referred if I say that the courts by which they
    were delivered do not appear to me to satisfy the criteria which would
    justify your Lordships in being influenced to follow their decisions in the
    interests of uniformity of interpretation.

    Lord Fraser of Tullybelton

    My lords,

    I need not repeat the facts in this appeal which are in small compass
    and have been explained by my noble and learned friend, Lord Wilberforce.
    The appeal raises two questions on the construction of the Warsaw
    Convention, as amended at The Hague, 1955 all as now set out in Schedule I
    to the Carriage by Air Act 1961 ("the Convention ").

    The first question is whether the word " damage " in Article 26 (2) of the
    Convention includes partial loss of some of the contents of baggage, with
    the result that the owner cannot claim for the loss unless he has complained
    to the carrier within seven days of receipt of the baggage. If damage does
    include partial loss, the second question is whether the appellant made
    sufficient complaint in this case. The Carriage by Air Act, 1961 provides
    in section 1(1) that the Convention " as set out in the First Schedule to this
    " Act " shall have the force of Jaw in the United Kingdom. By section 1(2)
    it provides: " (2) If there is any inconsistency between the text in English
    " in Part I of the First Schedule to this Act and the text in French in Part II
    " of that Schedule, the text in French shall prevail ".

    Clearly an English court must consider first the text in English and I
    shall do so. Article 26 has already been quoted in full by my noble and
    learned friend, Lord Wilberforce, and I do not repeat it. The respondent
    contends that the word " damage " in Article 26(2) applies only to the
    physical damage to his suitcase and not to the loss of contents, because
    the latter is not damage but partial loss. On a literal reading of the words
    I agree with Kerr J. and with Browne and Geoffrey Lane LJJ. that the
    respondent's contention is correct. That was apparently the view of the
    appellants whose tickets contained a notice informing passengers (presumably
    in compliance with Article 4(l)(c) of the Convention) that "in case of
    " damage to baggage . . . complaint must be made in writing to carrier
    " forthwith after discovery of damage and, at latest, within seven days from
    " receipt." (Emphasis added).

    But we are here concerned with construing an Act which gives effect
    to, and actually incorporates, an international convention, and for that
    purpose a strictly literal construction is not appropriate. Applying the broad
    principles of construction which are appropriate—see Lord Macmillan in
    Stag Line Ltd. v. Foscolo, Mango & Co., Ltd. [1932] A.C. 328, 350—1 am
    left in doubt whether " damage " was used in a wider sense to include
    partial loss or not. There is much to be said for the wider construction.
    Article 26 of the Convention forms part of a package deal to hold the
    balance fairly between carriers by air, on the one side, and passengers and
    consignors of cargo, on the other. The main elements of the package, so
    far as passengers are concerned, begin with Article 18 which makes the
    carrier liable for damage sustained in the event of destruction or loss of
    or damage to any registered baggage, without proof of fault on his part.
    The only way that the carrier can completely escape liability under Article
    18(1) is by proving that he has taken all necessary measures to avoid the
    damage, or that it was impossible for him to take such measures (Article

    13

    20). But his liability is limited in amount by reference to the weight of
    the registered baggage or cargo (Article 22(2)(a)). Article 22(2)(b) contains
    the only reference to the contents of baggage or cargo. It provides as
    follows:

    " (b) In the case of loss, damage or delay of part of registered
    " baggage or cargo, or of any object contained therein, the weight to
    " be taken into consideration in determining the amount to which the
    " carrier's liability is limited shall be only the total weight of the
    " ' package or packages concerned ...'". (Emphasis added).

    The English text of that paragraph is not very happily worded, but its
    meaning is clear enough, and it recognises that baggage or cargo consists
    of the whole package—both container and contents. That is sensible,
    especially as the contents will usually be more valuable than the container.
    It is difficult to see why it should be necessary to complain forthwith about
    damage to the container but not about loss of all or part of its contents;
    yet that would be the result if the respondent's contention is successful.
    There are at least two reasons for requiring complaints to be made
    promptly. One is to enable the carrier to make enquiries into the loss or
    damage while there is still hope of discovering how it occurred and of
    recovering anything lost, and the other is to enable him to check the bona
    fides
    of the complainer. Both reasons apply just as much to contents as
    to the container. It is true that complaint is not required in case of total
    loss, but that is probably because total loss will inevitably be brought to
    the notice of the carrier when the person entitled to delivery fails to obtain
    it. The absence of a requirement for complaint in the case of total loss
    therefore does not effect the argument that in case of partial loss complaint
    is necessary.

    For these reasons the meaning of " damage " in Article 26(2) of the
    English text is, in my opinion, ambiguous. It therefore becomes necessary
    to refer to the French text. Such reference would have been proper even
    if the French and English texts had been equally authentic, and it is essential
    in this case, where the French text is to prevail. But even in this case it
    would not be necessary to refer to the French text unless either (1) the
    English text was ambiguous, or (2) the court was invited by one or both
    parties to refer to the French text for the purpose of considering an alleged
    inconsistency between the French and the English texts. I do not think
    that the judge has a duty to search out inconsistencies for himself, although
    if he happened to notice what he thought was an inconsistency he should
    invite argument upon it.

    On the question of how reference to the French text is to be made, I
    respectfully agree with the view expressed by Lord Wilberforce in Buchanan
    & Co. v. Babco
    [1978] A.C. 141, 152 that precise rules are inappropriate.
    Certainly a rule that the judge should not be permitted to refer to the
    French text without evidence from qualified experts, would be unreasonably
    restrictive. When the judge's personal knowledge of French, or other
    relevant foreign language, is inadequate for the immediate task, he should
    rely on dictionaries, or, if they are not sufficient, on evidence from qualified
    experts, as seems to him appropriate in the particular case.

    In the present case the French word to be considered is " avarie ". The
    English word " damage " is used throughout the Convention in two senses.
    In some places it is used to mean economic loss (e.g. in lines 1 and 3 of
    Article 18(1)), and the corresponding word in French in those places is
    "dommage". In other places (e.g. in line 2 of Article 18(1), damage is
    used in the sense of physical injury, and in those places the French
    equivalent is " avarie ". We were referred to several French dictionaries
    from which I learn that " avarie " is derived from the same root as the
    English word " average " and that it has various meanings including, in
    maritime law, damage and loss. But the dictionaries do not satisfy me
    that it unambiguously means partial loss, such as occurred here, and several
    writers learned in French law. to whose works we were referred, apparently

    14

    do not consider that it does. One such writer is Professor Rodiere, Professor
    of Maritime and of Transport Law in the Faculty of Law in Paris. Writing
    in Transport Law, published in Paris in 1977, with reference to Article 26(2),
    Professor Rodiere says (in translation):

    " The text thus relates only to average [avarie]. In my view, it must
    " be extended to the partial loss . . .". (for reasons which he explains).

    Professor Emmanuel Pontavice, Professor of the Faculty of Law and
    Economic Science of Nantes, in an article entitled Air Law, published in
    the Revue Tremestriel de Droit Commerciale, Volume 21, 1968, referred to
    a decision by the Federal Chamber of Buenos Aires, that a partial loss
    by theft constituted an average, in the sense of Article 26(2) and said
    this:

    " This judgment must be approved. In particular, the judgment
    " carefully distinguishes between total loss, which comes under Article
    " 13(3) of the Warsaw Agreement, and partial loss deriving from
    " theft, which must be assimilated to the average ".

    If " avarie " meant partial loss without ambiguity, there would be no
    need to " extend " its application or to " assimilate" partial loss to it.
    Accordingly, I do not consider that reference to the French text and the
    use of French dictionaries and commentaries on the word " avarie " remove
    the ambiguity of the English text. Nor do the decisions of foreign courts
    show, in my opinion, that there was a corpus of foreign law that we ought
    to place on this matter.

    On the other hand I do consider that the writings of the learned authors
    from abroad to which we are referred, strongly support the purposive
    construction of Article 26(2) which would, in any event, have been possible
    for an English court construing the English text alone. On this matter I
    entirely agree with my noble and learned friend Lord Wilberforce, and
    I would adopt his reasoning, and his conclusion that we should hold that
    partial loss of contents is included in " damage " in Article 26(2).

    That would be enough to dispose of the appeal but, having regard to
    the use that was sought to be made, on behalf of the appellants, of travaux
    preparatoires,
    I wish to refer to that matter. It may be legitimate for
    English courts, when construing an Act of Parliament which gives effect
    to an international agreement, to make cautious use of the travaux
    preparatoires'
    for the purpose of resolving any ambiguity in the treaty—see
    Black-Clawson International Ltd. v. Papierwerke A.G. [1975] AC 591,
    640 per Lord Diplock. Even if that be so, we are in this case being invited
    to go a stage further and I for my part would decline to do so. We
    were invited to refer to the minutes of The Hague Conference of 1955, at
    which the Protocol to amend the Warsaw Convention of 1929 was agreed,
    for the purpose of finding there recorded an agreement between the states
    represented at the conference that " damage " in Article 26(2) was to be
    construed as including partial loss. It was said to be the duty of British
    courts to give effect to the alleged agreement. I shall assume, for the
    moment, that such an agreement is recorded in the minutes, although in
    fact I do not think it is. Making that assumption, I am of opinion that
    we should decline to give effect to the alleged agreement or to take judicial
    notice of it, because it has not been sufficiently published to persons whose
    rights would be affected by it, such as Mr. Fothergill, the respondent. They
    ought to be entitled to rely on the texts English and French, scheduled to
    the Act, without finding that the meaning of the text is controlled by some
    extraneous agreement of which they have no notice. If the meaning of an
    expression in an Act of Parliament, giving effect to a treaty which directly
    affects the rights of private citizens, has been defined by some extra-statutory
    agreement between the British government and other governments, I do
    not think the definition ought to be applied as part of English law unless
    it has been published to the same extent as the Act, as if it were an
    interpretation clause, in the Act, which is what in substance it is. True,
    the minutes of The Hague Conference were published by the International

    15

    Civil Aviation Organisation in 1956, in English, French and Spanish, and
    were on sale at H.M. Stationery Office. Whether they are (or were in
    March 1975) still obtainable there I do not know, though I have my
    doubts. In any event, they have never been as readily accessible as the
    Act itself, and in my opinion they have never been reasonably accessible
    to private citizens, or even to lawyers who do not happen to specialise
    in air transport law. To treat an agreement buried in such material as
    capable of containing a binding definition of an expression in a Statute,
    seems to me to offend against the basic principle that " It is requisite that
    " the resolution [of the legislator] be notified to the people who are to obey
    " it "—Blackstone's Commentaries, 21st edition, (1844), p.45. I agree with
    Browne L.J. that that passage is very apposite. The fact that the parties
    with the real interest in this appeal happen to be insurers who are probably
    familiar with the minutes in question does not, in my opinion, affect the
    principle.

    It is not as if there would be any difficulty in publishing an international
    agreement on the construction of a treaty. A declaratory provision could
    be included in the Act of Parliament giving effect to the treaty. That has
    now been done on this very point, by the Carriage by Air Act 1979, section
    2(1), although that Act can have no bearing upon the construction of
    the 1961 Act for the present purpose. An agreement, such as is alleged to
    have been made in this case, must be fairly short and precise, and it differs
    in that respect from information about the legislative history of the
    convention which might be found in travaux preparatoires, or in the report
    of the official rapporteur of a conference. Such information, as Kerr J.
    said, " cannot conveniently be compressed into the text of the convention ".
    It might be equally inappropriate for inclusion in an Act of Parliament. I
    am not here concerned with information of that sort, but only with an
    agreement, or a precisely stated understanding, on the construction of a
    word or a phrase in a convention. I can conceive of no good reason why
    the agreed construction should not be expressly set out in an interpretation
    section of the statute giving effect to the convention. If that is not to be
    obligatory, as in my opinion it ought to be, then at the very least, the
    statute should draw attention to the agreement. I agree with Kerr J. that
    the statute should expressly provide that any report by an official rapporteur
    may be referred to as an aid to its interpretation. That would at least
    draw attention to the existence of such a document.

    The Vienna Convention on the Law of Treaties, dated 23rd May 1961,
    had not received sufficient ratifications to come into force by the date with
    which this appeal was concerned, and accordingly, it is not relevant to the
    present question. But it will apply to future treaties, and the British
    government, by ratifying it, may have undertaken that future treaties will
    be interpreted in accordance with the rules stated in the Convention. If
    so, it seems to me that the only way the government can implement its
    understanding is by ensuring that the legislation for giving effect to future
    conventions is properly drafted, and in particular, that it expressly sets out
    any agreed definitions. If that is not done, my conclusion would be that
    the government had failed to carry out its undertaking.

    With regard to the question of whether there was an agreement at The
    Hague Conference on the construction of the word " damage " in Article
    26(2), the minutes show that there was discussion in which some delegations
    expressed the view that damage clearly included partial loss and others
    (including the British) expressed the opposite view. At a meeting on
    27 September 1955, the delegate from The Netherlands proposed, seconded
    by the Swedish delegate, the addition of the words " or partial loss " after
    the word " damage ". The minutes record that eventually they " withdrew
    " their proposal on the understanding that the word ' damage' was to be
    " understood as including the words ' partial loss' ". But the minutes do
    not show that that understanding was generally accepted, or that it was
    given official recognition by the President; it is to be contrasted with an
    understanding relating to Article 19 of which the minutes of a meeting on

    16

    20 September 1955 record that "The President stated that, in the event
    " of a negative vote on the proposal, the conference would be understood
    " as having stated that the word ' unreasonable' was not necessary because
    " it was already implied in Article 19 as at present drafted ". Accordingly,
    if it was necessary, I would hold that the alleged agreement or understanding
    relating to Article 26(2) has not been established.

    It follows from what I have said that, in my opinion, the respondent's
    claim against the carrier is dependent upon his having complained to them,
    at latest, within seven days from receipt of his baggage, that some of the
    contents had been lost. I do not consider that the entry on the P.I.R.
    form was sufficient to cover loss of contents. It gave no hint that such
    loss had occurred, and indeed, by referring only to damage to the suitcase,
    it implied that that was the only matter of complaint. I entirely agree with
    the opinion of Kerr J. at p. 120A to the effect that:

    " The complaint must relate to the claim which the passenger is
    " seeking to enforce. It must give sufficient notice to the carrier to
    " enable him to make the relevant inquiries."

    For these reasons I would allow the appeal.


    Lord Scarman

    MY LORDS,

    I agree with the speech delivered by my noble and learned friend, Lord
    Wilberforce. If there be any difference between us, it relates only to our
    respective views as to the ordinary, or more common, meaning of the word
    " damage " in the English usage. But for the reasons appearing in his
    speech, and mine, the difference, if any there be, is of no moment.

    I venture, however, to add some comments of my own as to the correct
    approach by our courts to the interpretation of international conventions.
    I do so because of the growing importance of the task. I confidently
    expect that the municipal courts of the United Kingdom will have
    increasingly to tackle this job: and, if they are to do it successfully, they
    will have to achieve an approach which is broadly in line with the practice
    of public international law. Faced with an international treaty which has
    been incorporated into our law, British courts should now follow broadly
    the guidelines declared by the Vienna Convention on the Law of Treaties
    1969, to which my noble and learned friend refers. Lord Denning M.R.
    reconnoitred the ground—or, rather, the waters—of this ne\v judicial
    operation in the area of the common market when he spoke of an incoming
    tide of law flowing into our rivers and estuaries: see his dicta in Buhner
    Ltd. v. Bellinger S.A.
    [1974] 1 Ch. 401 at pp. 418F, 425 C-H. But the
    waters are not confined to the legal outpourings of the Rhine and the
    Scheldt: they comprise the oceans of the world. The Warsaw Convention
    is itself world-wide.

    The case concerns the Warsaw Convention for the unification of certain
    rules relating to international carriage by air. Upon a literal construction
    of Article 26(2) of the Convention I would agree with the interpretation
    placed upon the word " damage " in the article by Kerr J. at first instance
    and by Browne and Geoffrey Lane L.JJ. in the Court of Appeal. I would
    construe it as meaning physical injury to the baggage (or cargo) and as
    excluding a partial loss of the contents. Linguistically, I agree with the
    American judge in Schwimmer v. Air France (1976) 14 Avi. 17,466 that
    in ordinary usage " damage is damage and loss is loss ". Moreover I am
    satisfied that the ordinary meaning of " avarie", the word used in the
    French text, is physical harm, or injury to an object. Notwithstanding the
    specialist meaning of " avarie " in French maritime law where it does also
    include a maritime loss (compare the use of our word " average" in

    17

    marine insurance), there would be no inconsistency between the English
    and French texts unless the context of Article 26(2) be such that one must
    give to " avarie " this highly specialised meaning: but in my opinion, the
    context does not so require.

    If, therefore, the literal construction be legitimate, I would dismiss the
    appeal. But, in my judgment, it is not. It makes commercial sense to
    apply, if it be possible, the same time limits for giving notice of a complaint
    of partial loss of contents as for one of physical damage: and I am equally
    in no doubt that it is the duty of the English courts to apply, if possible,
    an interpretation which meets the commercial purpose of the Convention.
    In my judgment, such an interpretation is possible; and I have derived a
    measure of assistance in reaching my conclusion from certain aids to
    interpretation which, if we were not concerned with an international
    convention, it would not be legitimate to use.

    The trial judge's error was, I think, to construe the article as though it
    were merely a term of a ticket contract. It is much more than that. It
    is part of a convention intended to unify the rules relating to the carriage
    of persons and goods by air. The majority of the Court of Appeal (Browne
    and Geoffrey Lane L.JJ.) was, I think, also misled by the ordinary meaning
    of " damage " into interpreting the Convention in a way inconsistent with
    its purpose. It is because I consider it our duty to interpret, if it be possible,
    Article 26(2) in a way which is consistent with the purpose of the
    Convention, that I think it necessary to discuss the intricate questions
    raised as to the correct approach of a British court to a convention of this
    character.

    The issue between the parties is as to the construction to be put upon
    an Act of Parliament. But the Act requires the courts to interpret an
    international convention. The Convention is in French. The French text,
    as well as an English text, is scheduled to the Act. In the event of any
    inconsistency between the two texts, the French is to prevail. The French
    text is, therefore, English law. The English text is secondary—a statutory
    translation. Three problems of importance arise: —

    1. What is the approach to be adopted by British courts to the interpreta-
      tion of an international convention incorporated by statute into our law?

    2. To what aids may our courts have recourse in interpreting such a
      convention?

    3. If our courts may have recourse to " travaux preparatoires", to
      foreign judicial decisions, and to the writings of distinguished jurists expert
      in the field of law covered by the Convention, by what criteria are they to
      select such material and what weight are they to give it?

    The Convention under consideration is " The Warsaw Convention as
    amended at The Hague, 1955 ". Its purpose is to promote uniformity in
    its field. The Convention was signed on behalf of the United Kingdom at
    Warsaw on the 12th October 1929. An English text was scheduled to the
    Carriage by Air Act 1932, which provided that, in so far as they related
    to the rights and liabilities of carriers, passengers, consignors, consignees,
    and others concerned in the international carriage of persons, luggage or
    goods by aircraft for reward (or gratuitously by an air transport under-
    taking), the provisions of the Convention should have the force of law in
    the United Kingdom: section 1 and the 1st Schedule to the Act. The
    French text was not scheduled to the Act: but Article 36 of the Convention
    provided that " the Convention is drawn up in French ". The Convention
    was amended at an international conference at The Hague in 1955. The
    outcome of the conference was an amended text drawn up in French.
    Parliament legislated to repeal the 1932 Act and to give effect to the
    amended Convention by the Carriage by Air Act 1961. This is the statute
    which has to be construed in this appeal. It follows the pattern of its

    18

    predecessor. The amended Convention is set out in the 1st Schedule to
    the Act. The Schedule is in two parts, Part I being the English text and
    Part II the French text. Section 1(2) of the Act provides that:

    " 1.-(2) If there is any inconsistency between the text in English
    " in Part I of the First Schedule to this Act and the text in French
    " in Part II of that Schedule, the text in French shall prevail ".

    Section 4 of the Act declares that the limitations on liability in Article 22
    of the amended Convention are to apply; and section 4 extends to a carrier's
    servant or agent the time limit of two years set by Article 29 of the
    Convention (as I shall hereafter call the amended Convention) for bringing
    an action for damages against a carrier.

    The scheme of the Convention is simple and sensible, being designed to
    avoid costly litigation, to protect the rights of the users of air carriage, and
    to set reasonable limits upon the liabilities of the carrier. As this appeal
    relates only to the provisions of the Convention dealing with damage to
    baggage or cargo, I will refer only to them. The carrier's liabilities are
    strict. He is liable if the occurrence which caused the damage took place
    during the carriage, Article 18(1). He is liable for damage caused by delay:
    Article 19. Article 20 gives him a defence if he can prove—usually an
    impossible task—" 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 makes available a
    defence (in whole or in part) of contributory negligence. Article 22, one
    of the critically important provisions of the Convention, limits the carrier's
    liability. Sub-paragraph 2(b) of this Article is notable because it contains
    the only reference in the Convention to a partial loss of contents. It is
    in these terms:

    " 2(b) In the case of loss, damage or delay of part of registered
    " baggage or cargo, or of any object contained therein, the weight to
    " be taken into consideration in determining the amount to which the
    " carrier's liability is limited shall be only the total weight of the
    " package or packages concerned. Nevertheless, when the loss,
    " damage or delay of a part of the registered baggage or cargo, or of
    " an object contained therein, affects the value of other packages
    " covered by the same baggage check or the same air waybill, the
    " total weight of such package or packages shall also be taken into
    " consideration in determining the limit of liability."

    Article 25 excludes the Article 22 limits of liability if the damage was caused
    intentionally or recklessly. Article 26 provides certain safeguards for the
    carrier. Since it is central to this appeal, I set it out in full: —

    " Article 26 (1) Receipt by the person entitled to delivery of baggage
    " or cargo without complaint is prima facie evidence that the same
    " has been delivered in good condition and in accordance with the
    " document of carriage.

    " (2) In the case of damage, the person entitled to delivery must
    " complain to the carrier forthwith after the discovery of the damage,
    " and, at the latest within seven days from the date of receipt in the
    " case of baggage and fourteen days from the date of receipt in the
    " case of cargo. In the case of delay the complaint must be made at
    " the latest within twenty-one days from the date on which the baggage
    " or cargo have been placed at his disposal.

    " (3) Every complaint must be made in writing upon the document
    " of carriage or by separate notice in writing despatched within the
    " times aforesaid.

    " (4) Failing complaint within the times aforesaid, no action shall
    " lie against the carrier, save in the case of fraud on his part".

    Article 29 provides that the right to damages shall be extinguished, if action
    is not brought with two years; and Article 36 provides (in the same terms
    as in the original Convention) that the language of the Convention is French.

    19

    The broad approach of our courts to the interpretation of an international
    convention incorporated into our law is well settled. The international
    currency of the convention must be respected, as also its international
    purpose. The convention should be construed "on broad principles of
    " general acceptation ". This approach was formulated by Lord Macmillan
    in Stag Line Ltd. v. Foscolo, Mango & Co. [1932] A.C. 328, 350; it was
    adopted by this House in the recent case of Buchanan & Co. v. Babco Ltd.
    [11978] A.C. 141.

    The implications of this approach remain, however, to be worked out by
    our courts. Some can be explored in this appeal: but it would be idle
    to pretend that all can be foreseen. Our courts will have to develop their
    jurisprudence in company with the courts of other countries from case to
    case—a course of action by no means unfamiliar to common law judges. I
    propose, therefore, to consider only the implications and difficulties which
    arise in the instant case, and to direct myself broadly along the lines
    indicated by Article 32 of the Vienna Convention.

    First, the problem of the French text. Being scheduled to the statute, it is
    part of our law. Further, in the event of inconsistency, it shall, as a matter
    of law, prevail over the English text. It is, therefore, the duty of the
    court to have regard to it. We may not take refuge in our adversarial
    process, paying regard only to the English text, unless and until one or
    other of the parties leads evidence to establish an inconsistency with the
    French. We are to take judicial notice of the French. We have to form a
    view as to its meaning. Given our insular isolation from foreign languages,
    even French, and being unable to assume that all English judges are familiar
    with the language, how is the court to do its duty? First, the court must
    have recourse to the English text. It is, after all, the meaning which
    Parliament believes the French to have. It is an enacted translation,
    though not binding in law because Parliament has recognised the possibility
    of inconsistency and has laid down how that difficulty is to be resolved.
    Secondly, as with the English language, so also with the French, the court
    may have recourse to dictionaries in its search for a meaning. Thirdly, the
    court may receive expert evidence directed not to the questions of law
    which arise in interpreting the convention, but to the meaning, or possible
    meanings (for there will often be more than one), of the French. It will
    be for the court, not the expert, to choose the meaning which it considers
    should be given to the words in issue. The same problem arises frequently
    with the English language, though here the court relies on its own knowledge
    of the language supplemented by dictionaries or other written evidence of
    usage. At the end of the day, the court, applying legal principles of
    interpretation, selects the meaning which it believes the law requires.

    I come now to consider to what aids our courts may have recourse in
    interpreting an international convention. It matters not how the convention
    has entered into our law. Once it is part of our law, its international
    character must be respected. The point made by Lord Macmillan in the
    Stag Line case (supra, p.350) is to be borne in mind. Rules contained in an
    international convention are the outcome of an international conference; if,
    as in the present case, they operate within the field of private law, they will
    come under the consideration of foreign courts; and uniformity is the
    purpose to be served by most international conventions, and we know
    that unification of the rules relating to international air carriage is the
    object of the Warsaw Convention. It follows that our judges should be
    able to have recourse to the same aids to interpretation as their brother
    judges in the other contracting states. The mischief of any other view
    is illustrated by the instant case. To deny them this assistance would be
    a damaging blow to the unification of the rules which was the object of
    signing and then enacting the convention. Moreover, the ability of our
    judges to fulfil the purpose of the enactment would be restricted, and the
    persuasive authority of their judgments in the jurisdictions of the other
    contracting states would be diminished.

    20

    We know that in the great majority of the contracting states the
    legislative history, the " travaux preparatoires ", the international case law
    C la jurisprudence'), and the writings of jurists ('la doctrine'), would be
    admissible as aids to the interpretation of the convention. We know also
    that such sources would be used in the practice of public international law.
    They should, therefore, also be admissible in our courts: but they are to be
    used as aids only.

    Aids are not a substitute for the terms of a convention: nor is their use
    mandatory. The court has a discretion. The exercise of this discretion is
    the true difficulty raised by the present case. Kerr J. at first instance and
    Geoffrey Lane L.J. in the Court of Appeal plainly thought it was
    unnecessary to have recourse to any aids to interpretation other than the
    words of the convention. Although I disagree with their conclusion, I
    think their initial approach was correct. They looked to the terms of the
    convention as enacted, and concluded that it was clear. I agree with them
    in thinking that the court must first look at the terms of the convention
    as enacted by Parliament. But, if. there be ambiguity or doubt, or if a
    literal construction appears to conflict with the purpose of the convention,
    the court must then, in my judgment, have recourse to such aids as are
    admissible and appear to it to be not only relevant but helpful on the
    point (or points) under consideration. Mere marginal relevance will not
    suffice: the aid (or aids) must have weight as well. A great deal of relevant
    material will fail to meet these criteria. Working papers of delegates to the
    conference, or memoranda submitted by delegates for consideration by the
    conference, though relevant, will seldom be helpful: but an agreed
    conference minute of the understanding upon the basis of which the draft
    of an article of the convention was accepted may well be of great value.
    And I agree with Kerr J. that it would be useful if such conferences could
    identify,—perhaps even in the convention, documents to which reference
    may be made in interpreting the convention.

    The same considerations apply to the international case law and the
    writings of jurists. The decision of a supreme court, or the opinion of a
    court of cassation, will carry great weight: the decision of an inferior
    court will not ordinarily do so, The eminence, the experience, and the
    reputation of a jurist will be of importance in determining whether, and, if
    so, to what extent the court should rely on his opinion.

    Nevertheless the decision whether to resort to these aids, and the weight
    to be attached to them, is for the court. However, the court's discretion
    has an unusual feature. It is applied not to a factual situation but to a
    choice of sources for help in interpreting an enactment. It operates in a
    purely legal field. An appellate court is not, therefore, bound by the lower
    court's selection of aids, but must make its own choice, if it thinks recourse
    to aids is necessary. This legal process is not unlike the use made by our
    courts of antecedent case law, though it lacks the inhibitions of any doctrine
    of precedent. To those who would say that there is a risk of our courts
    becoming burdened with an intolerable load, if this material is to be
    available, I would reply that the remedy lies with the court. It need look
    at no more than it thinks necessary.

    I now apply these criteria to the present case. First, I look at the terms
    of the Convention. The two texts of Article 26(2) are not inconsistent.
    Their literal construction suggests, in the absence of indications to the
    contrary, that " damage " or " avarie " is limited to physical harm or injury.
    But this appears, for the reasons which my noble and learned friend has
    developed and which I accept, to be inconsistent with the purpose of
    Article 26. Moreover, it is possible, linguistically, to construe " damage ",
    or " avarie ", as covering not only damage to, but partial loss of contents
    of, baggage or cargo; for—a common feature of language in a complex
    society—each word can, and does, take a different shade of meaning from
    its context. Which construction is to be accepted? At this stage, it is
    helpful to have regard to the aids which the courts of other contracting

    21

    states would use in ascertaining the meaning of "damage" or "avarie"
    in the context of the Article. The minutes of the conference of 1955, the
    outcome of which was the convention enacted by the Act of 1961, suggest
    that " damage " in the context of the Article was intended to cover partial
    loss of contents. These minutes, it should be noted, were published in 1956,
    not only in Montreal (the headquarters of the International Civil Aviation
    Organisation) but also by HMSO in London: and, probably, elsewhere as
    well. They are in no way secret. But they are not conclusive. Further,
    the weight of the international case law and of the writings of jurists supports
    the same conclusion. For all these reasons, therefore, i.e. the commercial
    sense of such an interpretation, the context (including in particular Article
    22(2)(b) of the Convention) the minutes of the conference, the case law
    and the writings of jurists, I conclude that in Article 26(2) of the Convention
    damage to baggage includes partial loss of its contents. Unless, therefore,
    complaint of the loss be made within the time limited by the Article, no
    action lies against the carrier.

    Upon the subsidiary point that the respondent had given notice of his
    complaint of partial loss of the contents of his baggage within the time
    limit set by Article 26(2), I agree with Kerr J. He plainly had not.

    I would, therefore, allow the carrier's appeal.

    Lord Roskill

    MY LORDS,

    In common with all your Lordships I have reached the conclusion that
    this appeal should be allowed. I add some observations of my own because
    the issues raised by this appeal have been widely and ably argued before
    your Lordships' House. The sum involved is trivial, namely, £16.50 and
    it is the insurers of the respondent, Mr. Fothergill, and not Mr. Fothergill
    himself who in truth are concerned on the plaintiff's side. Mr. Fothergill,
    like other prudent passengers by air, had insured his luggage on the relevant
    flight, from Rome to Luton, on the 13th May 1975. His claim, arising
    from his undoubted loss, has been properly met by those insurers. They,
    in their turn, seek to recover from the airline, or more accurately, from the
    airline's insurers. Thus is issue joined in order to obtain the decision of
    your Lordships' House upon which set of insurers Mr. Fothergill's loss
    should fall. Both the learned judge, Kerr J., and the Court of Appeal
    have held that that loss should fall upon the airline. But the Court of
    Appeal though unanimous in their conclusion were far from unanimous
    in their reasons. Browne and Lane L.JJ. in substance agreed with Kerr J.
    on the main issue and for the same reasons as the learned judge. But Lord
    Denning, M. R., reached his conclusion by a different route.

    My Lords, your Lordships have to determine the true construction of
    Article 26(2) of the Warsaw Convention, as amended at The Hague, both
    the English and French texts of which are scheduled to the Carriage by
    Air Act 1961. But, uniquely so far as my own experience goes, that Act
    by section 2(1) provides that if there be any inconsistency between the
    English and French texts, the text in French shall prevail. Not the least
    important of the tasks before your Lordships' House, is to determine how
    the courts of this country should approach the novel question of the
    construction of a United Kingdom statute designed to give effect to an
    international convention, but which expressly enjoins the court concerned
    to give preference to a text in a language other than that of that court, a
    language with which the judge or judges of that court may or may not be
    familiar.

    My Lords, the policy of our courts in relation to problems of this kind
    has evolved gradually over the last sixty years or so. The making of rules
    designed to secure by international convention uniformity of contracts of

    22

    carriage is, I believe, a development of this century and first arose in
    connection with contracts of carriage by sea. During the nineteenth century
    British shipowners were free to impose, and did impose, upon those who
    entrusted their goods to them for carriage by sea exemptive conditions
    highly beneficial to those shipowners and their insurers. The laws of other
    countries, notably of the United States of America, were less well disposed
    to their shipowning nationals. Different countries at different times legislated
    in relation to this matter and other connected topics in different ways.

    One of the earliest attempts to secure uniformity of rules of law regarding
    maritime matters, was successfully achieved by the Brussels Convention of
    1910, unifying certain rules of law in regard to collisions at sea and salvage.
    But when Parliament gave statutory effect to those Conventions by the
    Maritime Conventions Act 1911, that Act, while expressly referring to those
    two Conventions in its preamble, and implicitly, of course, by its very
    title, not only did not schedule the texts of those Conventions to the statute,
    but provided that that statute should be construed " as one with the
    Merchant Shipping Acts 1894-1907 ", which were purely domestic legislation.

    So far as I have been able to trace the first occasion upon which any
    Convention text was scheduled to a United Kingdom statute was in the
    Carriage of Goods by Sea Act 1924. It is sometimes overlooked that the
    rules scheduled to that Act were those contained in a draft Convention as
    amended—see the preamble to the Act—that Act having received the
    Royal Assent on the 1st August 1924, and the final Convention not having
    been signed until the 25th August 1924. The official text both of the
    draft Convention as amended and of the final Convention, was French,
    and the two texts are not identical. Thus the English text of the rules
    scheduled to the Act is but a translation from the French text of the draft
    Convention. It is not, unlike the English text of the Warsaw Convention
    in Part I of the First Schedule to the 1961 Act, an authentic English text
    of the draft Convention and still less it is the authentic English text of the
    final Convention.

    My Lords, it was not long before problems of interpretation of The
    Hague rules arose. What was meant by the phrase " management of the
    ship " in Article IV 2(a)'l How was the word " or " to be construed in
    Article IV 2(q) in the context of " or without the fault or neglect of the
    agents or servants of the carrier"—disjunctively or conjunctively? In
    Hourani v. T. & J. Harrison (1927) 32 Com. Cas. 305, the Court of Appeal
    had no difficulty in construing the word " or " as " and ", but neither they
    nor Wright J., as he then was, in Gosse Millard Ltd. v. Canadian Govern-
    ment Merchant Marine Ltd.
    [1927] 2 K.B. 433 at 435, ever thought of
    looking at the French text of the draft Convention, which when one looks
    at it to-day one might be forgiven for thinking afforded an easy guide to
    the same answer as that at which those courts arrived as a matter of
    construction, according to ordinary English principles. Indeed, when the
    Gosse Millard case reached your Lordships' House [1929] A.C. 223, their
    Lordships construed the phrase " management of the ship " in accordance
    with all the antecedent English precedents. Viscount Sumner, at pp. 236-7,
    while accepting that these words appeared in an international convention,
    assumed that they were intended to be used in the judicially established
    sense, and the House without doubt construed The Hague rules in the
    same manner as it would have construed any ordinary United Kingdom
    statute.

    A slightly more liberal approach is, however, to be found in the speeches
    in your Lordships' House in Stag Line Ltd. v. Foscolo, Mango & Co.
    [1932] A.C. 328. Your Lordships have referred to the well-known passage
    in the speech of Lord Macmillan at p. 350, and I will not again quote
    what he said. I would, however, add a reference to the speech of Lord
    Atkin on the same point at pp. 342-3 of the report. But the House,
    notwithstanding that more liberal approach in theory, in practice applied
    the antecedent English decisions to the construction of Article IV Rule 4
    of The Hague rules.

    23

    There matters remained for nearly a quarter of a century. It is notorious
    that in this period any attempts made by counsel to invite attention to
    the French text of the draft Convention in order to construe the Rules
    scheduled to the English Act, were firmly discouraged by the courts and
    sometimes even made a matter of judicial reproof.

    However, hi Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd. [1954]
    2 Q.B. 402, Devlin J., as he then was, had to construe Article 1(b) of the
    Rules. Having stated his conclusion at p. 421 of the report he added:

    " I base this conclusion upon the sense of the paragraph as a whole
    " as well as upon its punctuation. If there is any doubt the French
    " text . . . makes it quite clear. Having regard to the preamble to
    " the Act and the fact that the French text is the only authoritative
    " version of the Convention, I think, notwithstanding Mr. Megaw's
    " objection, that it is permissible to look at it. I agree that it is not
    " conclusive, but it may help to solve an ambiguity if there be one.
    " I agree also that unless the court is assisted by a French lawyer
    " it should be looked at cautiously; but the appreciation of this
    " particular point needs no more French than every schoolboy knows
    " and I think it would be pedantic to ignore it."

    Thus to look at the French text was for the first time regarded as permissible
    in an English court.

    My Lords, it will have been observed that the cases to which I have
    referred so far all arise from carriage by sea. At the time of all those
    cases save Pyrene, air carriage whether of goods or passengers was in its
    infancy. But as air transport has developed, maritime law was an obvious
    source from which solutions of the novel problems of air transport law
    might be derived, and one has only to glance at some of the provisions
    of the Warsaw Convention to see whence their philosophy comes. It would
    not, therefore, be surprising to find words used in the Convention whether
    one has regard to the French text or to the English text, or to both in the
    same sense as that in which those words had long been used in maritime
    law.

    But the change foreshadowed in Pyrene was not limited to the approach
    of the courts in construing The Hague rules. In Salomon v. Commissioners
    of Customs & Excise
    [1967] 2 Q.B. 116, the Court of Appeal was concerned
    with a problem of valuation under the Customs & Excise Act 1952. The
    relevant provisions had been enacted in fulfilment of an antecedent
    convention entered into in 1950. The Court of Appeal had no difficulty in
    holding that it was proper to look at the convention even though there
    was no express reference to it in the statute in order to determine the true
    meaning of the statute if that meaning were not clear from its own
    language. I refer to but do not quote from the judgment of my noble and
    learned friend, Lord Diplock, then Lord Justice Diplock, at pages 142 to
    145 of that report.

    In Post Office v. Estuary Radio Ltd. [1968] 2 K.B. 740, my noble and
    learned friend giving the judgment of the Court of Appeal followed the
    previous decision in the Salomon case and once again the Court of Appeal
    found no difficulty in looking at the relevant convention, even though it was
    not referred to in the relevant Order in Council.

    By the time, some ten years later, when your Lordships had to consider
    the problem once more in James Buchanan & Co. Ltd. v. Babco Forwarding
    & Shipping (U.K.) Ltd.
    [1970] A.C. 141, my noble and learned friend Lord
    Wilberforce at page 152 in agreement with your Lordships had no difficulty
    in holding that it was legitimate to look at the French text of the Convention
    scheduled to the Carriage of Goods by Road Act 1965 if the English text
    were ambiguous.

    That decision of your Lordships' House shows how changed the position
    had become at the end of the sixty year period to which I have referred from
    what it was at the beginning. In my judgment it is now clear law that where

    24

    the source of the legislation in question is not the ordinary parliamentary
    process, but is an international treaty or convention and the statute is
    designed to give effect to that treaty or convention, it is legitimate to look
    at that source in order to resolve ambiguities in the legislation which has
    made those treaty or convention provisions part of the ordinary municipal
    law of this country.

    But in the present case the relevant statutory enactment goes further. It
    enjoins the court in the event of inconsistency between the English and
    French text to allow the French text to prevail. How then is the court to
    perform its task once an issue of an alleged inconsistency arises? It may
    be that reference to the French text will if properly understood shed clear
    light upon the meaning of the English text. Clearly on the authorities as
    they now stand, that is a legitimate approach to the construction of the
    English text where any doubt arises as to the meaning of the latter text.
    In such a case there will be no inconsistency. But in the present case the
    alleged inconsistency is between the English word " damage" where it
    appears in the relevant place in Article 26(2) of the English text, and the
    French word " avarie" in the corresponding place in the French text of
    that article. In order to determine whether there is an inconsistency, the
    court must be in a position to ascertain the meaning of both words.

    " Damage " is an ordinary English word susceptible of several meanings
    according to the precise context in which the word is used. " Avarie " is
    a French word also susceptible of several meanings according to its context.
    An English court will construe the word " damage " as it will construe any
    other word which it is required to interpret—according to the context in
    which the word is used. But it is likely that the court will require extrinsic
    help in construing the French word. Like my noble and learned friend,
    Lord Wilberforce, I decline to lay down any precise rules whence that help
    should come. If the judge concerned is possessed of some knowledge of
    the French language, it will be pedantic and perhaps also intellectually
    impossible to deny him the right to use that which he knows perfectly well.
    Once both French and Latin were languages in current use in our courts.
    Latin phrases still make a frequent appearance in our jurisprudence and
    a judge is perfectly free to use such knowledge of Latin as he may still
    possess in order to interpret and apply such a phrase. Why then should
    a different rule be applied in the case of a modern as opposed to an
    ancient language? Of course the same problem could arise hereafter with
    authentic texts of conventions in languages in less frequent use and
    therefore less well known in Western Europe than for example French or
    German. In such a case a judge will be likely to require more help than
    in the case of those two languages. But a judge will usually be unlikely
    to be willing to rely solely upon his own knowledge of the relevant language
    even if he be as well versed in that language as the learned trial judge
    concerned in the present case. Such a judge can always have recourse to
    dictionaries. He can have regard to the writings of learned writers upon
    the relevant topic. He can have regard to judicial decisions of the courts
    of other countries concerned with the same problem. Such sources are
    clearly not exhaustive. I doubt whether in a case such as the present the
    evidence of an ordinary interpreter would greatly assist, though such
    evidence might be essential if the language were unknown or little known
    to the judge. But if for example in the present case oral evidence had been
    called from one or more of those learned writers extracts from whose written
    work is referred to in various of your Lordships' speeches, I do not doubt
    that Kerr J. and indeed the Court of Appeal would have derived much
    help from their evidence. I think it was evidence of this nature that Lane
    L.J. had in mind in the opening paragraph of his judgment at [1979] 2
    W.L.R. at page 506. It would obviously be of greater help if the expert
    were bilingual though I would not regard that as essential since primarily
    his evidence would be directed to the meaning of the French text. Clearly
    such an expert must not tell the court how he thinks the court should
    decide the case, but he could give great assistance as to what he thought
    the true meaning of the relevant word was in the French language and

    25

    how the sense of that meaning compared with the sense of the corresponding
    word used in the English text—the latter only of course if he were familiar
    with the English language.

    In passing I would observe that in cases where an issue of inconsistency
    is said to arise, there must be no question of one party taking the other by
    surprise. The meaning of a word in a foreign language is at least in most
    cases a question of fact and I would have thought ought to be specifically
    pleaded by the party asserting some special meaning. But whether or not
    that be correct, clearly notice of any intention to raise such a point must
    be given to the other side so that each side can come to trial forewarned
    and forearmed with the evidence whether written or oral with which each
    proposes to assist the court.

    If one has regard only to the English text of Article 26(2) and construes
    the relevant word " damage " in that article upon strict English principles
    of construction, I would be disposed to agree with Kerr J. and with Browne
    and Lane L.JJ. that " damage " is used in antithesis to " partial loss " so
    that the former word does not include the latter expression, though with
    respect I do not think it right to construe " damage " in this context by
    reference to such English authorities as the well known line of ticket
    cases.

    But once the issue of inconsistency is raised, in my view no concluded
    view as to the meaning of the word in the English text can or should be
    reached without first considering the meaning of the word " avarie " in the
    French text. I unreservedly accept Mr. Staughton's warning against the
    dangers of construing " avarie " in the French text as equivalent to " partial
    " loss " because in an English marine insurance context " average" is a
    synonym for " partial loss". Compare sections 64, 66 and 76 of and
    Rule 13 of the Rules of Construction in the First Schedule to the Marine
    Insurance Act 1906 and the statement of Lord Esher M.R. in Price & Co.
    v. A.I Ships' Small Damage Insurance Association (1889) 22 Q.B.D. 580
    at 584 that:

    "' Average' [in the context of marine insurance] .... has a well
    " established mercantile significance. It means a partial as distinguished
    " from a total loss."

    On the other hand " partial loss" is a possible meaning of the word
    " avarie" in the context of maritime law, and I have already mentioned
    that maritime law is a source of much modern air law. Your Lordships
    were referred to a number of decisions of foreign courts. The industry of
    counsel and of the appellants' solicitors brought to the attention of your
    Lordships' House many such cases which had not been referred to in the
    courts below. Like other of your Lordships, I find little help in them for
    they are, naturally enough, not always consistent with each other and on
    occasions each learned counsel claimed a particular decision to be in his
    favour. On the other hand like my noble and learned friends, I find the
    writings of the distinguished writers to whose works we were referred both
    in original and in translation most persuasive. Those writings are detailed
    in the speeches of my noble and learned friends, Lord Wilberforce and
    Lord Fraser of Tullybelton, and I shall not repeat what they have quoted.
    I think, like my noble and learned friends, that those writings point strongly
    to the conclusion which all your Lordships have reached, that " avarie"
    in this context includes " partial loss ". Either therefore " damage " in the
    English text must be construed so as to include " partial loss ", or there is
    an inconsistency and the French text as I would interpret it in the light of
    those writings must prevail. I do not think it matters by which route that
    conclusion is reached.

    Clearly, therefore, Mr. Fothergill should have lodged his claim within
    seven days. He did not do so.

    This conclusion, as my noble and learned friend Lord Wilberforce has
    pointed out, makes it unnecessary to deal with the question of travaux
    preparatoires.
    But like all your Lordships I think this is a matter upon

    26

    which your Lordships' House should now express a view in the light of the
    full arguments to which your Lordships have listened. The question is dealt
    with at length in their speeches by my noble and learned friends, Lord
    Wilberforce and Lord Diplock and Lord Scarman. I agree with them and
    only add a word on one point since my noble and learned friend Lord
    Fraser of Tullybelton takes a different view from that taken by the majority
    of your Lordships. I see, if I may respectfully say so, the force of my
    noble and learned friend's observation with the difficulties into which the
    use of travaux preparatoires may put the private citizen who wishes to
    bring an action in relation to such matters as those involved in the present
    case and who has not got and perhaps may not be able to get easy access
    to such highly specialised knowledge as will be contained in the documents
    which your Lordships are considering. But in practice I venture to question
    whether these disputes are likely to arise save between bodies such as
    cargo underwriters, airlines and the like, who will have been represented at
    the negotiations leading to a particular Convention and who will be fully
    equipped with the necessary information. That is certainly the position in
    the present case.

    Mr. Fothergill did not give the relevant notice within seven days. I think
    in agreement with Kerr J. that his claim must fail because of that failure for
    the reasons which the learned judge gave, which I respectfully and entirely
    adopt. I regret that I cannot agree with the learned Master of the Rolls on
    this issue, nor with his use of the 1979 Act in order to construe the 1961
    Act. I would therefore allow the appellants' appeal and order judgment to
    be entered to the defendants.

    312382 Dd 8013619 160 7/80


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