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Cite as: [1997] All ER 193, [1997] 2 WLR 26, 1997 SC (HL) 26, [1997] AC 430, [1996] UKHL 5

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Abnett v. British Airways Plc (Scotland) [1996] UKHL 5 (12th December, 1996)

HOUSE OF LORDS

  Lord Browne-Wilkinson   Lord Jauncey of Tullichettle   Lord Mustill
  Lord Steyn   Lord Hope of Craighead

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

ABNETT (KNOWN AS SYKES)
(APPELLANT)


v.


BRITISH AIRWAYS PLC
(RESPONDENTS) (SCOTLAND)

SIDHU AND OTHERS (A.P.)
(APPELLANTS)


v.


BRITISH AIRWAYS PLC
(RESPONDENTS)


ON 12 DECEMBER 1996


LORD BROWNE-WILKINSON


My Lords,

    For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I would dismiss both these appeals.



LORD JAUNCEY OF TULLICHETTLE


My Lords,

    For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I too would dismiss both these appeals.



LORD MUSTILL


My Lords,

    For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I too would dismiss both these appeals.



LORD STEYN


My Lords,

    For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I would dismiss both these appeals.



LORD HOPE OF CRAIGHEAD


My Lords,

    The question in these two appeals is whether the Warsaw Convention as amended at The Hague, 1955, as set out in the Schedule 1 to the Carriage by Air Act 1961, provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.

    In both cases claims were made against the respondents, British Airways Plc., by passengers who had been travelling on a scheduled international flight from the United Kingdom to Malaysia via Kuwait. The flight left London Heathrow for Kuala Lumpur on 1 August 1990. It landed in Kuwait for refuelling on 2 August 1990, about five hours after Iraqi forces had begun to invade Kuwait at the commencement of what became known as the Gulf War. The passengers and crew were all taken prisoner by the Iraqis. They were detained initially at Kuwait Airport, then at Kuwait City and thereafter in Baghdad. The appellants, who were subsequently released and returned to the United Kingdom, claimed damages against the respondents for the consequences of their captivity. Their claims for personal injury were made at common law, as it was accepted that they had no remedy in this regard under article 17 of the Convention.

    Mrs. Judith Helen Abnett, to whom I shall refer as "the pursuer," raised her action in the Court of Session in Scotland. She was resident in England where the respondent's principal place of business is situated, and she had purchased her ticket there. But the respondents also have a place of business in Edinburgh, which the pursuer contended was sufficient to confer jurisdiction on the Scottish courts at common law. She based her claim on article 19 of the Convention under which the carrier is liable for damage occasioned by delay and, alternatively, at common law for breach of an implied condition of the contract that the respondents would take reasonable care for her safety. When the case came before the Lord Ordinary, Lord Marnoch, for debate on the procedure roll he was invited to dismiss the action on various grounds. One of these was that the Scottish courts had no jurisdiction, having regard to article 28 of the Convention. After a careful review of the wording of that article and of various authorities which were cited to him from the United States of America, France and Nigeria, he held that the Scottish courts did have jurisdiction and no appeal has been taken against his decision on this point. He also held that the pursuer's case for damage occasioned by delay under article 19 of the Convention was irrelevant, and that the Convention excluded recourse to any common law remedy by a passenger who suffered injury in the course of or arising out of an international flight. On 20 December 1993 he repelled the respondents' plea in law to the jurisdiction of the Court of Session, but he sustained their second and third pleas in law and dismissed the action as irrelevant, 1996 S.L.T. 529. The pursuer reclaimed on the single question as to whether her claim at common law had been excluded by the Convention. On 28 April 1995 an Extra Division (Lord Allanbridge, Lord Mayfield and Lord Clyde), who had the advantage of the judgment of the Court of Appeal in the English action which supported the view which had been taken by Lord Marnoch, refused her reclaiming motion: 1996 S.L.T. 529, 538-547. The pursuer has now appealed against this decision to your Lordships' House.

    Miss Kiran Sidhu, Miss Harjinder Sidhu and Mr. Ravinder Sidhu, to whom I shall refer as "the plaintiffs," raised their action in the Brentford County Court. In their particulars of claim they alleged that the loss and damage which they had suffered was caused by the respondent's negligence. Their proceedings were issued on 30 July 1993, which was outside the two year time limit allowed by article 29 of the Convention but inside the three year time limit which was otherwise applicable. No claim was made by them under any of the provisions of the Convention. The respondents applied for an order that their action be dismissed as it was time barred by article 29. When their application came before Judge Marcus Edwards they also submitted that the Convention provided the exclusive remedy in respect of claims for damages arising out of international carriage by air of persons and baggage for reward. On 28 February 1994 the judge, who was referred to Lord Marnoch's decision in the pursuer's case, held for the same reasons as those given by Lord Marnoch that the plaintiffs had no rights save under the Convention. He also held that their right to damages, if any, was extinguished by article 29 of the Convention two years after 2 August 1990, and he dismissed their claims. On 27 January 1995 the Court of Appeal (Leggatt, Swinton Thomas and Otton L.JJ.) (unreported), Court of Appeal (Civil Division) Transcript No. of 1995, dismissed the plaintiffs' appeal against the order which had been made by Judge Marcus Edwards. The plaintiffs' appeal to this House against the order made by the Court of Appeal was heard together with the pursuer's appeal against the interlocutor of the Extra Division of the Court of Session.

THE FACTS

    The pursuer and the plaintiffs were all fare paying passengers on the same flight, BA.149, which left London Heathrow for Kuala Lumpur at about 6.15 p.m. on 1 August 1990. The flight was scheduled to travel to Kuala Lumpur by way of Kuwait and Madras. It was due to arrive at Kuwait in the early hours of the following day, 2 August 1990. According to the pursuer's pleadings in the Scottish action, relations between Iraq and Kuwait had been deteriorating for some days prior to the departure of the flight from Heathrow. She avers that the respondents knew or ought to have known that the passengers would be at severe risk if the aircraft were to land in Kuwait after hostilities had been commenced against Kuwait by Iraq. The same point is made by the plaintiffs in their particulars of claim, where they refer to the respondents' negligence in landing their aeroplane in Kuwait when they knew or ought to have known of the hostile situation between Iraq and Kuwait and the possibility that war might break out and Kuwait be invaded by Iraq. In the event the invasion of Kuwait by Iraq began at about 11.15 p.m. on 1 August 1990. About four hours later, at about 3.00 a.m. on 2 August 1990, the respondents' aircraft landed at Kuwait airport for refuelling. The passengers disembarked into the transit lounge at the airport terminal. While they were in the terminal the airport was attacked by Iraqi aircraft and taken over by Iraqi soldiers. The airport was closed, and the passengers and crew of flight BA.149 were detained by the Iraqis and later removed to Baghdad.

    The pursuer avers that she was detained by Iraqi forces for a period of about a month. She claims to have suffered psychological injury due to the stress resulting from her captivity and the pain of separation from her family. She also claims that she was off work on a number of occasions as a result of the psychological consequences. She claims damages of £100,000 on the ground that the respondents were in breach of an implied condition of her contract with them that they would take reasonable care for the safety of their passengers, in respect that they allowed their aircraft to land at Kuwait when they knew or ought to have known that the passengers were exposed to risk due to the invasion. Her alternative claim for damages caused by delay under article 19 of the Convention was, as I have said, held by Lord Marnoch to be irrelevant and no further issue arises on that point. She made no claim against the respondents under article 17 of the Convention.

    The plaintiffs state that they were detained by the Iraqi forces until about 21 August 1990. In their particulars of injuries they allege that they suffered physical and psychological injuries. These included mental injury comprising stress and anxiety and possible permanent psychological damage as a result, and bodily injury comprising loss of weight, eczema and excessive menstrual bleeding. They also claim for loss of baggage amounting to £2,562.93 as special damages. Their action has been based entirely on negligence at common law. The negligence relied on in their particulars falls under three heads: landing their aircraft in Kuwait when the respondents knew or ought to have known of the hostile situation between Kuwait and Iraq and the possibility that war might break out and Kuwait be invaded; flying their aircraft into a war zone or war situation; and failing to divert their aircraft to a safer airport for refuelling when they knew or ought to have known that Kuwait airport was at risk of being attacked or invaded. They make no claim against the respondents under article 17 of the Convention.

THE ISSUE

    Although there are some differences of detail between the two actions - the pursuer claims only for psychological injury, while the plaintiffs claim also for bodily injury and loss of baggage, and the pursuer's claim is for breach of contract while the plaintiffs' claim is in negligence - the issue of law which arises in both of these appeals is the same. It is whether the Warsaw Convention as amended at The Hague, 1955 provides the exclusive cause of action and remedy in respect of claims for loss, injury and damage sustained in the course of, or arising out of, international carriage by air. If the answer to that question is in the affirmative, it is accepted that the claims which have been brought in each case for damages at common law for personal injury must be dismissed. It is not disputed that the plaintiffs' claim for loss of baggage must be dismissed also, on the additional ground that it was brought outwith the period of two years referred to in article 29 of the Convention after which the right to damages under the Convention is extinguished. It is common ground, for reasons to which I shall return later, that neither the pursuer nor the plaintiffs have any claim against the respondents under article 17 of the Convention in respect of their personal injuries.

THE PROVISIONS OF THE CONVENTION

    I shall have something to say later about the background to the Convention. At this stage it is necessary to identify the statutory provisions which are relevant to this case. These are to be found in the Carriage by Air Act 1961, by which effect was given to the Convention concerning international carriage by air known as "The Warsaw Convention as Amended at The Hague, 1955," so that it might have the force of law in the United Kingdom in relation to any carriage by air to which the Convention applied, and the rules contained in the Convention were enabled to be applied, with or without modification, in other cases and in particular to non-international carriage by air not governed by the Convention. Force of law to the Convention in regard to international carriage by air is given by section 1(1) of the Act read together with Schedule 1, in which the provisions of the Convention are set out. Part I of the Schedule sets out the English text of the Convention, and Part II sets out the French text. Section 1(2) provides that, if there is an inconsistency between the text in English and Part I of Schedule 1 and the text in French in Part II of that Schedule, the text in French shall prevail.

    The headnote to the English text in Part I of Schedule 1 describes the Convention as being "for the Unification of Certain Rules relating to International Carriage by Air." There then follow five chapters, headed respectively Chapter I--"Scope--Definitions;" Chapter II--"Documents of Carriage;" Chapter III--"Liability of the Carrier;" Chapter IV--"Provisions Relating to Combined Carriage;" and Chapter V--"General and Final Provisions."

    In Chapter I, article 1(1) is in these terms:

Article 1(2) of this chapter contains a definition of the expression "international carriage" which need not be quoted, as it is common ground that the present case is concerned with international carriage by air because the place of departure and the place of destination were both situated within the territories of High Contracting Parties.

    Among the documents of carriage for which rules are provided by Chapter II is the passenger ticket. Article 3(1) of section 1 of this chapter is in these terms:

    The only other chapter which contains provisions relevant to this case is Chapter III, which is headed "Liability of the Carrier." The articles comprised in this chapter are those numbered from 17 to 30, of which the following is a brief summary. Article 17 is concerned with the carrier's liability for death or injury suffered by a passenger. Article 18 is concerned with the carrier's liability for destruction or loss of or damage to registered baggage or cargo. Article 19 provides that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. These provisions must be read together with article 24, which provides that, in the cases covered by these articles, any action for damages, however founded, can only be brought subject to the conditions and limits set out in the Convention. Article 20 provides: "The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures." Article 21 deals with cases where the damage was caused or contributed to by the injured person's negligence. Article 22 makes provision for the limitation of the liability of the carrier for each passenger and for registered baggage and cargo, and article 23 provides: "Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down by the Convention shall be null and void. . . ." Article 25 provides that these limits of liability shall not apply if the damage results from an act or omission of the carrier, his servants or agents done with intent to cause damage or recklessly. Article 25, 25A, 26 and 27 contain various ancillary provisions. Article 28, which deals with jurisdiction, restricts the places where an action for damages may be brought, and provides that "questions of procedure shall be governed by the law of the court seised of the case." Article 29 provides that the right to damages shall be extinguished if the action is not brought within two years. Lastly, article 30 deals with the case where the carriage is to be performed by various successive carriers.

    As I shall require to examine the wording of articles 17, 18, 23 and 24 more closely at a later stage, it is convenient now to set out the full terms of these articles. They are as follows:

    Article 17:

    Article 18:

Article 23:

Article 24:


 

THE COMPETING ARGUMENTS

    The issue between the parties is confined to a single but important point which depends for its answer on the interpretation of the Convention. Much of the background is common ground. As both cases are being dealt with on a preliminary issue of law, the facts have not been investigated. The respondents made it clear that they were not to be taken as admitting that all the allegations which have been made against them are true. But they were content that the issue of law should be dealt with on the pursuer's pleadings in the Scottish action and on the particulars of claim in the English action. For their part the pursuer and the plaintiffs accept that their claims against the respondents arise out of international carriage by air. Their apprehension by the Iraqis took place in the terminal at Kuwait, but they accept that they were still in the course of international carriage by air at that point because they were still in transit to their ultimate destination in Malaysia. The breaches of duty which they allege all relate to decisions taken while the aircraft was in the air between London and Kuwait. It is, however, also common ground between the parties that neither the pursuer nor the plaintiffs have a claim against the respondents under article 17 of the Convention.

    I do not think that it is necessary to explore the reasons why the view has been taken that article 17 does not provide a remedy in this case. It is sufficient to say that two particular reasons were given for this view in the course of the hearing before the Inner House in the Court of Session. First, it was said that no "accident" causing the damage took place on board the aircraft. Secondly, it was said that the injury sustained by the pursuer - the stress resulting from her captivity and the pain of separation from her family, absence from work and loss of income due to the psychological consequences of the captivity - did not fall within the scope of "bodily injury" for the purposes of article 17. In the English action the plaintiffs conceded in the Court of Appeal that no accident causing damage took place on board the aircraft or in the course of disembarkation. In their case bodily injury is alleged, but it was submitted on their behalf that liability for damage to the person under article 17 only arises in the event of any bodily injury suffered by a passenger and that psychological damage, which was the principal basis for their claim, probably did not come within that category. It was suggested to your Lordships in the course of the argument that the phrase "bodily injury" in article 17 ought now to be construed as including psychological damage, especially if it were shown to have a physiological basis by medical evidence. But that point does not arise for decision in this case and it was not fully argued. I prefer to express no opinion upon it.

    It should be recorded also that all parties were agreed that, if a passenger had a claim under article 17 against the carrier, there was no concurrent common law remedy. It is common ground therefore that a passenger who has a claim for bodily injury caused by an accident which took place on board the aircraft, or in the course of any of the operations of embarking or disembarking, cannot maintain a separate claim at common law for any loss, injury or damage not covered by article 17 of the Convention. That seems to follow inevitably from the provisions of article 24(2), which declares that in the cases covered by article 17 any action of damages, however founded, can only be brought subject to the conditions and limits set by the Convention.

    So the stark issue which is before us in this appeal is whether a passenger who has sustained damage in the course of international carriage by air due to the fault of the carrier, but who has no claim against the carrier under article 17 of the Convention, is left without a remedy.

THE APPROACH TO CONSTRUCTION

    I now turn to the material which we were invited to consider in reaching our decision as to how we should decide this issue. Some of this material is plainly relevant, some of it plainly is not and some of it will require consideration and analysis in order to decide whether it is of any assistance to us in this case. The following catalogue provides the starting point.

(i) THE CARRIAGE BY AIR ACT 1961

    Mr. Webb took us through various provisions in the statute which he said could be relied on as indicating that the intention was that the Convention should provide the exclusive remedy. Similar arguments were considered in the courts below. For my part I do not think that the wording of the statute can assist us one way or the other. What we are concerned with in this case is the meaning to be given to the Convention. This must depend upon the wording and structure of the Convention itself. All that need to be taken from the Act for present purposes is that, in terms of section 1(1), the Convention as set out in Schedule 1 to the Act has the force of law in the United Kingdom in relation to any carriage by air to which the Convention applies; and that, in terms of section 1(2), if there is any inconsistency between the text in English in Part I of Schedule 1 and the text in French in Part II of that Schedule, the text in French shall prevail.

(ii) THE ENGLISH TEXT OF THE CONVENTION

    This plainly is the primary source to which we must turn for a solution to the point raised in this case. It may be convenient, however, to record at this point that all parties were agreed, as they were in the courts below, that the Convention should receive a purposive construction. This point was fully explored in Fothergill v. Monarch Airlines Ltd. [1981] AC 251, where the question at issue arose under article 26(2) of the Convention. It does not need to be elaborated upon in this case. It is now well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country. As Lord Diplock said, at p. 279, one must give a purposive construction to the Convention looked at as a whole. The observations of Greene L.J. in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-76, to which I shall return later, are to the same effect.

(iii)  THE TRAVAUX PRÉPARATOIRES

    Here again the parties were in agreement. Reference was made in the courts below to the negotiating history of the Convention, and in particular to the minutes of the International Conference on Private Aeronautical Law at Warsaw from 4 to 12 October 1929. We also were referred to various passages from these minutes in the course of the argument. The question whether it is legitimate to resort to material of this kind was discussed in Fothergill v. Monarch Airlines Ltd., and it is unnecessary to go over this ground again. It is sufficient to say that cautious use may be made of this material, the availability to the public of which is not in doubt. But it will only be helpful if, after proper analysis, it clearly points to a definite intention on the part of the delegates as to how the point at issue should be resolved.

(iv) DECISIONS BY THE COURTS IN THE UNITED KINGDOM

    The only cases to which we were referred as having any possible bearing on the issue which we have to decide in this case were Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-76 and Gatewhite v. Iberia Lineas Aereas de España S.A. [1990] 1 Q.B. 326. The issue which was raised in Grein v. Imperial Airways Ltd. was a different one from that which arises here. It was whether a passenger who met his death while travelling by aeroplane on a return ticket between London and Antwerp - Belgium not being a High Contracting Party - was engaged on "international carriage" within the meaning of the Convention. But Greene L.J., at pp. 74-76, made some observations about the approach to be taken to the construction of the Convention which are helpful in the present case. The Gatewhite case arose out of a contract for the carriage of goods by air. The question was whether the owner of goods not named as the consignor or consignee on the air waybill was entitled to sue the carrier for damages to the goods while in transit. I shall return to this case later in order to see what help it can give to us in the present case.

(v) DECISIONS BY FOREIGN COURTS

    Much of the discussion in the Court of Session, both in the Outer House before the Lord Ordinary, Lord Marnoch, and in the Extra Division, was taken up with an examination of decisions of various courts in the United States. We were referred to the cases mentioned in the courts below and to several other cases from the same source. We were also referred to a recent decision in the Tribunal de Grande Instance de Paris arising out of the same incident as the claims which are being made in the present case. Parties were agreed that we might have regard to this material for such assistance as it might give. Clearly, much must depend upon the status of each court and of the extent to which the point of issue has been subjected to careful analysis. Material of this kind, where it is found to be of the appropriate standing and quality, may be of some help in pointing towards an interpretation of the Convention which has received general acceptance in other countries. But the value of the material will be reduced if the decisions conflict with each other or if no clear line of approach appears from them after they have been analysed.

(vi) EUROPEAN CONVENTION OF HUMAN RIGHTS

    Mr. Clive Nicholls for the plaintiffs submitted that it would be inconsistent with the obligations of the United Kingdom under various articles of the European Convention of Human Rights if a construction were to be placed on article 17 of the Warsaw Convention which excluded the claim which they were seeking to make in this case. Your Lordships had no hesitation in rejecting that argument. The provisions of the European Convention have no bearing on the interpretation of international conventions such as the Warsaw Convention on carriage by air - and there are many other examples - which are concerned with commerce between countries and which seek, by a process of compromise, to achieve uniformity across international frontiers in the application of trade law.

    It must also be observed that, while some parties to the Warsaw Convention are parties to the European Convention of Human Rights, some - notably the United States of America - are not. We cannot assume that the principles expressed in the European Convention are common to all those countries who are parties to the Warsaw Convention. Thus we would risk introducing an element of distortion into the debate, in conflict with the broad aim of uniformity of interpretation between states, if we were to rely on the European Convention as an aid to the construction of the Warsaw Convention in the present case. In T. v. Secretary of State for the Home Department [1996] 2 WLR 766, 793A, Lord Lloyd of Berwick said that in a case concerning an international convention it was obviously desirable that decisions in different jurisdictions should, so far as possible, be kept in line with each other. As Dicey & Morris, The Conflict of Laws, 12th ed. (1993), p. 9, observe:

(vii) ANALYSIS OF THIS MATERIAL

    It follows from what I have just said that no analysis is required of the 1961 Act or of the European Convention of Human Rights. I turn therefore immediately to the Convention itself, which is the primary source to which we must look for a solution to the question we have to decide.

(aTHE ENGLISH TEXT OF THE CONVENTION

    I can confine myself to the English text, because all parties were agreed that, except in one respect with which I can deal briefly, there was for present purposes no material difference between it and the French text.

    The Convention describes itself as a "Convention for the Unification of Certain Rules relating to International Carriage by Air." The phrase "Unification of Certain Rules" tells us two things. The first, the aim of the Convention is to unify the rules to which it applies. If this aim is to be achieved, exceptions to these rules should not be permitted, except where the Convention itself provides for them. Second, the Convention is concerned with certain rules only, not with all the rules relating to international carriage by air. It does not purport to provide a code which is comprehensive of all the issues that may arise. It is a partial harmonisation, directed to the particular issues with which it deals.

    These issues are identified in the principal chapter headings, which are those to Chapters II, III and IV--"Documents of Carriage," "Liability of the Carrier" and "Provisions Relating to Combined Carriage." Nothing is said in this Convention about the liability of passengers to the carrier, for example. Nor is anything said about the carrier's obligations of insurance, and in particular about compulsory insurance against third party risks. It is clear from the content and structure of the Convention that it is a partial harmonisation only of the rules relating to international carriage by air. That is sufficient to give content to the phrase "Certain Rules." I do not find in that phrase an indication that, in regard to the issues with which the Convention does purport to deal, its provisions were intended to be other than comprehensive.

    The principal search for indications of an intention one way or the other about exclusivity of provision in regard to the carrier's liability must be conducted within the provisions of Chapter III. But before I come to this chapter there are two provisions in the earlier chapters which are worth noting as being of some value. First, Article 1(1) states that the Convention applies to "all international carriage of persons, baggage or cargo performed by aircraft for reward." The word "all" is important, simply because it is so all-embracing. It indicates that the framers of the Convention were looking to solutions, no doubt by a process of adjustment and compromise, which could be regarded as acceptable for universal application in all cases. The other provision is article 3(1)(c), which requires that the ticket to be delivered to the passenger must contain among other things

    This provision was relied on to some extent by Lord Clyde, 1996 S.L.T. 529, 545J. He said that the words used here would seem quite absoluteb - the qualification that the limits apply "in most cases" presumably covering such exceptions as are contained in article 25, which deals with cases where the carrier, his servants or agents have caused intentional damage or acted recklessly. It is here that the French text may be important. The relevant part of the provision is stated there in these terms:

    The word "governs" which is to be found in the English text is an accurate translation of the word "régi" in the French text. But the English version does not follow the French wording precisely - the phrase "peut être régi" is not, as such, reproduced. So on balance I am inclined not to attach significance to this provision, which in any event is dealing only with the wording of a notice on the passenger's ticket and not with the substance of the rules about the carrier's liability.

    Turning to Chapter III itself, the chapter heading expresses its subject matter in the words "Liability of the Carrier." In contrast to the title to the Convention itself, which uses the expression "Certain Rules," we find here a phrase which is unqualified. My understanding of the purpose of this chapter therefore, from what we have seen so far, is that it is designed to set out all the rules relating to the liability of the carrier which are to be applicable to all international carriage of persons, baggage or cargo by air to which the Convention applies.

    Chapter III begins by setting out the three primary rules. These are the rules relating to the carriage of passengers, to the carriage of registered baggage or cargo and to delay in the carriage by air of passengers, baggage or cargo. While article 19 is unqualified - it states simply that the carrier is liable for damage occasioned by delay in the carriage by air - the other two articles are qualified, because the liability which they create applies only in the events described and only if certain other conditions are satisfied: see articles 20 and 21. This, however, is not in itself a reason for regarding these provisions as non-exclusive remedies. One has to look further into the details of the chapter in order to grasp the whole context in which these carefully defined liabilities have been devised.

    Articles 20 and 21 enable the carrier to avoid liability in whole or in part. They contain nothing of significance for present purposes. Article 22 however is important, because it limits the liability of the carrier. It does so in terms which enable the limitation of liability to be applied generally to all cases where the carrier is liable in the carriage of persons and of registered baggage and cargo. Article 22(1) begins simply with the words "In the carriage of persons." Article 22(2)(a) begins with the words "In the carriage of registered baggage and of cargo." The intention which emerges from these words is that, unless he agrees otherwise by special contract - for which provision is made elsewhere in the article - the carrier can be assured that his liability to each passenger and for each package will not exceed the sums stated in the article. This has obvious implications for insurance by the carrier and for the cost of his undertaking as a whole. Article 22(4) makes provision for the award, in addition, of the whole or part of the costs of the litigation. But this is subject to the ability of the carrier to limit his liability for costs by an offer in writing to the plaintiff. The effect of these rules would, I think, be severely distorted if they could not be applied generally to all cases in which a claim is made against the carrier.

    Articles 23 and 24 also are provisions which seem to have been designed to apply generally, and to indicate that the possibility of exceptions to the rules laid down in Chapter III was not being contemplated. Article 23 states that any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in the Convention shall be null and void. It then goes on to state that the nullity of any such provision does not involve the nullity of the whole contract, which is to remain subject to the provisions of the Convention. The generality of effect is to be found in the opening words, since the article applies to "any provision" which tends to relieve the carrier of liability or to fix a lower limit than that laid down by the Convention. I think that the purpose of this provision is clear. It is to protect the passenger or other person dealing with the carrier against provisions of the kind which it describes. Contracting out of liability in contracts of carriage is, of course, now widely regulated by statute. But no doubt in the early 1920's, when what became the Warsaw Convention was being negotiated, carriers engaged in international carriage by air were free to contract on whatever terms they cared to select, controlled only by the demands of the marketplace in which they were operating. To surrender freedom of contract on this issue was an important concession on the part of carriers, which made sense only in the context of the entire set of rules by which their conduct was to be regulated.

    The counterpart of what was plainly a compromise is to be found in the following article, article 24. This Article provides that in the cases covered by articles 18 and 19 and by article 17 respectively - these cases are dealt with separately in two different paragraphs - "any action of damages, however founded, can only be brought subject to the conditions and limits set" by the Convention. It should be noted in passing that paragraph (2) of the article states that this rule is to apply to the cases covered by article 17 "without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights." As Professor Rene H Mankiewicz has pointed out in his article, "The Judicial Diversification of Uniform Private Law Conventions - The Warsaw Convention's Days in Court" (1972) 21 I.C.L.Q. 718, 741 no one could expect states to be prepared to amend their laws relating to these questions, which are basic to the laws of tort and contract and therefore of a wide reaching significance, for the sole purpose of unifying and accommodating all matters relating to the law of the air carrier's liability.

    The structure of these two provisions seems to me therefore to be this. On the one hand the carrier surrenders his freedom to exclude or to limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 - which is the issue in the present case - seems to be entirely contrary to the system which these two articles were designed to create.

    The reference in the opening words of article 24(2) to "the cases covered by articles 17" does, of course, invite the question whether article 17 was intended to cover only those cases for which the carrier is liable in damages under that article. The answer to that question may indeed be said to lie at the heart of this case. In my opinion the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article. In its context the purpose seems to me to be to prescribe the circumstances - that is to say, the only circumstances - in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air.

    The phrase "the cases covered by article 17" extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19. The words "however founded" which appear in article 24(1) and are applied to passenger's claims by article 24(2) support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carrier's freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.

    Only two other articles may be mentioned in this analysis: articles 28 and 29. These restrict the places in which "an action for damages" must be brought, and provide that "the right to damages" shall be extinguished if an action is not brought within two years. Here again it seems that a balance has been struck in the interests of uniformity of treatment and of certainty. I see no sign in the generality with which these provisions have been expressed of a recognition that there may be some actions of damages arising from the international carriage of passengers by air which are not subject to these rules. It would be largely destructive of the system which this chapter seems to have been designed to lay down if a passenger were to be able, for example, to maintain a claim of damages for non-bodily injury, for loss of or damage to the personal possessions which he had with him inside the aircraft or for economic loss, outside the conditions and limits set by the Convention while maintaining a claim under the Convention for the bodily injury. No doubt it was for this reason that it was conceded that, if he had a claim under article 17, the passenger would not be able to maintain any other claim against the carrier arising out of the same incident. But it seems to me that, by parity of reasoning, the same approach must be taken to cases arising out of international carriage by air where he has no claim under article 17 at all.

 

(b) THE TRAVAUX PRÉPARATOIRES

    We were shown a copy, in the English translation, of the Minutes of the Second International Conference on Private Aeronautical Law, 4 to 12 October 1929 at Warsaw. Attached to these minutes are copies of the documents submitted to the conference. These comprise (a) a preliminary draft of the Convention prepared by the International Technical Committee of Legal Aeronautical Experts (C.I.T.E.J.A.), together with a report on the preliminary draft by Mr. Henri De Vos in name of the committee and (b) proposals of amendments submitted to the Warsaw Conference by a preparatory committee and by various delegations to the conference. The first conference had been held in Paris in 1925, so the material which was before the conference in Warsaw in 1929 was the product of four years work by the committee.

    I do not think that it would be profitable for me to attempt to summarise this material. There are various passages in the minutes where the delegates are recorded as expressing views about the object of the Convention. For example, Sir Alfred Dennis on behalf of Great Britain, said at p. 85, that the object of the Convention was to ensure uniformity of law, and, at p. 213, he said that what became article 24(1) touched the very substance of the Convention because it excluded resort to the common law. Similar observations are attributed to the Soviet delegate, Mr. Sabanin, at p. 40 and to the French delegate, Mr. Ripert, at p. 47. At p. 49, Mr. De Vos referred to various questions relating to the carrier's liability as being connected to each other, as they constituted "the parts of a whole which is the system of liability." But these are mere straws in the wind which emerged during several days of detailed discussion to which many delegates contributed. I do not find a sufficiently clear and consistent expression of views here about the objects of the Convention on the point which is at issue in this case to enable me to say that the answer to the problem is to be found in the minutes. The most that can be said is that I have not found anything in these minutes or in the accompanying material which contradicts the impression which I have already formed on reading the Convention.

    There is one particular point arising from the minutes however on which I think I should comment. It relates to the phrase "Certain Rules" in the title to the Convention. The title in the preliminary draft did not contain this phrase. In their proposals, however, the delegates from Czechoslovakia had proposed an amendment to Chapter IV of the draft to the effect that there should be inserted in it an article which would have provided that, in the absence of a stipulation in the Convention, the provisions of laws and national rules relating to carriage in each state should be applicable. The effect of that amendment, if introduced, would have been to enable the common law to apply when liability could not be established under the Convention. There was a brief discussion of this amendment during the sixth session of the conference on 9 October: see p. 176 of the minutes. When the proposal was drawn to the attention of the delegates the head of the Italian delegation, Mr. Giannini, said that, following a suggestion made by the German delegation, they were going to propose adopting as a title for the Convention the words "Convention relating to certain rules for the unification of private aeronautical law." He added that, given that this title indicated the special character of the Convention, the Czechoslovak delegation no longer insisted on its amendment. The Czechoslovak proposal was then withdrawn without further discussion. A proposal by the Yugoslav delegation that the Berne Convention should be applied for cases not provided for by the Convention was also withdrawn.

    Mr. Nicholls suggested that the meaning to be given to the words "Certain Rules" in the title should reflect the text of the withdrawn Czechoslovakian amendment. In my opinion, however, the circumstances in which the Czechoslovak delegation agreed to withdraw their proposal are not sufficiently explored in the minutes to enable us to take that meaning from these words. Nor indeed is it sufficiently clear what the scope was of the amendment which that delegation had originally proposed. In an earlier discussion, noted at p. 85 of the minutes, both the British and the Soviet delegates had expressed concern at the insertion of a clause which would have opened gaps in the Convention, as its object was to ensure uniformity. It may be that all the Czechoslovak delegates were seeking to do was to insert a clause in order to clarify the position in regard to chapters of law relating to international carriage by air with which the Convention was not attempting to deal. Their agreement to the substitution of the words "Certain Rules" in the title can easily be explained if that was the only purpose which their amendment was intended to serve.

(c) DECISIONS BY THE COURTS IN THE UNITED KINGDOM

    As I said earlier, the only United Kingdom cases to which we were referred were Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-76, in which Greene L.J. made certain observations about the approach to construction of the Convention and Gatewhite v. Iberia Lineas Aereas de España S.A. [1990] 1 Q.B. 326, in which Gatehouse J. held that, in the absence of express provision in the Convention excluding the owner's right of action, the owner of goods damaged or lost by a carrier was entitled to sue in his own name in accordance with the lex fori and accordingly that the plaintiffs were entitled to damages to be assessed at common law.

    In Grein v. Imperial Airways Ltd. Greene L.J. made observations, at pp. 74-76, about the general objects of the Convention, the desirability of an international code for air carriage, and the need to approach the Convention with a proper appreciation that it was one of the main objects of the Convention to secure the removal of various difficulties which might otherwise have arisen by means of a uniform international code. These observations are helpful as they support the approach which I have taken in my reading of the Convention. But there is nothing in the facts of the case or the particular decision arrived at which is relevant to the issue in this case.

    In Gatewhite v. Iberia Lineas Aereas de España S.A. the defendants had argued that, as that was a case of international carriage of cargo by air, it was governed by the Convention and that the plaintiffs had no claim under it as only the consignor or the consignee had a right of action against the carrier. The judge rejected this argument. He said, at p. 331G that it was remarkable that nowhere did the Convention expressly exclude the right of the owner of goods to sue the carrier for damage to or loss of the goods and that the limitation of this right to consignor or consignee alone arose, if at all, by implication. Having examined various decisions from other jurisdictions which were directed to this issue he was attracted by the reasoning in Tasman Pulp & Paper Co. Ltd. v. Brambles J.B. O'Loghlen Ltd. [1981] 2 N.Z.L.R. 225. It seemed to him that, as the Convention did not expressly deal with the position by excluding the owner's right of action, although it could so easily have done so, the lex fori could fill the gap: see p. 334G.

    Lord Marnoch in the Outer House of the Court of Session, 1996 S.L.T. 529, 537B was able to distinguish the Gatewhite case on the ground that it was dealing with a quite separate aspect of the Convention. Lord Clyde in the Inner House, at p. 546E, said that the area of title to sue was one in which the Convention was not necessarily exhaustive. This decision, however, does not sit easily with the idea that the object of the Convention, in the areas with which it deals, was to provide uniformity of application internationally. As Shawcross and Beaumont, Air Law, VII (188) have observed, the rule in civil law countries is that only a party to a contract of carriage, or a principal for whom he was acting, is regarded as the appropriate plaintiff. In common law countries the proper plaintiff is the owner of the goods, whose right to sue depends on his interest in the goods, not on the fact that he may also be a party to the contract. It would seem to be more consistent with the purpose of the Convention to regard it as providing a uniform rule about who can sue for goods which are lost or damaged during carriage by air, with the result that the owner who is not a party to the contract has no right to sue in his own name.

    We were not asked to review the Gatewhite case in detail however, and as the point was not fully argued I would not wish to cast further doubt on the decision which Gatehouse J. reached. It is sufficient for present purposes to say that I am not persuaded that we should apply his reasoning to the question which is before us here, which is not concerned with the question of standing or title to sue but with the question whether a person who has an undoubted title to sue under the Convention can pursue a claim outside the Convention where the Convention itself does not provide him with a remedy.

(d) DECISIONS BY THE FOREIGN COURTS

    Much of the discussion in both the Outer House and the Inner House in the Court of Session was taken up with a detailed examination of various cases on this topic from the United States of America. All the judges in that court were of the view however that, in the end, no clear guidance was available from this source to enable them to rely on this material in reaching their decision in the present case. Lord Marnoch observed, 1996 S.L.T. 529, 536C-D, that the Supreme Court had on two occasions in recent times found it either unnecessary or inappropriate to consider the question whether the Convention provided an exclusive course of action for injuries sustained during international air transportation: Air France v. Saks (1985) 470 U.S. 392; and Eastern Airlines Inc. v. Floyd (1991) 499 U.S. 530. The result of his review was that there was no clear or very consistent line of reasoning in these cases to guide him in this area of international air law. Lord Mayfield, 1996 S.L.T. 529, 544C said that it was impossible to draw any clear conclusion as to the state of U.S. law, and Lord Clyde expressed the same view, at p. 547J, having observed earlier that it was pointless and perhaps impertinent to subject all these cases to critical analysis. Lord Allanbridge was able to find support in some of the cases for the view which he had already reached on his examination of the Convention. But in the end he agreed, at p. 542L with the observations of Leggatt L.J. in Sidhu v. British Airways Plc. in the Court of Appeal that, in view of the conflicting nature of these authorities and the fact that the Supreme Court had twice refrained from addressing the present problem, it was necessary to reach a conclusion in this case without any definite aid from the United States. As Leggatt L.J. said in his judgment, it appears that the point is not settled in the United States as between circuits and even in some instances within the same circuit. From his consideration of the cases cited to him he was not prepared to say where the preponderance of current opinion lies in the United States.

    I do not think that I can usefully add much to these observations. One could, of course, attempt to prepare an analysis of the various cases which were cited to us in order to show why Metz v. K.L.M. Royal Dutch Airlines, (1979) 15 Avi. 17, 843, Abramson v. Japan Airlines Co. Ltd. (1984) 739 F. 2d 130, Fischer v. Northwest Airlines, (1985) 623 F. Supp. 1064 and Walker v. Eastern Airlines, (1991) 23 Avi. 17, 904, which favour the position of the pursuer and the plaintiffs in this case, should be rejected in the light of the contrary view expressed in Finkelstein v. Trans World Airlines Inc. (1978) 15 Avi. 17, 379 and Saloom (George) v. British Airways, (unreported), 22 February 1993, U.S. District Court, Southern District of California, Western Region. The Saloom case is of particular interest, as the claims which the court held were governed exclusively by the Convention and could not be made out on the facts arose out of the same incident as that with which we are concerned in this case. There are dicta in some other cases, notably Boehringer-Mannheim Diagnostics Inc. v. Pan American Airways Inc. (1984) 737 F. 2d 456, which support the general view that the Convention provides the sole cause of action where a passenger seeks to establish a claim against an air carrier and is the exclusive remedy. But, as Lord Clyde pointed out, 1996 S.L.T. 529, 547C, these general observations are of little value unless they are based on a clear and precise understanding of what matters are governed by the Convention. I am not confident, with great respect to the many American judges who have participated in this debate, that that has always been the case. I believe that it would be unwise to attempt to reconcile all these dicta, or to try to subject each of the various decisions to analysis in order to extract from them a view which one could be confident would be regarded as authoritative.

    In any event, as Mr. Webb pointed out, the United States is only one jurisdiction among many. Although the volume of litigation in that country on aviation matters is substantial and the jurisprudence which has been developed is an important source of information on aviation law generally, views formed there cannot be assumed to be the same as those formed in other jurisdictions which are party to the Convention. Some of the cases in the United States may also be influenced by the question whether the claim for damages was properly to be litigated in the State courts rather than the Federal courts. Lord Diplock in Fothergill v. Monarch Airlines Ltd. [1981] AC 251, 284C drew attention to the factors on which the persuasive value of the decisions of a foreign court must depend. These include the reputation and status of the court, and the extent to which the decision is binding upon courts of co-ordinate and inferior jurisdiction in that country. As matters have developed it will ultimately be for the Supreme Court of the United States of America to offer guidance to the American judges on this issue, and at this stage I do not think that we should attempt to enter into the difficult debate as to how the balance of view is likely to be resolved when the matter is dealt with by that court.

    As for the French case to which we were referred, I think that it also must be regarded as being of no persuasive value in the present case. In Ismail A. Mohamed v. British Airways, (unreported), 8 November 1995, 65 passengers and their close relatives, who were all French nationals, claimed damages from British Airways for the consequences of the same events as those which have given rise to the claims which are before us in these appeals. The Tribunal de Grande Instance de Paris reached the view on the facts that the damages claimed were not linked with disembarkation operations as such, and that they could not be linked to those risks inherent in aerial navigation as provided by the Warsaw Convention. In these circumstances the court felt free to determine the law applicable, on the view that the consequential damages claimed were not covered by the field of application of the Convention. French law was applied, and the plaintiffs were found entitled to damages unrestricted by the limits set by article 22 of the Convention.

    That, however, was a decision at first instance, and we were told that it is now under appeal. The copy of the judgment with which we have been provided, in an English translation, does not contain a close analysis of the Convention, nor is there any reference to previous decisions on the issue in the French courts or elsewhere. The reasons given do not disclose a detailed examination of the issues raised by the defence. It is reasonably clear however that the case proceeded upon a different view from that which has been taken in the present case, where it is conceded that the claims can properly be regarded as arising out of international carriage of passengers by air.

CONCLUSION

    I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the High Contracting Parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.

    An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up. The broad principles which provide the foundation for the law of delict in Scotland and of torts in the English common law have been developed upon these lines. No system of law can attempt to compensate persons for all losses in whatever circumstances. But the assumption is that, where a breach of duty has caused loss, a remedy in damages ought to be available.

    Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract. Exclusion and limitation clauses are a common feature of commercial contracts, and contracts of carriage are no exception. It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity.

    All the obvious cases in which the carrier ought to accept liability were provided for. But, as one of the French delegates to the Warsaw Convention, Mr. Ripert, observed (Minutes p. 73) when the definition of the period of carriage was being discussed, there are an infinite variety of cases not all of which can be put in the same formula. No doubt the domestic courts will try, as carefully as they may, to apply the wording of article 17 to the facts to enable the passenger to obtain a remedy under the Convention. But it is conceded in this case that no such remedy is available. The conclusion must be therefore that any remedy is excluded by the Convention, as the set of uniform rules does not provide for it. The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme.

    The Convention is, of course, tightly drawn on these matters. This has been done in the interests of the carrier, whose exposure to these liabilities without the freedom to contract out of them was a principal consequence of the system which it laid down. Were remedies outside the Convention to become available, it would encourage litigation in other cases to restrict its application still further in the hope of obtaining a better remedy, against which the carrier would have no protection under the contract. I am in no doubt that the Convention was designed to eliminate these difficulties. I see no escape from the conclusion that, where the Convention has not provided a remedy, no remedy is available.

    For these reasons I would dismiss both appeals.




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