 House of Lords |
Session 1996-97
Publications on the Internet Judgments |
| Judgments - Abnett v. British Airways Plc. (Scotland) |
| Sidhu v. British Airways Plc.
|
|
Lord Steyn Lord Hope of Craighead
(APPELLANT)
(RESPONDENTS) (SCOTLAND) (APPELLANTS)
(RESPONDENTS)
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:
|
| continue |