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] A.C. 251, where the question at issue arose under article 26(2) of the Convention. It does not need to be elaborated upon in this case. It is now well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country. As Lord Diplock said, at p. 279, one must give a purposive construction to the Convention looked at as a whole. The observations of Greene L.J. in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-76, to which I shall return later, are to the same effect.

(iii)  THE TRAVAUX PRÉPARATOIRES

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

(iv) DECISIONS BY THE COURTS IN THE UNITED KINGDOM

    The only cases to which we were referred as having any possible bearing on the issue which we have to decide in this case were Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 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 W.L.R. 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:

 "The purpose of an international convention is to harmonise the laws of all contracting states on the particular topic dealt with by the Convention. It is therefore very important that the interpretation of the Convention should be the same, so far as possible, in all contracting states."

(vii) ANALYSIS OF THIS MATERIAL

    It follows from what I have just said that no analysis is required of the 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.

(a) THE ENGLISH TEXT OF THE CONVENTION

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

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

    These issues are identified in the principal chapter headings, which are those to Chapters II, III and IV--"Documents of Carriage," "Liability of the Carrier" and "Provisions Relating to Combined Carriage." Nothing is said in this Convention about the liability of passengers to the carrier, for example. Nor is anything said about the 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

 "a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage."

    This provision was relied on to some extent by Lord Clyde, 1996 S.L.T. 529, 545J. He said that the words used here would seem quite 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:

 "(c)  . . . leur transport peut être régi par la Convention de Varsovie qui, en général, limite la responsabilité du transporteur en cas de mort ou de lésion corporelle, ainsi qu'en cas de perte ou d'avarie des bagages."

    The word "governs" which is to be found in the English text is an accurate translation of the word "régi" in the French text. But the English version does not follow the French wording 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.