|Judgments - Abnett v. British Airways Plc. (Scotland) Sidhu v. British Airways Plc. continued
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(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.  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.  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.  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.  A.C. 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.
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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