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|Judgments -- Fellowes or Herd v. Clyde Helicopters Ltd
Lord Hope of Craighead Lord Clyde
LORD MACKAY OF CLASHFERN L.C.
My Lords, Sergeant Malcolm Herd was killed in a helicopter crash on 24 January 1990. The first appellant is his widow, suing as Guardian of their four children. The second appellant is Sergeant Herd's mother.
At the time of his death Sergeant Herd was a member of the Police Helicopter Unit of the Strathclyde Police Force. His duties were to carry out aerial surveillance and detection within Strathclyde. The helicopters used by the Helicopter Unit were supplied by the respondents, Clyde Helicopters Ltd., in terms of a contract between them and Strathclyde Regional Council as police authority for Strathclyde. On the date of his death Sergeant Herd and two colleagues were carrying out their duties on board one of these helicopters. During the flight a snow storm was encountered as a result of which the pilot, an employee of the respondents, became lost, an engine failure occurred and the helicopter collided with a block of flats on the south side of Glasgow, as a result of which Sergeant Herd sustained fatal injuries.
The appellants are suing the respondents for reparation in respect of the death of Sergeant Herd, basing their claim on allegations of common law negligence on the part of the respondents' pilot. The respondents maintain that the claim in respect of common law negligence is excluded by the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) and particularly the provisions of paragraphs 3 and 4 of and Schedule 1 to, that Order, and that their liability is confined to liability under that Order, which I shall refer to as "the Order."
The Lord Ordinary, Lord Milligan, gave judgment in favour of the respondents on this issue and on a reclaiming motion the Second Division of the Court of Session (Lord Justice Clerk, Lord Ross and Lord Morrison, Lord Murray dissenting), 1996 S.L.T. 976 adhered to the interlocutor of the Lord Ordinary. Against that judgment the appellants appeal to this House.
The history of the legislation of which the Order forms part is clearly described in Holmes v. Bangladesh Biman Corporation  A.C. 1112 in the speech of Lord Bridge of Harwich, at pp. 1124F--1126C, and 1129A--1131H and in the speech of Lord Jauncey of Tullichettle, at pp. 1139G--1144E. I need not repeat it here except to say that I shall have occasion later to comment on a passage quoted in both of these speeches from Greene L.J., as he then was, in Grein v. Imperial Airways Ltd.  1 K.B. 50, 74, which is also referred to by Lord Hope of Craighead in Sidhu v. British Airways Plc.  2 W.L.R. 26, 36H. Like Lord Bridge of Harwich I shall refer to "the Warsaw rules" (Schedule 2 to the Order), "the Hague rules" (Schedule 1 to the Act of 1961, the Carriage by Air Act 1961) and "the United Kingdom rules" (Schedule 1 to the Order).
As history shows, the Order was made under powers conferred upon Her Majesty by Order in Council by section 10 of the Act of 1961
No submissions have been made in this appeal based upon the terms of the power to make the Order in Council and I turn immediately to the terms of that Order as they are said to apply in the present case.
By paragraph 3 the Order applies to all carriage by air, not being carriage to which the Hague rules apply. In terms of article 1(1) of Part I of Schedule 1 to the Act of 1961 the Hague rules apply to "all international of carriage persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking."
In terms of article 1(2) "for the purposes of" the Hague rules
International carriage is defined in Schedule 2 by paragraph 3(2) as follows:
In the present case the specification of the contract between the respondents and Strathclyde Regional Council contains the provision:
Accordingly it is clear that in general the aircraft would not be used beyond the boundaries of Strathclyde region and therefore outside the boundaries of the United Kingdom, and there is certainly no question of any arrangement in respect of the fatal flight that it should go outside the bounds of the Strathclyde region. No question therefore arises in the present case that the Hague rules could apply in the circumstances of the fatal flight, nor that it could involve international carriage as defined in Schedule 2 to the Order (the Warsaw rules). It follows that Schedule 1 to the Order has effect in law in respect of any carriage by air involved in the fatal flight.
Before proceeding to consider the application of the Schedule to the circumstances of this case it is necessary to set out some further facts. In terms of their contract the respondents were obliged to be prepared to carry such numbers of people and equipment as required by the Chief Constable or his authorised representatives as might reasonably be required for the operation of the contract. The contract required the respondents to provide a complete air support service to Strathclyde police over a five month period, the aircraft operating on a private operator basis, with the Chief Constable of Strathclyde Police or his authorised representatives as the responsible person, from whom the respondents would take all reasonable instruction. The aircraft were to operate from an operating base within a radius of 10 miles of Strathclyde Police Headquarters and the respondents were required to supply the aircraft for the exclusive use of Strathclyde police, during the period of the contract providing pilotage, all maintenance services, full ground facilities, including an operating base and hangerage, all fuel, insurance cover and such other facilities necessary for the performance of the contract. The contract contained a description of the aircraft required and provided that the following equipment considered essential for police operations was to be supplied by the respondents:
1. "Nitesun" or equivalent powered searchlight facility, capable of being operated by remote control within the cabin.
2. A night sight device.
3. A public address system, stabilised binoculars or night glasses.
Since the aircraft was to operate predominantly at low level, the respondents were also required to specify what method would be used to ensure that Civil Aviation minimum height conditions would be maintained. The aircraft were in addition required to be provided with facilities for the transportation of stretcher cases, with under-slung cargo lifting facilities, with navigation and instrumentation to appropriate standard to enable operation within the hours of darkness, with provision for police radio link and with flotation equipment, since Strathclyde region encompasses a number of islands. It was required that the aircraft livery was to be in police colours incorporating the lettering "Police" on the aircraft nose, sides and in large letters on the underside. The respondents were also required to provide a helicopter landing pad situated within 10 miles of Strathclyde Police Headquarters with office accommodation adjacent to the landing pad including refreshment facilities for crew members and support staff during standby periods, for a minimum of five persons at any one time. This suggests that the word "crew" in this context included police officers. The contract period was 150 consecutive days from the commencement of the contract, Strathclyde police guaranteed to undertake a minimum of 350 flying hours during that period, and the basic contract price was £198,000.
The duties of Sergeant Herd and his police colleagues while they were on board the helicopters, provided in pursuance of the contract, were to direct the surveillance operations on which the helicopters were engaged; to give the necessary instructions to the pilots; to inform the pilots of the manoeuvres which they wished them to carry out and generally to act as observers and to provide information to the pilots during the course of each flight. On the occasion of the fatal flight the respondents' pilot was Captain Graham Pryke, who was solely responsible for the flying of the helicopter and all decisions related thereto.
Although, as I have said, the contract itself provided that the respondents' aircraft would operate on a private basis, the respondents aver that the Civil Aviation Authority subsequently ruled that the contract amounted to a public transport commission and that all flights performed under and in terms of the contract should accordingly be deemed to be flights for the purposes of public transport. This allegation is not dealt with in the appellants' pleadings and in my opinion nothing turns upon it in the circumstances of this case.
Against this background of fact the case for the appellants is that the Order did not operate to limit the respondents' liability and, in particular, that it did not exclude the respondents' liability to the appellants at common law. In support of this submission they argue that the Regional Council contract was not a contract of carriage, that Sergeant Herd neither accepted nor consented to the terms of the Regional Council contract, that he was not on board the helicopter as a passenger and neither was he a party to any contract of carriage.
The respondents, on the other hand, maintain that the Order did apply to limit the liability of the respondents in respect of the death of Sergeant Herd and, in particular, that it excluded liability to the relatives of Sergeant Herd for negligence at common law. They argue that Sergeant Herd was being carried on the helicopter for reward with the agreement of the respondents, that he was a passenger, that the respondents had agreed to the carriage of Sergeant Herd on the helicopter, that he was there in pursuance of a contract between the police authority and the respondents which provided for the carriage of such a police officer and that he was a person whom the Chief Constable in the circumstances had required the respondents to carry in terms of the contract between the police authority and the respondents, and, in the discharge of his duties as a police officer under the direction of the Chief Constable, Sergeant Herd, they say, implicitly consented to such carriage.
Although a number of decisions of both the United Kingdom courts and of the courts of the United States of America, of Canada and of France were referred to in argument, none of them deals directly with the application of the Order to circumstances such as obtain in the present case and therefore I propose to consider the matter firstly by seeking to apply the relevant words of the Order to the circumstances of the present case and then to consider whether any of the decisions cited cast doubt on the validity of the conclusion thus reached.
Article 1 provides:
It appears to me clear that Sergeant Herd was being carried by the respondents' helicopter at the time of his death. Indeed in their written case on this appeal the appellants state at p. 15A:
That carriage was performed by the respondents in terms of the requirement to carry such numbers of people and equipment as required by the Chief Constable or his authorised representatives and that was a stipulation to be carried out, among others, in return for the sum contracted to be paid by the Regional Council to the respondents under the contract. I therefore conclude that the result of reading the words of this article in their ordinary meaning is that the Schedule applies to the carriage of Sergeant Herd on the fatal flight.
Article 17 provides:
In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger.
Article 22 states that (and it has been affected by subsequent modifications to the way in which the limitation of liability is calculated which are not relevant for our present consideration so that it is sufficient to say that it provides that) "In the carriage of persons the liability of the carrier for each passenger is limited. . . ." This appears to me to apply directly to liability for Sergeant Herd and for his death.
Article 24(2) provides:
This provision appears to me plainly to exclude any action for damages except in accordance with the conditions and limits set out in the Schedule, and accordingly effectively to limit the claims of the appellants to liability as provided for in article 17, leaving the distribution of the total amount available between the persons having right thereto in the proportions to be determined by the general law, in this case the law of Scotland.
Article 25 is not founded on in this case.
It appears to me that what I have said so far is sufficient to demonstrate that the result contended for by the respondents is correct, subject to consideration of any argument that would throw doubt on the validity of the construction which I have put upon the articles of the Schedule so far referred to. In particular, it does not appear to me that the application of the Schedule requires that Sergeant Herd should have been carried under a contract to which he was a party or under a contract of any particular type if he was being carried for reward.
Article 30(1) provides:
This article has no application to the circumstances of the present case but it is founded on as indicating that the Schedule proceeds on the assumption that there will be a contract of carriage if the Schedule applies. In my opinion this article can be given effect appropriately by saying that where a person is carried by an aircraft for reward or gratuitously by an aircraft being operated by an air transport undertaking there must be a contract, which is, for the purposes of article 30, the contract of carriage. I should also note in passing that article 31 clearly contemplates that stipulations with regard to carriage by air could be contained within a contract which deals with other matters, for example, for carriage partly by any other mode of carriage than by air. Equally, article 32 can in my view be explained in the same way as I have suggested as available in respect of article 30. The reference to contract of carriage in article 33 I think is of no particular significance. I should also point out that article 25A of the Schedule applies to servants or agents of the carrier who would not themselves generally, be parties to any contract of carriage. This is relevant to the question of whether the Order is to be considered as effective in law, providing general rules with regard to the liability of the carrier in respect of the contract of carriage, or as imposing on the contract statutory rules which the contracting parties are not entitled to agree to vary or contravene. Undoubtedly article 30 denies effect to clauses or special agreements entered into before the damage occurred by which the parties purpose to infringe the rules laid down by this Schedule, whether by deciding the law to be applied or by altering the rules as to jurisdiction, but in my opinion the general words of article 24 are naturally construed as having effect as general rules of law rather than merely as statutory contractual terms. This view is supported in my opinion by the terms of section 1(1) of the Carriage by Air Act 1961 itself, which provides that reading short the Hague rules shall
and in my opinion the opening words of section 10(1), which as I have said is the empowering section for the Order, empower the application of Schedule 1 to this Act together with any other provisions of this Act to carriage by air dealt with by the Order. It is I think therefore natural to take it that when this power is exercised it is so exercised in a way that relates to the rights and liabilities not only of parties to the contract but also to those of other persons affected by the ordinary meaning of the terms of the Order unless there is some express or implied limitation in the Order itself in respect of those to whom it applies.