Fothergill v Monarch Airlines Ltd
[1981] A.C. 251[1976 F. No. 542]
(Judgment by: Lord Scarman)
Between: Fothergill - Respondent
And: Monarch Airlines Ltd - Appellant
Judges:
Lord Wilberforce
Lord Diplock
Lord Fraser of Tullybelton
Lord ScarmanLord Roskill
Subject References:
AIRCRAFT
CARRIAGE BY AIR
LIMITATION OF LIABILITY
Loss of articles from baggage
Whether 'damage' to baggage
Passenger's failure to complain of partial loss within seven days
Right to claim damages
STATUTE
CONSTRUCTION OF
International convention
Statute giving effect to convention
Use of extrinsic material, including travaux préparatoires, as aid to construction
French text to prevail if inconsistencies between that text and English
Evidence of meaning of French word
RETROACTIVE EFFECT OF STATUTE
Section not to apply to loss that occurred before passing of Act
Effect on construction of original provision
Legislative References:
Carriage by Air Act 1961 (9 & 10 Eliz. 2, c. 27) - 1 (2), Sch. 1, art. 26 (2)
Carriage by Air and Road Act 1979 (c. 28) - 2 (1) (2)
Case References:
Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. - [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810, H.L.(E.)
Brentwood Fabrics Corporation v. KLM Royal Dutch Airlines - June 26, (1970); New York City Court, New York County; 13 Avi. (CCH Aviation Cases) 17,426
Buchanan (James) & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd - [1977] Q.B. 208; [1977] 2 W.L.R. 107; [1977] 1 All E.R. 518, C.A.; [1978] A.C. 141; [1977] 3 W.L.R. 907; [1977] 3 All E.R. 1048, H.L.(E.)
Bulmer (H. P.) Ltd. v. J. Bollinger S.A. - [1974] Ch. 401; [1974] 3 W.L.R. 202; [1974] 2 All E.R. 1226, C.A.
Carter v. Bradbeer - [1975] 1 W.L.R. 1204; [1975] 3 All E.R. 158, H.L.(E.)
Corocraft Ltd. v. Pan American Airways Inc - [1969] 1 Q.B. 616; [1968] 3 W.L.R. 1273; [1969] 1 All E.R. 82, C.A.
Davis v. Johnson - [1979] A.C. 264; [1978] 2 W.L.R. 553; [1978] 1 All E.R. 1132, H.L.(E.)
Day v. Trans World Airlines Inc - (1975) 528 F.2d 31
Gosse Millerd Ltd. v. Canadian Government Merchant Marine Ltd - [1927] 2 K.B. 432; [1929] A.C. 223, H.L.(E.)
Hourani v. T. and J. Harrison - (1927) 32 Com.Cas. 305, C.A.
Inland Revenue Commissioners v. Ayrshire Employers Mutual Insurance Association Ltd - [1946] 1 All E.R. 637, H.L.(Sc.)
Kelman v. Livanos - [1955] 1 W.L.R. 590; [1955] 2 All E.R. 236
Lorans v. Cie. Air France - January 14, 1977; Cour de Cassation (Assembleé Plénière); Bulletin des Arrêts de la Cour de Cassation, Chambres Civiles, 1977, V, no. 1, p. 1 (cassation); Revue Française de Droit Aérien, vol. 31 (1977), p. 268
Porter v. Freudenberg - [1915] 1 K.B. 857, C.A.
Post Office v. Estuary Radio Ltd - [1968] 2 Q.B. 740; [1967] 1 W.L.R. 1396; [1967] 3 All E.R. 663, C.A.
Price & Co. v. A.1 Ships' Small Damage Insurance Association Ltd - (1889) 22 Q.B.D. 580, C.A.
Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd - [1954] 2 Q.B. 402; [1954] 2 W.L.R. 1005; [1954] 2 All E.R. 158
Rustenberg Platinum Mines Ltd. v. South African Airways - [1977] 1 Lloyd's Rep. 564; [1979] 1 Lloyd's Rep. 19, C.A.
Salomon v. Customs and Excise Commissioners - [1967] 2 Q.B. 116; [1966] 3 W.L.R. 1223; [1966] 3 All E.R. 871, C.A.
Schwimmer v. Air France - June 2, 1976; New York City Civil Court, Bronx County; 14 Avi. (CCH Aviation Cases) 17,466
Stag Line Ltd. v. Foscolo, Mango & Co. Ltd - [1932] A.C. 328, H.L.(E.)
Taylor v. Liverpool and Great Western Steam Co - (1874) L.R. 9 Q.B. 546
Tondriau v. Cie. Air India - January 27, 1977; Court of Appeal of Belgium; Pasicrisie Belge, 1977 (1) 574; Revue Française de Droit Aérien, vol. 31 (1977), p. 193
Ulster-Swift Ltd v. Taunton Meat Haulage Ltd - [1977] 1 W.L.R. 625; [1977] 3 All E.R. 641, C.A
Judgment date: 10 July 1980
Judgment by:
Lord Scarman
My Lords, I agree with the speech delivered by my noble and learned friend, Lord Wilberforce. If there be any difference between us, it relates only to our respective views as to the ordinary, or more common, meaning of the word "damage" in the English usage. But for the reasons appearing in his speech, and mine, the difference, if any there be, is of no moment.
I venture, however, to add some comments of my own as to the correct approach by our courts to the interpretation of international conventions. I do so because of the growing importance of the task. I confidently expect that the municipal courts of the United Kingdom will have increasingly to tackle this job: and, if they are to do it successfully, they will have to achieve an approach which is broadly in line with the practice of public international law.
Faced with an international treaty which has been incorporated into our law, British courts should now follow broadly the guidelines declared by the Vienna Convention on the Law of Treaties, to which my noble and learned friend refers. Lord Denning M.R. reconnoitred the ground - or, rather, the waters - of this new judicial operation in the area of the common market when he spoke of an incoming tide of law flowing into our rivers and estuaries: see his dicta in H. P. Bulmer Ltd. v. J. Bollinger S.A. [1974] Ch. 401, 418F, 425C-H. But the waters are not confined to the legal outpourings of the Rhine and the Scheldt: they comprise the oceans of the world. The Warsaw Convention is itself world-wide.
The case concerns the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air. Upon a literal construction of article 26 (2) of the Convention I would agree with the interpretation placed upon the word "damage" in the article by Kerr J. at first instance and by Browne and Geoffrey Lane L.JJ. in the Court of Appeal. I would construe it as meaning physical injury to the baggage (or cargo) and as excluding a partial loss of the contents. Linguistically. I agree with the American judge (Shapiro J.) in Schwimmer v. Air France (1976) 14 Avi. 17,466, 17,467 that in ordinary usage "damage is damage and loss is loss." Moreover I am satisfied that the ordinary meaning of "avarie," the word used in the French text, is physical harm, or injury to an object. Notwithstanding the specialist meaning of "avarie" in French maritime law where it does also include a maritime loss (compare the use of our word "average" in marine insurance), there would be no inconsistency between the English and French texts unless the context of article 26 (2) be such that one must give to "avarie" this highly specialised meaning: but, in my opinion, the context does not so require.
If, therefore, the literal construction be legitimate, I would dismiss the appeal. But, in my judgment, it is not. It makes commercial sense to apply, if it be possible, the same time limits for giving notice of a complaint of partial loss of contents as for one of physical damage: and I am equally in no doubt that it is the duty of the English courts to apply, if possible, an interpretation which meets the commercial purpose of the Convention. In my judgment, such an interpretation is possible; and I have derived a measure of assistance in reaching my conclusion from certain aids to interpretation which, if we were not concerned with an international convention, it would not be legitimate to use.
The trial judge's error was, I think, to construe the article as though it were merely a term of a ticket contract. It is much more than that. It is part of a convention intended to unify the rules relating to the carriage of persons and goods by air. The majority of the Court of Appeal (Browne and Geoffrey Lane L.JJ.) was, I think, also misled by the ordinary meaning of "damage" into interpreting the Convention in a way inconsistent with its purpose. It is because I consider it our duty to interpret, if it be possible, article 26 (2) in a way which is consistent with the purpose of the Convention that I think it necessary to discuss the intricate questions raised as to the correct approach of a British court to a convention of this character.
The issue between the parties is as to the construction to be put upon an Act of Parliament. But the Act requires the courts to interpret an international convention. The Convention is in French. The French text, as well as an English text, is scheduled to the Act. In the event of any inconsistency between the two texts, the French is to prevail. The French text is, therefore, English law. The English text is secondary - a statutory translation. Three problems of importance arise:
- (1)
- What is the approach to be adopted by British courts to the interpretation of an international convention incorporated by statute into our law?
- (2)
- To what aids may our courts have recourse in interpreting such a convention?
- (3)
- If our courts may have recourse to "travaux préparatoires," to foreign judicial decisions, and to the writings of distinguished jurists expert in the field of law covered by the Convention, by what criteria are they to select such material and what weight are they to give it?
The Convention under consideration is "the Warsaw Convention as amended at The Hague, 1955." Its purpose is to promote uniformity in its field. The Convention was signed on behalf of the United Kingdom at Warsaw on October 12, 1929. An English text was scheduled to the Carriage by Air Act 1932, which provided that, in so far as they related to the rights and liabilities of carriers, passengers, consignors, consignees and others concerned in the international carriage of persons, luggage or goods by aircraft for reward (or gratuitously by an air transport undertaking), the provisions of the Convention should have the force of law in the United Kingdom: section 1, and Schedule 1 to the Act. The French text was not scheduled to the Act: but article 36 of the Convention provided:
"The Convention is drawn up in French ..."
The Convention was amended at an international conference at The Hague in 1955. The outcome of the conference was an amended text drawn up in French. Parliament legislated to repeal the Act of 1932 and to give effect to the amended Convention by the Carriage by Air Act 1961. This is the statute which has to be construed in this appeal. It follows the pattern of its predecessor. The amended Convention is set out in Schedule 1 to the Act. The Schedule is in two parts, Part I being the English text and Part II the French text. Section 1 (2) of the Act provides:
"If there is any inconsistency between the text in English in Part I of Schedule 1 to this Act and the text in French in Part II of that Schedule, the text in French shall prevail."
Section 4 of the Act declares that the limitations on liability in article 22 of the amended Convention are to apply; and section 4 extends to a carrier's servant or agent the time limit of two years set by article 29 ot the Convention (as I shall hereafter call the amended Convention) for bringing an action for damages against a carrier.
The scheme of the Convention is simple and sensible, being designed to avoid costly litigation, to protect the rights of the users of air carriage and to set reasonable limits upon the liabilities of the carrier. As this appeal relates only to the provisions of the Convention dealing with damage to baggage or cargo, I will refer only to them. The carrier's liabilities are strict. He is liable if the occurrence which caused the damage took place during the carriage: article 18 (1). He is liable for damage caused by delay: article 19. Article 20 gives him a defence if he can prove - usually an impossible task -
"that he and his servants or agents have taken all necessary measures to avoid the damage cr that it was impossible for him or them to take such measures."
Article 21 makes available a defence (in whole or in part) of contributory negligence. Article 22, one of the critically important provisions of the Convention, limits the carrier's liability. Subparagraph (2) (b) of this article is notable because it contains the only reference in the Convention to a partial loss of contents. It is in these terms:
"In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability."
Article 25 excludes the article 22 limits of liability if the damage was caused intentionally or recklessly. Article 26 provides certain safeguards for the carrier. Since it is central to this appeal, I set it out in full:
- "(1)
- Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.
- (2)
- In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and 14 days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within 21 days from the date on which the baggage or cargo have been placed at his disposal.
- (3)
- Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid.
- (4)
- Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part."
Article 29 provides that the right to damages shall be extinguished if action is not brought within two years; and article 36 provides (in the same terms as in the original Convention) that the language of the Convention is French.
The broad approach of our courts to the interpretation of an international convention incorporated into our law is well settled. The international currency of the convention must be respected, as also its international purpose. The convention should be construed "on broad principles of general acceptation." The approach was formulated by Lord Macmillan in Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [1932] A.C. 328, 350; it was adopted by this House in the recent case of James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K) Ltd. [1978] A.C. 141.
The implications of this approach remain, however, to be worked out by our courts. Some can be explored in this appeal: but it would be idle to pretend that all can be foreseen. Our courts will have to develop their jurisprudence in company with the courts of other countries from case to case - a course of action by no means unfamiliar to common law judges. I propose, therefore, to consider only the implications and difficulties which arise in the instant case, and to direct myself broadly along the lines indicated by article 32 of the Vienna Convention on the Law of Treaties.
First, the problem of the French text. Being scheduled to the statute, it is part of our law. Further, in the event of inconsistency, it shall, as a matter of law, prevail over the English text. It is, therefore, the duty of the court to have regard to it. We may not take refuge in our adversarial process, paying regard only to the English text, unless and until one or other of the parties leads evidence to establish an inconsistency with the French. We are to take judicial notice of the French.
We have to form a view as to its meaning. Given our insular isolation from foreign languages, even French, and being unable to assume that all English judges are familiar with the language, how is the court to do its duty? First, the court must have recourse to the English text. It is, after all, the meaning which Parliament believes the French to have. It is an enacted translation, though not binding in law because Parliament has recognised the possibility of inconsistency and has laid down how that difficulty is to be resolved. Secondly, as with the English language, so also with the French, the court may have recourse to dictionaries in its search for a meaning. Thirdly, the court may receive expert evidence directed not to the questions of law which arise in interpreting the convention, but to the meaning, or possible meanings (for there will often be more than one), of the French. It will be for the court, not the expert, to choose the meaning which it considers should be given to the words in issue. The same problem arises frequently with the English language, though here the court relies on its own knowledge of the language supplemented by dictionaries or other written evidence of usage. At the end of the day, the court, applying legal principles of interpretation, selects the meaning which it believes the law requires.
I come now to consider to what aids our courts may have recourse in interpreting an international convention. It matters not how the convention has entered into our law. Once it is part of our law, its international character must be respected. The point made by Lord Macmillan in Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [1932] A.C. 328, 350 is to be borne in mind. Rules contained in an international convention are the outcome of an international conference; if, as in the present case, they operate within the field of private law, they will come under the consideration of foreign courts; and uniformity is the purpose to be served by most international conventions, and we know that unification of the rules relating to international air carriage is the object of the Warsaw Convention. It follows that our judges should be able to have recourse to the same aids to interpretation as their brother judges in the other contracting states. The mischief of any other view is illustrated by the instant case. To deny them this assistance would be a damaging blow to the unification of the rules which was the object of signing and then enacting the Convention. Moreover, the ability of our judges to fulfil the purpose of the enactment would be restricted, and the persuasive authority of their judgments in the jurisdictions of the other contracting states would be diminished.
We know that in the great majority of the contracting states the legislative history, the "travaux préparatoires," the international case law ("la jurisprudence") and the writings of jurists ("la doctrine") would be admissible as aids to the interpretation of the Convention. We know also that such sources would be used in the practice of public international law. They should, therefore, also be admissible in our courts: but they are to be used as aids only.
Aids are not a substitute for the terms of a convention: nor is their use mandatory. The court has a discretion. The exercise of this discretion is the true difficulty raised by the present case. Kerr J. at first instance [1978] Q.B. 108 and Geoffrey Lane L.J. in the Court of Appeal [1980] Q.B. 23 plainly thought it was unnecessary to have recourse to any aids to interpretation other than the words of the Convention. Although I disagree with their conclusion, I think their initial approach was correct. They looked to the terms of the Convention as enacted, and concluded that it was clear.
I agree with them in thinking that the court must first look at the terms of the convention as enacted by Parliament. But, if there be ambiguity or doubt, or if a literal construction appears to conflict with the purpose of the convention, the court must then, in my judgment, have recourse to such aids as are admissible and appear to it to be not only relevant but helpful on the point (or points) under consideration. Mere marginal relevance will not suffice: the aid (or aids) must have weight as well. A great deal of relevant material will fail to meet these criteria. Working papers of delegates to the conference, or memoranda submitted by delegates for consideration by the conference, though relevant, will seldom be helpful: but an agreed conference minute of the understanding upon the basis of which the draft of an article of the convention was accepted may well be of great value. And I agree with Kerr J., at p. 119, that it would be useful if such conferences could identify - perhaps even in the convention - documents to which reference may be made in interpreting the convention.
The same considerations apply to the international case law and the writings of jurists. The decision of a supreme court, or the opinion of a court of cassation, will carry great weight: the decision of an inferior court will not ordinarily do so. The eminence, the experience and the reputation of a jurist will be of importance in determining whether, and, if so, to what extent, the court should rely on his opinion.
Nevertheless the decision whether to resort to these aids, and the weight to be attached to them, is for the court. However, the court's discretion has an unusual feature. It is applied not to a factual situation but to a choice of sources for help in interpreting an enactment. It operates in a purely legal field. An appellate court is not, therefore, bound by the lower court's selection of aids, but must make its own choice, if it thinks recourse to aids is necessary. This legal process is not unlike the use made by our courts of antecedent case law, though it lacks the inhibitions of any doctrine of precedent. To those who would say that there is a risk of our courts becoming burdened with an intolerable load if this material is to be available, I would reply that the remedy lies with the court. It need look at no more than it thinks necessary.
I now apply these criteria to the present case. First, I look at the terms of the Convention. The two texts of article 26 (2) are not inconsistent. Their literal construction suggests, in the absence of indications to the contrary, that "damage" or "avarie" is limited to physical harm or injury. But this appears, for the reasons which my noble and learned friend has developed and which I accept, to be inconsistent with the purpose of article 26. Moreover, it is possible, linguistically, to construe "damage," or "avarie," as covering not only damage to, but partial loss of contents of, baggage or cargo; for - a common feature of language in a complex society - each word can, and does, take a different shade of meaning from its context.
Which construction is to be accepted? At this stage, it is helpful to have regard to the aids which the courts of other contracting states would use in ascertaining the meaning of "damage" or "avarie" in the context of the article. The minutes of the conference of 1955, the outcome of which was the Convention enacted by the Act of 1961, suggest that "damage" in the context of the article was intended to cover partial loss of contents. These minutes, it should be noted, were published in 1956, not only in Montreal (the headquarters of the International Civil Aviation Organisation) but also by Her Majesty's Stationery Office in London: and, probably, elsewhere as well. They are in no way secret. But they are not conclusive.
Further, the weight of the international case law and of the writings of jurists supports the same conclusion. For all these reasons, therefore, i.e., the commercial sense of such an interpretation, the context (including in particular article 22 (2) (b) of the Convention), the minutes of the conference, the case law and the writings of jurists, I conclude that in article 26 (2) of the Convention damage to baggage includes partial loss of its contents. Unless, therefore, complaint of the loss be made within the time limited by the article, no action lies against the carrier.
Upon the subsidiary point that the respondent had given notice of his complaint of partial loss of the contents of his baggage within the time limit set by article 26 (2), I agree with Kerr J. He plainly had not.
I would, therefore, allow the carrier's appeal.