Fothergill v Monarch Airlines Ltd

[1981] A.C. 251
[1976 F. No. 542]

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(Judgment by: Lord Wilberforce)

Between: Fothergill - Respondent
And: Monarch Airlines Ltd - Appellant

Court:

Judges:
Lord WilberforceLord Diplock
Lord Fraser of Tullybelton
Lord Scarman
Lord 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

Hearing date: 20-22 May 1980
Judgment date: 10 July 1980

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Judgment by:
Lord Wilberforce

My Lords, this appeal involves a small sum of money (£16.50), but is said to raise two questions of general importance for airlines and travellers by air. It does, in addition, require discussion of some important issues concerned with the interpretation of treaties.

The respondent, Mr. Fothergill, in March 1975 arrived at Luton airport after an international flight on one of the appellants' aircraft. When his registered baggage, consisting of a suitcase containing personal effects, was delivered to him he noticed that it was damaged. He immediately reported this to an official of the airline, and, as is apparently usual, a property irregularity report (p.i.r.), on a printed form, was completed. Under the heading "Nature of Damage" there was inserted

"Side seam completely parted from case. [Damage] occurred on inbound flight."

This damage was later fixed at £12.50 and in due course the airline accepted liability for it. After the respondent reached home he discovered that some of the contents were missing: a shirt, a pair of sandals and a cardigan - value £16.50. Mr. Fothergill recovered this sum from his insurers who now support his claim against the airline - in fact, no doubt, their insurers. The flight in question was "international carriage" and was governed by the Warsaw Convention of 1929 (Cmd. 4284) as amended by the Hague Protocol of 1955 (1956) (Cmd. 9824).

The airline relies on article 26 as an answer to the claim. This (as amended by article XV of the Protocol) reads:

"(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 a 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."

The airline claims that Mr. Fothergill should have complained of the loss within seven days and that, since he did not do so, his claim is barred by paragraph (4). Mr. Fothergill's answer to this is, first, that no complaint was necessary, since paragraph (2) applies only to damage and not to loss, total or partial; secondly, that, if a complaint was necessary, he made one in time through the p.i.r.

The first point, which depends upon the construction of the article, has been disposed of for the future, as regards cases governed by English law, by the Carriage by Air and Road Act 1979, section 2, which enacts specifically that article 26 (2) is to be construed as including loss of part of the baggage. However, it appears that there are outstanding a number of cases which arose before the Act was passed or which the Act cannot affect. (It clearly, in my opinion, cannot be used as an aid to interpretation of the pre-existing Convention). The second point continues to be relevant, and it is no doubt desirable for both airlines and passengers to know what kind of complaint will satisfy the requirement.

It is first necessary to establish the nature and status of article 26. The Warsaw Convention of 1929, which contained an article 26 in similar form, was agreed to in a single French text, deposited with the Government of Poland. It was introduced into English law (not being, of course, self-executing) by the Carriage by Air Act 1932. This set out in Schedule 1 a translation of the Convention into English and provided (section 1) that the provisions of the Convention as so set out should have the force of law in the United Kingdom.

In 1955 a conference was convened at the Hague, in order, inter alia, to make changes in the limits on the carrier's liability. Occasion was taken to make other amendments; one such amendment (article XV in the resulting Protocol) was to substitute for article 26 (2) (Warsaw) a new paragraph altering the time limits but not otherwise changing the wording. This Protocol was imported into English law by the Carriage by Air Act 1961, which replaced the Act of 1932. This contained a Schedule 1 in two parts. Part I set out an English text of the Warsaw Convention, as amended. Part II set out the French text of that Convention as amended. Section 1 of the Act provided (subsection (1)) that the Convention as amended "as set out in Schedule 1" should have the force of law in the United Kingdom. Subsection (2) was as follows:

"(2)

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."

My Lords, some of the problems which arise when the courts of this country are faced with texts of treaties or conventions in different languages were discussed in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141. It is obvious that the present represents a special and indeed unique case.

Here it is not only permissible to look at a foreign language text, but obligatory. What is made part of English law is the text set out in Schedule 1, i.e. in both Part I and Part II, so both English and French texts must be looked at. Furthermore, it cannot be judged whether there is an inconsistency between two texts unless one looks at both. So, in the present case the process of interpretation seems to involve:

1.

Interpretation of the English text, according to the principles upon which international conventions are to be interpreted (see Buchanan's case and Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [1932] A.C. 328, 350).

2.

Interpretation of the French text according to the same principles but with additional linguistic problems.

3.

Comparison of these meanings.

Moreover, if the process of interpretation leaves the matter in doubt, the question may have to be faced whether "travaux préparatoires" may be looked at in order to resolve the difficulty.

I start by considering the purpose of article 26, and I do not think that in doing so I am infringing any "golden rule." Consideration of the purpose of an enactment is always a legitimate part of the process of interpretation, and if it is usual - and indeed correct - to look first for a clear meaning of the words used, it is certain, in the present case, both on a first look at the relevant text, and from the judgments in the courts below, that no "golden rule" meaning can be ascribed. The purpose of article 26, on the other hand, appears to me to be reasonably clear. It is:

(1)

to enable the airline to check the nature of the "damage",

(2)

to enable it to make inquiries how and when it occurred;

(3)

to enable it to assess its possible liability, to make provision in its accounts and if necessary to claim on its insurers;

(4)

to enable it to ensure that relevant documents (for example, the baggage checks or passenger ticket, or the air waybill) are retained until the issue of liability is disposed of.

If one then inquires whether these considerations are relevant to a case of partial loss of objects contained in baggage, the answer cannot be doubtful: they clearly are. Moreover, prompt notification may give the airline an opportunity of recovering the objects lost.

In particular, as regards (4), preservation of the baggage check is important in order to establish the relevant weight upon which the limit of liability is fixed - see article 22 (2) (b) which explicitly mentions "any object contained therein" (for example, in registered baggage).

There seems, on the contrary, to be no sense in making a distinction between damage to baggage - which presumably must include damage to contents - and loss of contents.

What then of the language? No doubt in an English legal context loss is one thing, damage another. But the nature of the text in question does not suggest that it was drafted with strict English meanings in mind. First, in the English text, the word "damage" in the Convention is used in more than one sense. Sometimes it means "monetary loss" - for example in article 17, or article 19. Sometimes it means "physical damage" - for example, article 22 (2) (b). In some articles it is used with both meanings, for example, article 18. Whether it can include "partial loss" is, textually, open to argument. There can be no doubt that the carrier is liable for loss, total or partial, of the contents of baggage - the appellant does not contend the contrary. Article 22 (2) (b) indeed makes provision for this. But when one looks for the word which covers this, the search yields no clear result. Article 18 refers to "loss of" registered baggage, and "damage to" registered baggage. Nothing there is really apt to cover loss of something contained in the baggage. I am inclined to agree with Lord Denning M.R. when he says [1980] Q.B. 23, 36: "In article 18 (1) I think 'loss of' means loss of the whole suitcase ..." In this state of the text we must see whether the French text can assist.

The French text. This, at least, avoids part of the English difficulty, in that it confines the use of the word "dommage" to monetary loss (articles 17, 18, 19, 20, 25). When it refers to physical "damage" it uses the word "avarie." So what does "avarie" mean? This raises, once more, the question how the court ought to ascertain the meaning of a word or an expression in a foreign language.

My Lords, as in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141, I am not willing to lay down any precise rule on this subject. The process of ascertaining the meaning must vary according to the subject matter. If a judge has some knowledge of the relevant language, there is no reason why he should not use it: this is particularly true of the French or Latin languages, so long languages of our courts. There is no reason why he should not consult a dictionary) if the word is such that a dictionary can reveal its significance: often of course it may substitute one doubt for another. (In Buchanan's case I was perhaps too optimistic in thinking that a simple reference to a dictionary could supply the key to the meaning of "avarie.") In all cases he will have in mind that ours is an adversary system: it is for the parties to make good their contentions. So he will inform them of the process he is using, and, if they think fit, they can supplement his resources with other material - other dictionaries, other books of reference, text-books and decided cases. They may call evidence of an interpreter, if the language is one unknown to the court, or of an expert if the word or expression is such as to require expert interpretation. Between a technical expression in Japanese and a plain word in French there must be a whole spectrum which calls for suitable and individual treatment.

In the present case the word "avarie" would not I think convey a clear meaning to an English mind without assistance. The courts (both Kerr J. and the Court of Appeal) therefore looked at dictionaries and at certain text-books and articles and in my opinion this process cannot be criticised. Neither could they have been criticised if they had allowed expert evidence to be called - for "avarie" is, or may be, a term of art. There were five dictionaries involved, of evidently different standards: some of English publication, others of French. I regard the latter, which provide an analysis, as of greater value than the former, which provide a translation - since then we have to interpret the translation.

Two are of high quality - that of M. Raymond Barraine, docteur en droit [ Nouveau Dictionnaire de Droit et de Sciences Economiques, 4th ed. (1974)], and the Trésor de la Langue Française (1974) published by the Centre National de la Recherche Scientifique. They seem to me to show that "avarie" has both an ordinary meaning and a special meaning as a term of maritime law. In the ordinary meaning, the word signifies physical damage to a movable; in its special meaning, it is capable of meaning physical damage, or loss, including partial loss. In my opinion this does not carry the matter much beyond the English text: both use words of some ambiguity; perhaps the French text points somewhat more in the direction of partial loss than does the English. The text-book writers (to be considered) do not favour the view that "avarie" naturally means partial loss and I do not think that we can so hold. An attempt was made to carry the argument from the French text further by suggesting that "avarie" means "average" and "average" means partial loss. But I cannot accept that it is sound, in effect, to retranslate "avarie" by "average" when in fact it is translated by "damage." Clearly "average" could not be sensibly inserted in the English text in replacement for "damage." Nor am I persuaded that "average," though it may have to do with partial loss, means partial loss.

The linguistic argument, alone, remains to my mind inconclusive.

The text-books and articles, however, do take the matter further. Professor du Pontavice in "Maritime Law and Air Law" [Revue Trimestrielle de Droit Commercial, vol. XXI (1968), p. 472] expresses a clear opinion that "avarie" in article 26 includes partial loss following a theft, approving a decision to this effect by an Argentine court. M. Max Litvine, of the Free University of Brussels, writes, referring to article 26:

"Where the loss or destruction is only partial, it is necessary to decide that article 26 must be effective since the partial loss or destruction a fortiori constitutes damage."

(Droit Aérien (Brussels, 1970), p. 250.)

Professor Rodière of the University of Paris in his book on transport law (Droit des Transports (Paris, 1977) writes (s. 607):

"The text"

(of article 26)

"... relates only to average"

(i.e., "avarie").

"In my view, it must be extended to the partial loss,..."

agreeing with M. Litvine whose work

"is the safest there is."

He appears to express a contrary view in the Précis Dalloz (Droit des Transports Terrestres et Aériens, 2nd ed. (Paris, 1977), s. 271), but the fuller treatment in his own work is, in my view, to be preferred. Dr. Werner Guldimann, attorney at Zurich, often acting as expert for the Swiss Government, writes in Internationales Lufttransportrecht (Zurich, 1965), p. 155:

"[Article 26, paragraph 2] stipulates time limits for complaints made in respect of damage ... and delays ... to goods and baggage ... No time limit is set for destruction and loss, since in such cases it may be assumed that the carrier is already aware of the occurrence and is able to make the necessary arrangements required to secure proof - since this is the aim of such time limits. Thus the term damage is given a broad interpretation: simply partial loss and partial destruction are both basically considered to be damage.... "

I quote also from an extract from the Argentine Compendio de Derecho Aeronáutico (1975) written by Juan A. Lena Paz because this well states the reasoning (section 461, p. 286):

"As paragraph 2 of article 26 only mentions 'damage,' it is necessary to determine whether the protest" (i.e. complaint) "is relevant in the case of 'loss' of the merchandise or luggage. A distinction should be made here between total loss and partial loss. Since the first is a fact which can be verified at any time without the need for proof, a protest is not necessary to bring an action against the transporter and paragraph 3 of article 13 ... is applicable: ... On the other hand, in the case of partial loss, it is vital to establish what is missing as quickly as possible since, as time goes by, the probability of the loss being the result of an event occurring after delivery increases."

My Lords, this consensus is impressive. It supports an interpretation of article 26 (2) to which a purposive construction, as I hope to have shown, clearly points. The language of both texts is unsatisfactory: some strain, if not distortion, seems inevitable but of the governing French text it can at least be said that it does not exclude partial loss from the scope of the paragraph. I am of opinion therefore, on the whole, that following the sense of the matter and the continental writers we should hold that partial loss of contents is included in "damage" and that consequent action may be barred in the absence of a timeous complaint. I should add that we were referred to a number of decided cases in various foreign courts, only a few which were cited below.

But, with all recognition of the diligence of counsel, I do not think that I need or indeed should attempt to summarise them. For three reasons: first, with the exception of one decision of the Belgian Cour de Cassation, they are not decisions of the highest courts; secondly, the process of law reporting varies from country to country and they may not be exhaustive. The dangers inherent in trying to assess a balance of foreign judicial opinion from available cases were well shown in Ulster-Swift Ltd. v. Taunton Meat Haulage Ltd. [1977] 1 W.L.R. 625 and in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141. Thirdly, in any event, it was not beyond argument when the facts of each case were carefully examined on which side the preponderance in quantity, or quality, lay. It is safe to say that your Lordships' decision in this case will not be out of line with the balance of decisions given elsewhere.

This conclusion, that a complaint was necessary within seven days makes it strictly unnecessary to decide whether reliance may be placed on travaux préparatoires and, if so, to what effect. But as these matters were relied on in the Court of Appeal by the learned Master of the Rolls, Browne and Geoffrey Lane L.JJ. taking the contrary view, I think that I must add some observations. I make it clear that they relate solely to the use of travaux préparatoires in the interpretation of treaties, and do not relate to interpretation of domestic legislation, rules as to which have been recently laid down by this House [Davis v. Johnson [1979] A.C. 264].

There is little firm authority in English law supporting the use of travaux préparatoires in the interpretation of treaties or conventions. The passage usually cited in support of such use is from the judgment of Lord Reading C.J. in Porter v. Freudenberg [1915] 1 K.B. 857, 876 when reference was made to statements made in a committee of the conference which prepared the Hague Convention of 1907 upon the Laws and Customs of War on Land. The judgment contains no reasoning in support of this approach, and the case was decided upon the wording of the relevant article in its context in preference to the (inconsistent) statements. There is a passing reference to travaux préparatoires in relation to an international convention in Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740, per Diplock L.J., at p. 761, but even this is tentatively expressed.

When dealing with an international treaty or convention I think that there is no doubt that international courts and tribunals (I exclude from this category the Court of Justice of the European Communities which stands in a class apart) do in general make use of travaux préparatoires as an aid to interpretation: see O'Connell, International Law, 2nd ed. (1970), vol. 1, p. 262, Brownlie, Principles of Public International Law, 3rd ed. (1979), pp. 627-628. This practice is cautiously endorsed by the Vienna Convention on the Law of Treaties (1969) (Cmnd. 4140), article 32. We are here concerned with what is in effect a private law convention likely to be litigated primarily in municipal courts. Tn the interest of uniformity of application we ought, in considering whether to use travaux préparatoires, to have regard to the general practice applied, or likely to be applied, in the courts of other contracting states. Professor A. Dumon (First Advocate-General of the Cour de Cassation of Belgium and the Benelux Court of Justice) in his comprehensive examination of the subject of interpretation, delivered to the Court of Justice of the European Communities in 1976 (The case-law of the Court of Justice - a critical examination of the method of interpretation (Luxembourg, 1976)) states as follows, at p. III-101:

"It may be stated that in the Federal Republic of Germany, France, Italy, Luxembourg, the Netherlands and Belgium both 'administrative' and other courts have recourse in varying degrees, but generally with prudence and caution, to preparatory work of the laws of the legislature."

Professor Dumon here is dealing primarily with domestic laws but a footnote indicates that this approach has been used in interpreting an international treaty.

An example of this can be found in the United States of America: see Day v. Trans World Airlines Inc. (1975) 528 F.2d 31, a decision of the second circuit of the United States Court of Appeals, on the Warsaw Convention. That Court took into account the preparatory work prior to he Warsaw Conference done by the Comité Internationale Technique d'Experts Juridiques Aériens ("C.I.T.E.J.A.") and the minutes of the Warsaw Conference. It is no doubt true that United States courts are in general more liberal in recourse to legislative history than are courts in this country, but the decision in question is one which I would cautiously follow.

A second important illustration is provided by a decision in 1977 of the French Cour de Cassation sitting in assemblée plénière - in a case on the Warsaw Convention, article 29 - Consorts Lorans v. Air France, January 14, 1977; Revue Française de Droit Aérien (Jurisprudence), vol. 31-32, p. 268. In his "conclusion" the Advocate-General M. R. Schmelck said this (my translation):

"I shall not take up time upon the old dispute concerning the general scope of travaux préparatoires. I shall limit myself to the observation that when one is concerned with the travaux préparatoires for an international convention, there may be special reasons for not placing too much reliance on them. The first is that although for a French lawyer these travaux préparatoires may be of some value at least by way of guidance, they have none for a lawyer brought up on the principles of Anglo-Saxon law. Moreover, international tribunals, no doubt under British influence, in general take no account of them. Your court itself does not attribute to them decisive force because when there is a serious doubt upon the interpretation of a treaty, it considers it necessary to consult the Ministry of Foreign Affairs in order to ascertain the intention of the High Contracting Parties."

He continues by referring to the case (such as the Warsaw Convention itself) of an open convention which may be acceded to by states not parties to the negotiations.

The travaux préparatoires of the Warsaw Convention, he concludes, ought not to be treated as gospel truth.

The court, in its decision, did not deal directly with these submissions. However, it referred to the decision appealed from as having reached an interpretation of article 29 of the Warsaw Convention by reference, inter alia, to the travaux préparatoires without expressing disagreement with the procedure, and reversed it upon another ground, viz. that the Convention contains no express derogation from the rules of French domestic law.

My Lords, if one accepts that this reflects a recognition on the part of French law that in the interest of uniformity with English tendencies (perhaps rather overstated by the Advocate-General) the use of travaux préparatoires in the interpretation of treaties should be cautious, I think that it would be proper for us, in the same interest, to recognise that there may be cases where such travaux préparatoires can profitably be used. These cases should be rare, and only where two conditions are fulfilled, first, that the material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention. It would I think be unnecessarily restrictive to exclude from consideration, as travaux préparatoires, the work of the Paris Conference of 1925, and the work of the C.I.T.E.J.A. before 1929, both of which are well known to those concerned with air law, in any case where a clear intention were to be revealed. If the use of travaux préparatoires is limited in this way, that would largely overcome the two objections which may properly be made: first, that relating to later acceding states - as to this see Brownlie, Principles of Public International Law, 3rd ed., p. 628, citing the International Law Commission - and secondly, the general objection that individuals ought not to be bound by discussions or negotiations of which they may never have heard.

The presently relevant travaux préparatoires are contained in the minutes of the Hague Conference of 1955, published by the International Civil Aviation Organisation and available for sale in a number of places including Her Majesty's Stationery Office, and so accessible to legislators, text-book writers, airlines and insurers. I would therefore be in favour of a cautious use of work leading up to the Warsaw Convention and the Hague Protocol.

As regards the conclusions to be drawn from the latter in the present case, I have no reason to disagree with those reached by your Lordships.

For the reasons I have already given I would hold, in agreement with Lord Denning M.R.. that Mr. Fothergill should have lodged a complaint within seven days.

Did he then lodge such a complaint? My Lords, I am clearly of opinion that he did not, and that the p.i.r. in no way qualified. It said nothing about the contents of the baggage and it was totally insufficient for the purpose for which it was required - as stated at the beginning of this opinion. One need only figure a case in which the objects lost were valuable jewellery to see the necessity for a specific complaint of the loss.

In my opinion, therefore, the appeal must be allowed.