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Fothergill v Monarch Airlines Ltd - House Of Lords

[1981] AC 251; [1980] 2 All ER 696; [1980] 3 WLR 209; [1980] 2 Lloyd's Rep 295, (33 ICLQ 797)

HEARING-DATES: 20, 21, 22 May, 10 July 1980

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Judgment 1: Lord Wilberforce

Judgment 2: Lord Diplock

Judgment 3: Lord Fraser of Tullybelton

Judgment 4: Lord Scarman

Judgment 5: Lord Roskill

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Fothergill v Monarch Airlines Ltd - House Of Lords

House of Lords, England

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Fothergill v Monarch Airlines Ltd - House Of Lords

[1981] AC 251; [1980] 2 All ER 696; [1980] 3 WLR 209; [1980] 2 Lloyd's Rep 295, (33 ICLQ 797)

HEARING-DATES: 20, 21, 22 May, 10 July 1980

Judgment 1: Lord Wilberforce

LORD WILBERFORCE. My lords, this appeal involves a small sum of money (L16.50), 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. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R The respondent, Mr Fothergill, in March 1975 arrived at Luton airport after an international flight on one of the appellant's 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 (PIR) 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 L12.50 and in due course the airline accepted liability for it. After Mr Fothergill reached home he discovered that some of the contents were missing: a shirt, a pair of sandals and a cardigan, value L16.50. 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 as amended by the Hague Protocol of 1955.

The airline relies on art 26 as an answer to the claim. This (as amended by art 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. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R

'(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 fourteen 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 twenty-one 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.'

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

The first point, which depends on the construction of the article, has been disposed of for the future, as regards cases governed by English law, by the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Carriage by Air and Road Act 1979, s 2, which enacts specifically that art 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 art 26. The Warsaw Convention of 1929, which contained an art 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 Sch 1 a translation of the convention in to English and provided by a 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 (art xv in the resulting protocol) was to substitute for art 26(2) 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 1932 Act. This contained a [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Sch 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 by sub-s (1) that the convention as amended 'as set out in the First Schedule' should have the force of law in the United Kingdom. Subsection (2) was as follows:

'If there is any inconsistency between the text in English in Part I of the First Schedule 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 and Shipping (UK) Ltd [1977] 3 All ER 1048, [1978] AC 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 the First Schedule', ie 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R English text, according to the principles on which international conventions areto be interpreted (see Buchanan's case and Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328 at 350, [1931] All ER Rep 666, (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 preparatoires may be looked at in order to resolve the difficulty.

I start by considering the purpose of art 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 art 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 (eg the baggage checks or passenger ticket, or the air waybill) are retained until the issue of liability is disposed of. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 on which the limit of liability is fixed: see art 22(2)(b) which explicitly mentions 'any object contained therein' (eg 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', eg in art 17 or art 19. Sometimes it means 'physical damage', eg art 22(2)(b). In some articles it is used with both meanings, eg art 18. Whether it can include 'partial loss' is, textually, open to argument. There can be no doubt that the carrier is liable for loss, [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R total or partial, of the contents of baggage; the airline 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 MR when he says ([1979] 3 All ER 445 at449, [1980] QB 23 at 36): 'In art 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 (see arts 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 Buchanan's case, 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 language, 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 ofthe process he is using, and, if they think fit, they can supplement his resources with other material, other dictionaries, other books of reference, textbooks 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 ([1977] 3 All ER 616, [1978] QB 108) and the Court of Appeal ([1979] 3 All ER 445, [1980] QB 23)) therefore looked at dictionaries and at certain textbooks 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R former, which provide a translation, since then we have to interpret the translation. Two are of high quality: the Nouveau Dictionnaire de Droit (4th Edn, 1974) of M Raymond Barraine, docteur en droit, and the Tresor de la langue francaise published by the National Centre of Scientific Research in 1974. 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 textbook 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. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R The textbooks and articles, however, do take the matter further. Professor Edu Pontavice in his article on maritime law and air law in (1968) 2 Jurisprudence s 15515 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. Monsieur Max Litvine, of the Free University of Brussels, writes, referring to art 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 Aerien (1976)). Professor Rodiere of the University of Paris in his book on Transport Law (1977)writes (see s 607) 'the text [of art 26] relates only to average [ie '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 Precis Dalloz (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 Luftrecht:

'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 limits. Thus the term damage is given a broad interpretation: simply partial loss and partial [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R destruction are both, basically, considered to be damage.'

I quote also from an extract from the Argentine Compendio de Derecho Aeronautico written by Juan La Paz because this well states the reasoning:

'As paragraph 2 of Article 26 only mentions "damage", it is necessary to determine whether the protest [ie 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 article 13(3)... 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 art26(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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 of 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] 3 All ER 641, [1977] 1 WLR 625 and in Buchanan's case. 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 preparatories and, if so, to what effect. But as these matters were relied on in the Court of Appeal by Lord Denning MR, Browne and Geoffrey Lane LJJ 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 preparatories in the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R interpretation of treaties, and do not relate to interpretation of domestic legislation, rules as to which have been recently laid down by this House.

There is little firm authority in English law supporting the use of travaux preparatories in the interpretation of treaties or conventions. The passage usually cited in support of such use is from the judgment of Lord Reading CJ in Porter v Freudenberg [1915] 1 KB 857 at 876, [1914-15] All ER Rep 918 at 928, 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 on the wording of the relevant article in its context in preference to the (inconsistent) statements. There is a passing reference to travaux preparatories in relation to an international convention in Post Office v Estuary Radio Ltd [1967] 3 All ER 663 at 685, [1968] 2 QB 740 at 761 per Diplock LJ, 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 preparatories as an aid to interpretation: see O'Connell, International Law (2nd Edn, 1970, p 262), Brownlie, Principles of Public International Law (1979, pp 627-628). This practice is cautiously endorsed by art 32 of the Vienna Convention on the Law of Treaties of 1969 (Misc 19 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R (1971); Cmnd 4818). We are here concerned with what is in effect a private law convention likely to be litigated primarily in municipal courts. In the interest of uniformity of application we ought, in considering whether to use travaux preparatories, to have regard to the general practice applied, or likely to be applied, in the courts of other contracting states. Professor A F Dumon (Advocate-General of the Cour de Cassation of Belgium) in his comprehensive examination of the subject of interpretation, delivered to the Court of Justice of the European Communities in 1976 (see the official report of the Judicial and Academic Conference, p 101) states:

'It may be stated that in the Federal Republics 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 (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 the Warsaw Conference done by CITEJA and [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 Assemblee pleniere, in a case on the Warsaw Convention, art 29, Lorans v Air France 31 RFDA 268. In his 'conclusions' the Advocate-General (M R Schmelck) said this (my translation):

'I shall not take up time on the old dispute concerning the general scope of travaux preparatories. I shall limit myself to the observation that, when one is concerned with the travaux preparatories 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 preparatories 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 on 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.' [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 preparatories 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 art 29 of the Warsaw Convention by reference, inter alia, to the travaux preparatories without expressing disagreement with the procedure, and reversed it on 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 preparatories 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 preparatories 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 preparatories [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R clearly and indisputably point to a definite legislative intention. It would I think be unnecessarily restrictive to exclude from consideration, as travaux preparatories, the work of the Paris Conference of 1925, and the work of CITEJA 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 preparatories 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, 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 preparatories are contained in the minutes of the Hague Conference of 1955, published by ICAO and available for sale in a number of places including Her Majesty's Stationery Office, and so accessible to legislators, textbook 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. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R For the reasons I have already given I would hold, in agreement with Lord Denning MR, 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 PIR in no way qualified. It said nothing about the contents of the baggage and it was totally insufficient for the purposes 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.


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