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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 4: Lord Scarman

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 1969 (Misc 19 (1971); Cmnd 4818), to which my noble and learned friend refers. Lord Denning MR 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 SA [1974] 2 All ER 1226at 1231, 1237 [1974] Ch 401 at 418, 425. But the waters are not confined to the legal outpourings of the Rhine and the Schelde: they comprise the oceans of [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R the world. The Warsaw Convention is itself worldwide.

The case concerns the Warsaw Convention for the unification of certain rules relating to international carriage by air. On a literal construction of art 26(2) of the convention I would agree with the interpretation placed on the word 'damage' in the article by Kerr J at first instance and by Browne and Geoffrey Lane LJJ 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 in Schwimmer v Air France (1976)14 Avi 17,466 at 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 art 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 LaneLJJ) 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, art 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 on 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 Britishcourts 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 preparatoires, 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 12th October 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 boods 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 (see s 1 of and Sch 1 to the Act). The French text was not scheduled to the Act, but art 36 of the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R convention provided that '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 1932 Act 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 Sch 1 to the 1961 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 that:

'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.'

Section 4 of the Act declares that the limitations on liability in art 22 of the amended convention are to apply; and s 4 extends to a carrier's servant or agent the time limit of two years set by art 29 of 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 on the liabilities of the carrier. As this appeal relates [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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: see art 18(1). He is liable for damage caused by delay: see art 19. Article 20gives 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 or 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. Sub-paragraph 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.' [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Article 2k excludes the art 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 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.' Article 29 provides that the right to damages shall be extinguished, if action is not brought within two years; and art 36 provides (in the same terms as in [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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"'. This approach was formulated by Lord Macmillan in Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328, at 350, [1931] All ER Rep 666 at 677; it was adopted by this House in the recent case of James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 3 All ER 1048, [1978] AC 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. Out 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 art 32 of the Vienna Convention.

First, the problem of the French text. Being scheduled to the state, it is part of our law. Further, in the event of inconsistency, it shall, as a [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 the Stag Line case 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 known that in the great majority of the contracting states the legislative history, ('les travaux preparatoires'), the international case law ('la jurisprudence') and the writings of jurists ('la doctrine'), would be [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 and Geoffrey Lane LJ in the Court of Appeal 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R an agreed conference minute of the understanding on 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 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 filed. 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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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 art 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 art 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 1961 Act, 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 ICAO) but also by Her Majesty's Stationery Office in London, and, probably, elsewhere as well. They are in no [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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, ie the commercial sense of such an interpretation, the context (including in particular art 22(2)(b) of the convention), the minutes of the conference, the case law and the writings of jurists, I conclude that in art 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.

On 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 art 26(2), I agree with Kerr J. He plainly had not.

I would, therefore, allow the carrier's appeal.


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