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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 5: Lord Roskill

LORD ROSKILL. My Lords, in common will all your Lordships I have reached the conclusion that this appeal should be allowed. I add some observations of my own because the issues raised by this appeal have been widely and ably argued [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R before your Lordships' House. The sum involved is trivial, namely L16.50, and it is the insurers of the respondent, Mr. Fothergill, and not Mr Fothergill himself who in truth are concerned on the plaintiff's side. Mr Fothergill, like other prudent passengers by air, had insured his luggage on the relevant flight, from Rome to Luton, on 13th May 1975. His claim, arising from his undoubted loss, has been properly met by those insurers. They, in their turn, seek to recover from the airline, or more accurately, from the airline's insurers. Thus is issue joined in order to obtain the decision of your Lordships' House on which set of insurers Mr Fothergill's loss should fall. Both the learned judge, Kerr J, and the Court of Appeal have held that that loss should fall on the airline. But the Court of Appeal though unanimous in their conclusion were far from unanimous in their reasons. Browne and Geoffrey Lane LJJ in substance agreed with Kerr J on the main issue and for the same reasons as the learned judge. But Lord Denning MR reached his conclusion by a different route.

My Lords, you Lordships have to determine the true construction of art 26(2) of the Warsaw Convention, as amended at The Hague, both the English and French texts of which are scheduled to the Carriage by Air Act 1961. But, uniquely so far as my own experience goes, that Act by s 2(1) provides that, if there be any inconsistency between the English and French texts, the text in French shall prevail. Not the least important of the tasks before your Lordships' House is to determine how the courts of this country should approach the novel question [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R of the construction of a United Kingdom statute designed to give effect to an international convention, but which expressly enjoins the court concerned to give preference to a text in a language other than that of that court, a language with which the judge or judges of that court may or may not be familiar.

My Lords, the policy of our courts in relation to problems of this kind has evolved gradually over the last sixty years or so. The making of rules designed to secure by international convention uniformity of contracts of carriage is, I believe, a development of this century and first arose in connection with contracts of carriage by sea. During the nineteenth century British shipowners were free to impose, and did impose, on those who entrusted their goods to them for carriage by sea exemptive conditions highly beneficial to those shipowners and their insurers. The laws of other countries, notably of the United States of America, were less well disposed to their shipowning nationals. Different countries at different times legislated in relation to this matter and other connected topics in different ways.

One of the earliest attempts to secure uniformity of rules of law regarding maritime matters was successfully achieved by the Brussels Convention of 1910, unifying certain rules of law in regard to collisions at sea and salvage. But when Parliament gave statutory effect to those conventions by the Maritime [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Conventions Act 1911, that Act, while expressly referring to those two conventions in its preamble, and implicitly, of course, by its very title, not only did not schedule the texts of those conventions to the statute, but provided that that statute should be construed 'as one with the Merchant Shipping Acts, 1894 to 1907', which were purely domestic legislation.

So far as I have been able to trace the first occasion on which any convention text was scheduled to a United Kingdom statute was in the Carriage of Goods by Sea Act 1924. It is sometimes overlooked that the rules scheduled to that Act were those contained in a draft convention as amended (see the preamble to the Act), that Act having received the royal assent on 1st August 1924, and the final convention not having been signed until 25th August 1924. The official text both of the draft convention as amended and of the final convention was French, and the two texts are not identical. Thus the English text of the rules scheduled to the Act is but a translation from the French textof the draft convention. It is not, unlike the English text of the Warsaw Convention in Part I of Sch 1 to the 1961 Act, an authentic English text of the draft convention and still less is it the authentic English text of the final convention.

My Lords, it was not long before problems of interpretation of the Hague rules arose. What was meant by the phrase 'management of the ship' in art [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R iv(2)(a)? How was the word 'or' to be construed in art iv(2)(g) in the context of 'or without the fault or neglect of the agents or servants of the carrier', disjunctively or conjunctively? In Brown & Co Ltd v Harrison (1927) 96 LJKB 1025, [1927] All ER Rep 195 the Court of Appeal had no difficulty in construing the word 'or' as 'and', but neither they nor Wright J in Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1927] 2 KB 433 at 435 ever thought of looking at the French text of the draft convention, which when one looks at it today one might be forgiven for thinking afforded an easy guide to the same answer as that at which those courts arrived as a matter of construction, according to ordinary English principles. Indeed, when the Gosse Millerd case reached your Lordships' House ([1929] AC 223, [1928] All ER Rep 97) their Lordships construed the phrase 'management of the ship' in accordance with all the antecedent English precedents. Viscount Sumner, while accepting that these words appeared in an international convention, assumed that they were intended to be used in the judicially established sense (see [1929] AC 223 at 236-237, [1928] All ER Rep 97 at 103), and the House without doubt construed the Hague rules in the same manner as it would have construed any ordinary United Kingdom statute.

A slightly more liberal approach is, however, to be found in the speeches in your Lordships' House in Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328, [1931] All ER Rep 666. Your Lordships have referred to the well-known passage [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R in the speech of Lord Macmillan, and I will not again quote what he said. I would, however, add a reference to the speech of Lord Atkin on the same point (see [1932] AC 328 at 342-343, [1931] All ER Rep 666 at 673). But the House, notwithstanding that more liberal approach in theory, in practice applied the antecedent English decisions to the construction of art IV(4) of the Hague rules.

There matters remained for nearly a quarter of a century. It is notorious that in this period any attempts made by counsel to invite attention to the French text of the draft convention in order to construe the rules scheduled to the English Act were firmly discouraged by the courts and sometimes even made a matter of judicial reproof.

However, in Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 All ER 158, [1954] 2 QB 402, Devlin J had to construe art I(b) of the rules. Having stated his conclusion, he added ([1954] 2 All ER 158 at 165, [1954] 2 QB 402 at 421):

'I base this conclusion on the sense of the paragraph as a whole as well as on its punctuation. If there is any doubt the French text... makes it quite clear. Having regard to the preamble to the Act and the fact that the French text is the only authoritative version of the convention, I think, [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R notwithstanding the objection of counsel for the plaintiffs, that it is permissible to look at it. I agree that it is not conclusive, but it may help to solve an ambiguity if there be one. I agree also that, unless the court is assisted by a French lawyer, it should be looked at cautiously, but the appreciation of this particular point needs no more French than every schoolboy knows, and I think it would be pedantic to ignore it.' Thus to look at the French text was for the first time regarded as permissible in an English court.

My Lords, it will have been observed that the cases to which I have referred so far all arise from carriage by sea. At the time of all those cases save Pyrene, air carriage whether of goods or passengers was in its infancy. But, as air transport has developed, maritime law was an obvious source from which solutions of the novel problems of air transport law might be derived, and one has only to glance at some of the provisions of the Warsaw Convention to see whence their philosophy comes. It would not, therefore, be surprising to find words used in the convention whether one has regard to the French text or to the English text, or to both in the same sense as that in which those words had long been used in maritime law.

But the change foreshadowed in Pyrene was not limited to the approach of the courts in construing the Hague rules. In Salomon v Comrs of Customs and [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Excise [1966] 3 All ER 871, [1967] 2 QB 116 the Court of Appeal was concerned with a problem of valuation under the Customs and Excise Act, 1952. The relevant provisions had been enacted in fulfilment of an antecedent convention entered into in 1950. The Court of Appeal had no difficulty in holding that it was proper to look at the convention even though there was no express reference to it in the statute in order to determine the true meaning of the statute if that meaning were not clear from its own language. I refer to but do not quote from the judgment of Diplock LJ ([1966] 3 All ER 871 at 875-876, [1967] 2 QB 116at 142-145).

In Post Office v Estuary Radio Ltd [1962] 3 All ER 663, [1968] 2 KB 740 Diplock LJ giving the judgment of the Court of Appeal followed the previous decision in the Salomon case and once again the Court of Appeal found no difficulty in looking at the relevant convention, even though it was not referred to in the relevant Order in Council.

By the time, some ten years later, when your Lordships had to consider the problem once more in James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 3 All ER 1048, [1978] AC 141, my noble and learned friend Lord Wilberforce in agreement with your Lordships had no difficulty in holding that it was legitimate to look at the French text of the convention scheduled to the Carriage of Goods by Road Act 1965 if the English text were ambiguous (see [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R [1977] 3 All ER 1048 at 1052, [1978] AC 141 at 152).

That decision of your Lordships' House shows how changed the position had become at the end of the sixty year period to which I have referred from what it was at the beginning. In my judgment it is now clear law that where the source of the legislation in question is not the ordinary parliamentary process, but is an international treaty or convention and the statute is designed to give effect to that treaty or convention, it is legitimate to look at that source in order to resolve ambiguities in the legislation which has made those treaty or convention provisions part of the ordinary municipal law of this country.

But in the present case the relevant statutory enactment goes further. It enjoins the court in the event of inconsistency between the English and French text to allow the French text to prevail. How then is the court to perform its task once an issue of an alleged inconsistency arises? It may be that reference English word 'damage' where it appears in the understood shed clear light on the meaning of the English text. Clearly on the authorities as they now stand, that is a legitimate approach to the construction of the English text where any doubt arises as to the meaning of the latter text. In such a case there will be no inconsistency. But in the present case the alleged inconsistency is between the English word 'damage' where it appears in the relevant place in art 26(2) of the English text, and the French word 'avarie' in the corresponding place in the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R French text of that article. In order to determine whether there is an inconsistency, the court must be in a position to ascertain the meaning of both words.

'Damage' is an ordinary English word susceptible of several meaning according to the precise context in which the word is used. 'Avarie' is a French word also susceptible of several meanings according to its context. An English court will construe the word 'damage' as it will construe any other word which to the context in which the word is used. But it is required to interpret: according it is likely that the court will require extrinsic help in construing the French word. Like my noble and learned friend Lord Wilberforce, I decline to lay down any precise rules whence that help should come. If the judge concerned is possessed of some knowledge of the French language, it will be pedantic and perhaps also intellectually impossible to deny him the right to use that which he knows perfectly well. Once both French and Latin were languages in current use in our courts. Latin phrases still make a frequent appearance in our jurisprudence and a judge is perfectly free to use such knowledge of Latin as he may still possess in order to interpret and apply such a phrase. Why then should a different rule be applied in the case of a modern as opposed to an ancient language? Of course the same problem could arise hereafter with authentic texts of conventions in languages in less frequent use and therefore less well known in Western Europe than for example French or German. In such a case a judge [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R will be likely to require more help than in the case of those two languages. But a judge will usually be unlikely to be willing to rely solely on his own knowledge of the relevant language even if he be as well versed in that language as the learned trial judge concerned in the present case. Such a judge can always have recourse to dictionaries. He can have regard to the writings of learned writers on the relevant topic. He can have regard to judicial decisions of the courts of other countries concerned with the same problem. Such sources are clearly not exhaustive. I doubt whether in a case such as the present the evidence of an ordinary interpreter would greatly assist, though such evidence might be essential if the language were unknown or little known to the judge. But if for example in the present case oral evidence had been called from one or more of those learned writers extracts from whose written work is referred to in various of your Lordships' speeches I do not doubt that Kerr J and indeed the Court of Appeal would have derived much help from their evidence. I think it was evidence of this nature that Geoffrey Lane LJ had in mind in the opening paragraph of his judgment (see [1979] 3 All ER 445 at 458, [1980] QB 23 at 46). It would obviously be of greater help if the expert were bilingual though I would not regard that as essential since primarily his evidence would be directed to the meaning of the French text. Clearly such an expert must not tell the court how he thinks the court should decide the case, but he could give great assistance as to what he thought the true meaning of the relevant word was in the French language and how the sense of that meaning compared with the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R sense of the corresponding word used in the English text, the latter only of course if he were familiar with the English language.

In passing I would observe that in cases where as issue of inconsistency is said to arise there must be no question of one party taking the other by surprise. The meaning of a word in a foreign language is at least in most cases a question of fact and I would have thought ought to be specifically pleaded by the party asserting some special meaning. But, whether or not that be correct, clearly notice of any intention to raise such a point must be given to the other side is that each side can come to trial forewarned and forearmed with the evidence whether written or oral with which each proposes to assist the court.

If one has regard only to the English text of art 26(2) and construes the relevant word 'damage' in that article in strict English principles of construction I would be disposed to agree with Kerr J and with Browne and Geoffrey Lane LJJ that 'damage' is used in antithesis to 'partial loss' so that the former word does not include the latter expression, though with respect I do not think it right to construe 'damage' in this context by reference to such English authorities as the well-known line of ticket cases.

But, once the issue of inconsistency is raised, in my view no concluded view as to the meaning of the word on the English text can or should be reached [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R without first considering the meaning of the word 'avarie' in the French text. I unreservedly accept the warning of counsel for the respondent against the dangers of construing 'avarie' in the French text as equivalent to 'partial loss' because in an English marine insurance context 'average' is a synonym for 'partial loss'. Compare ss 64, 66 and 76 and r 13 of the rules of construction in Sch 1 to the Marine Insurance Act 1906 and the statement of Lord Esher MR in Price & Co v A 1 Ships' Small Damage Insurance Association (1889) 22 QBD 580 at 584 that '"Average" [in the context of marine insurance]... has a well established mercantile significance. It means a partial as distinguished from atotal loss'.

On the other hand 'partial loss' is a possible meaning of the word 'avarie' in the context of maritime law, and I have already mentioned that maritime law is a source of much modern air law. Your Lordships were referred to a member of decision of foreign courts. The industry of counsel and of the appellants' solicitors brought to the attention of your Lordships' House many such cases which had not been referred to in the courts below. Like other of your Lordships, I find little help in them for they are, naturally enough, not always consistent with each other and on occasions each learned counsel claimed a particular decision to be in his favour. On the other hand, like my noble and learned friends, I find the writings of the distinguished writers to whose works we were referred both in original and in translation most persuasive. Those [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R writings are detailed in the speeches of my noble and learned friends Lord Wilberforce and Lord Fraser, and I shall not repeat what they have quoted. I think, like my noble and learned friends, that those writings point strongly to the conclusion which all your Lordships have reached, that 'avarie' in this context includes 'partial loss'. Either therefore 'damage' in the English text must be construed so as to include 'partial loss', or there is an inconsistency and the French text as I would interpret it in the light of those writings must prevail. I do not think it matters by which route that conclusion is reached.

Clearly, therefore, the respondent should have lodged his claim within seven days. He did not do so.

This conclusion, as my noble and learned friend Lord Wilberforce has pointed out, makes it unnecessary to deal with the question of travaux preparatoires. But like all your Lordships I think this is a matter on which your Lordships' House should now express a view in the light of the full arguments to which your Lordships have listened. The question is dealt with at length in their speeches by my noble and learned friends Lord Wilberforce, Lord Diplock and Lord Scarman.I agree with them and only add a word on one point since my noble and learned friend Lord Fraser takes a different view from that taken by the majority of your Lordships. I see, if I may respectfully say so, the force of my noble and learned friend's observation on the difficulties into which the use of travaux [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R preparatoires may put the private citizen who wishes to bring an action in relation to such matters as those involved in the present case and who has not got and perhaps may not be able to get easy access to such highly specialised knowledge as will be contained in the documents which your Lordships are considering. But in practice I venture to question whether these disputes are likely to arise save between bodies such as cargo underwriters, airlines and the like, who will have been represented at the negotiations leading to a particular convention and who will be fully equipped with the necessary information. That is certainly the position in the present case.

The respondent did not give the relevant notice within seven days. I think, in agreement with Kerr J. that his claim must fail because of that failure for the reasons which the learned judge gave, which I respectfully and entirely adopt. I regret that I cannot agree with Lord Denning MR on this issue, nor with his use of the 1979 Act in order to construe the 1961 Act. I would therefore allow the appeal and order judgment to be entered to the appellants.


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