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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

Catchwords:

Headnote:

Summary
Held
Notes:
Cases Referred to:

Introduction:

Counsel:
Judgment Read:
Panel:

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

copy @ Lex Mercatoria

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

Headnote:

9

The plaintiff flew from Rome to Luton on an aircraft operated by the defendant airline. The carriage was 'international carriage', within art 1 of the Warsaw Convention, as amended at The Hague in 1955 and as set out in Sch 1 to the Carriage by Air Act 1961. The plaintiff's ticket incorporated a baggage check which, as required by art 4(1) of the convention, contained a provision stating: 'In case of damage to baggage... complaint must be made in writing to carrier forthwith after discovery of damage and, at the latest, within 7 days from receipt.' When the plaintiff claimed his baggage he noticed that one side seam of his suitcase had been completely torn away. He reported it to an official of the airline and a 'property irregularity report' was completed which described the suitcase and, under the heading 'Nature of Damage', stated: 'Side seam completely parted from case. Damage occurred on inbound flight.' More than seven days later, the plaintiff discovered that some articles were missing from the suitcase. He claimed L12 in respect of the damage to the suitcase and L16.50 in respect of the lost articles. The airline admitted liability as to the L12 but rejected the claim for L16.50, contending that the loss of the articles constituted 'damage', within art 26(2) a of the convention, and the plaintiff had failed to give notice in writing of that damage within seven days from the date of receipt of the suitcase, as required by art 26(2) and (3). The airline supported their contention that the word 'damage' in art 26(2) included loss of contents by reference to the published minutes of the negotiations of [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R the Hague Protocol in 1955. The judge ([1977] 3 All ER 616) upheld the plaintiff's claim on the ground that 'damage' in art 26(2) referred to physical injury to baggage and did not include loss of articles from a suitcase, but went on to decide that, had notice been required, the notice given by the plaintiff was insufficient since it merely related to the damage to the suitcase and made no reference to the missing articles. On appeal by the airline the Court of Appeal ([1979] 3 All ER 446) held that as a matter of ordinary English the term 'damage' in art 26 referred only to physical injury to baggage did not extend to partial loss of contents. The airline appealed to the House of Lords.

a. Article 26 is set out at p. 698 g to j, post

12

Held - Although on a literal interpretation in an English legal context 'loss' was to be differentiated from 'damage', that was not an appropriate method of interpretation of an international convention, such as the Warsaw Convention, which was incorporated by statute into English law. Instead, a purposive construction was to be adopted, and that was reinforced by the fact that the English and French texts were inconclusive whether damage included loss, and was supported by the consensus of international jurists. Having regard, therefore, to the purpose of art 26 of the convention, which was to ensure that the airline received prompt notice to enable it to take the necessary steps in regard to damage to baggage or cargo including, if [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R possible, recovery of objects lost, on its true construction art 26 applied both to damage to baggage (and the contents) and to loss of contents. The plaintiff was therefore required to lodge a complaint for the lost articles within seven days of receiving his baggage, and as the only complaint he had made did not refer to the loss of any articles but only the damage to his suitcase his claimed failed. The airline's appeal would accordingly be allowed (see p 699 h to p 700 c, p 701 j to p 702 a, p 704 a to f, p 708 a, p 709 c d, p 710 d e, p 712 a to d and j to p 713 c, p 716 e to h and p 720 h to p 721 a and d e, post). Observations on the use of travaux preparatories in the interpretation of international conventions forming part of English law (see p 702 d, p 703 f to j, p 704 h to p 705 b, p 706 a b and e to p 707 e, p 712 c d, p 715 e to p 716 cand p 721 a to d, post).

Decision of the Court of Appeal [1979] 3 All ER 445 reversed.

15

For time limits for complaints and claims of damage or delay to baggage or cargo, see 2 Halsbury's Laws (4th Edn) para 1395, and for cases on carriage of baggage and goods by air and liabilities of carriers, see 8(2) Digest (Reissue) 603-605, 29-37. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R

For the interpretation of treaties, see 18 Halsbury's Laws (4th Edn) paras 1792-1794, for the construction of statutes giving effect to international agreements, see 36 Halsbury's Laws (3rd Edn) 394, para 592, and for cases on the subject, see 44 Digest (Repl) 228, 461-462.

For the Carriage by Air Act 1961, Sch 1, see 2 Halsbury's Statutes (3rd Edn) 612.

19

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, [1975] AC 591, [1975] 2 WLR 513, [1975] 2 Lloyd's Rep 11, HL; rvsg [1974] 2 All ER 611, [1974] QB 660, [1974] 2 WLR 789, [1974] 1 Lloyd's Rep 573, CA, Digest (Cont Vol D) 108, 1591a.

Brown & Co Ltd v Harrison, Hourani v Harrison (1927) 96 LJKB 1025, [1927] All ERRep 195, 137 LT 549, 17 Asp MLC 294, 32 Com Cas 305, CA, 41 Digest (Repl) 313, 1189.

Buchanan (James) & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 3 All ER 1048, [1978] AC 141, [1977] 3 WLR 907, [1978] 1 Lloyd's Rep 119, HL; affg [1977] 1 All ER 518, [1977] QB 208, [1977] 2 WLR 107, [1977] 1 Lloyd's Rep 234, CA.

Bulmer (HP) Ltd v J Bollinger SA [1974] 2 All ER 1226, [1974] Ch 401, [1974] 3 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R WLR 202, CA, Digest (Cont Vol D) 316, 1.

Day v Trans-World Airlines Inc (1975) 528 F 2d 31.

Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd, The Canadian Highlander [1929] AC 223, [1928] All ER Rep 97, 98 LJKB 181, 140 LT 202, 17 Asp MLC 549, 34 Com Cas 94, 32 Ll L Rep 91, HL; rvsg [1928] 1 KB 717, 97 LJKB 193, 138 LT 421, 29 Ll L Rep 190, CA; rvsg [1927] 2 KB 432, 97 LJKB 193, 138 LT 421, 30 Digest (Reissue) 284, 922.

Inland Revenue Comrs v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637, 175 LT 22, 27 Tax Cas 331, HL, 28(1) Digest (Reissue) 138, 414.

Lorans v Air France (1977) 31 RFDA 268; (1972) D. 1973.361 reaffd D. 1977.89.

Porter v Freudenberg, Kreglinger v Samuel and Rosenfeld, Re Merten's Patents [1915] 1 KB 857, [1914-15] All ER Rep 918, 84 LJKB 1001, 112 LT 313, 20 Com Cas 189, 32 RPC 109, CA, 50 Digest (Repl) 326, 558.

Post Office v Estuary Radio Ltd [1967] 3 All ER 663, [1968] 2 QB 740, [1967] 1 WLR 1396, [1967] 2 Lloyd's Rep 299, CA, 14(1) Digest (Reissue) 163, 1150. Price & Co v A 1 Ships' Small Damage Insurance Association Ltd (1889) 22 QBD 580, 58 LJQB 269, 61 LT 278, 6 Asp MLC 435, CA, 29 Digest (Repl) 287, 2165.

Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 All ER 158, [1954] 2 QB402, [1954] 2 WLR 1005, [1954] 1 Lloyd's Rep 321, 41 Digest (Repl) 237, 593.

Salomon v Customs and Excise Comrs [1966] 3 All ER 871, [1967] 2 QB 116, [1966] 3 WLR 1223, CA, Digest (Cont Vol B) 621, 77a. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R

Schwimmer v Air France (1976) 384 NYS 2d 658, 14 Avi 17, 466.

Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328, [1931] All ER Rep 666, 101LJKB 165, 146 LT 305, 18 Asp MLC 266, 37 Com Cas 54, HL, 41 Digest (Repl) 379, 1698. Ulster-Swift Ltd v Taunton Meat Haulage Ltd [1977] 3 All ER 641, [1977] 1 WLR 625, CA.


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