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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



Cases Referred to:


Judgment Read:

Judgment 1: Lord Wilberforce

Judgment 2: Lord Diplock

Judgment 3: Lord Fraser of Tullybelton

Judgment 4: Lord Scarman

Judgment 5: Lord Roskill



SiSU Metadata, document information


SiSU Manifest, alternative outputs etc.

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

Judgment 2: Lord Diplock

LORD DIPLOCK. My Lords, I understand your Lordships to be of one mind in thinking that in art 26 of the Warsaw Convention as amended at The Hague in 1955, which is set out in Sch 1 to the Carriage by Air Act 1961, the word 'damage' or 'avarie' in relation to passengers' baggage includes loss of part of the contents of a passenger's suitcase; and that the property irregularity report completed by Mr Fothergill on his arrival at Heathrow did not comply with the requirements of that article as respects the contents of his suitcase that [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R were missing. With this conclusion I agree. I would have reached it even without such extraneous aids as are provided by the preparatory work leading to the conclusion of the convention ('les travaux preparatories'), the commentaries of learned authors ('la doctrine'), or the decisions of foreign courts ('la jurisprudence'). I accept that both 'damage' and 'avarie' when looked at in isolation or in a context limited to the other words of the sentences in the English or French language in which they are respectively to be found in art 26 are words that are ambiguous. They are capable of bearing either a narrower meaning confined to physical harm to the subject matter of the damage or avarie, and this is the more usual meaning; or they may bear a more extensive meaning, with which avarie in particular is used as a term of legal art in connection with carriage by sea, as including also partial loss of the subject matter carried. But giving, as one must, a purposive construction to the convention looked at as a whole, I should have found myself able to resolve the ambiguity in favour of the more extensive, although less usual, meaning by reference to the language of the schedule to the Act of Parliament alone. I accept and adopt the reasons already stated by Lord Wilberforce for so interpreting the language of the Act.

The question that divides this House is whether, in interpreting art 26, it is legitimate to have recourse to the official minutes of the Hague Conference of 1955 at which the protocol to the Warsaw Convention of 1929 was agreed. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R This, as it seems to me, raises a question of constitutional significance as to the functions of courts of justice as interpreters of written law that is in force in the United Kingdom.

For present purposes I can confine my consideration to the interpretation of the language that appears in Acts of Parliament themselves, leaving aside, on the one hand, secondary legislation made pursuant to law-making powers that have been delegated by Act of Parliament to some subordinate authority and, on the other hand, regulations made by the institutions of the European Communities which are directly applicable in the United Kingdom, but in respect of which the ultimate interpretative function is vested in the Court of Justice of the European Communities by s 3(1) of the European Communities Act 1972. The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining 'the intention of Parliament'; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding on him and enforceable by the executive power of the state. Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible. The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely on that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation.

In purely domestic legislation not designed to give effect to community directives or to international conventions to which the United Kingdom is a party, the choice of the actual words that are most apt to express with clarity and precision the intention of the promoters of the Bill (generally the executive government) will have been that of parliamentary counsel. His advice will also have been available on the wording of any amendments that have been made to the Bill in the course of its passage through the two Houses of [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Parliament. The audience to whom the language that he chooses is addressed is the judiciary, whose constitutional function is to resolve any doubts as to what written laws mean; and the resulting Act of Parliament will be couched in language that accords with the traditional, and widely criticised, style of legislative draftsmanship which has become familiar to English judges during the present century and for which their own narrowly semantic approach to statutory construction, until the last decade or so, may have been largely to blame. That approach for which parliamentary draftsman had to cater can hardly be better illustrated than by the words of Lord Simonds LC in Inland Revenue Comrs v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641: 'The section... sect. 31 of the Finance Act, 1933, is clearly a remedial section... It is at least clear what is the gap that is intended to be filled and hardly less clear how it is intended to fill that gap. Yet I can come to no other conclusion than that the language of the section fails to achieve its apparent purpose and I must decline to insert words or phrases which might succeed where the draftsman failed.'

The unhappy legacy of this judicial attitude, although it is now being replaced by an increasing willingness to give a purposive construction to the Act, is the current English style of legislative draftsmanship. It is wary of laying down general principles to be applied by the courts to the varying [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R facts of individual cases rather than trying to provide in express detail what is to be done in each of all foreseeable varieties of circumstances. In the attempt to do this the draftsman will have taken account of technical and competing canons of construction that are peculiar to English written law; and will have relied heavily on precedent in his use of words and grammatical constructions and general layout used in earlier Acts of Parliament that have been the subject of judicial exegesis.

So far as purely domestic legislation is concerned it is well established as a principle of interpretation that, even where the words of a statute are ambiguous or obscure, the proceedings in Parliament during the course of the passage of the Bill may not be resorted to for the purpose of ascertaining what ambiguities or obscure provisions mean. The reasons why the nature of the parliamentary process at Westminster would make this an unreliable and inappropriate guide to the interpretation of a statute have been often stated by this House and need no repeating. So Hansard can never form part of the travaux preparatories of any Act of Parliament whether it deals with purely domestic legislation or not. Where the Act has been preceded by a report of some official commission or committee that has been laid before Parliament and the legislation is introduced in consequence of that report, the report itself may be looked at by the court for the limited purpose of identifying the 'mischief' that the Act was intended to remedy, and for such assistance as is derivable [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R from this knowledge in giving the right purposive construction to the Act. Only to this limited extent are what would in continental legal systems be classified as travaux preparatories, legitimate aids to the construction of an Act of Parliament of the United Kingdom which deals with what is purely domestic legislation.

It is, however, otherwise with that growing body of written law in force in the United Kingdom which, although it owes its enforceability within the United Kingdom to its embodiment in or authorisation by an Act of Parliament, nevertheless owes its origin and its actual wording to some prior law-preparing process in which Parliament has not participated, such as the negotiation and preparation of a multiateral international convention designed to achieve uniformity of national laws in some particular field of private or public law, which Her Majesty's government wants to ratify on behalf of the United Kingdom but can only do so when the provisions of the convention have been incorporated in our domestic law. The product of this law-preparing process is generally contained in texts expressed in several different languages all of which are of equal authenticity and can be looked at to clarify the meaning of any one of them. The Warsaw Convention of 1929 and its later protocols are exceptions inasmuch as the only authentic text is that expressed in the French language which is set out in the Carriage by Air Act 1961, Sch 1, Part II. [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R The language of that convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to 'les travaux preparatories', 'la doctrine' and 'la jurisprudence' as extraneous aids to the interpretation of the legislative text.

The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Actof Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 3 All ER 1048 at 1052, [1978] AC 141 at 152, 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation'.

My Lords, it would seem that courts charged with the duty of interpreting legislation in all the major countries of the world have recourse in greater [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R or less degree to travaux preparatories, or legislative history (as it is called in the United States) in order to resolve ambiguities or obscurities in the enacting words, though the extent and character of the extraneous material to which reference is permitted under this head varies considerably as between one country and another. As Lord Wilberforce has already pointed out, international courts and tribunals do refer to travaux preparatories as an aid to interpretation of treaties and this practice as respects national courts has now been confirmed by the Vienna Convention on the Law of Treaties of 1969 (Misc 19 (1971); Cmnd 4818), to which Her Majesty's government is a party and which entered into force a few months ago. It applies only to treaties concluded after it came into force and this does not apply to the Warsaw Convention and Protocol of 1955; but what it says in arts 31 and 32 about interpretation of treaties, in my view, does no more than codify already existing public international law. So far as needs citation here they read as follows:

'31. (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose...

'32. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.'

My Lords, the delegates of the states represented at the international conference at which the Hague Protocol to the Warsaw Convention was concluded may be taken to have known that 'the preparatory work of the treaty and the circumstances of its conclusion' could be taken into consideration in determining the meaning of the convention where the actual terms, even when read in their context and in the light of the treaty's object and purpose, leave the meaning still ambiguous or obscure. An example of their awareness of this is to be found in the minutes of the meaning of the conference on 20th September 1955 where, in relation to a vote taken on a proposed amendment to art 19, it is recorded:

'The President stated that, in the event of a negative vote on the proposal, the Conference would be understood as having stated that the word "unreasonable" was not necessary because it was already implied in Article 19 as at present drafted.' Accordingly, in exercising its interpretative function of ascertaining what it was that the delegates to an international conference agreed on by their majority vote in favour of the text of an international convention where that [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R text itself is ambiguous or obscure, an English court should have regard to any material which those delegates themselves had thought would be available to clear up any possible ambiguities or obscurities. Indeed, in the case of Acts of Parliament giving effect to international conventions concluded after the coming into force of the Vienna Convention on the Law of Treaties, I think an English court might well be under a constitutional obligation to do so. By ratifying that convention, Her Majesty's government has undertaken an international obligation on behalf of the United Kingdom to interpret future treaties in this manner and, since under our constitution the function of interpreting the written law is an exercise of judicial power and rests with the courts of justice, that obligation assumed by the United Kingdom falls to be performed by those courts.

My Lords, although each of your Lordships would, I believe, have reached the same conclusion that in art 26 of the Warsaw Convention (as amended) 'damage' or 'avarie' in the case of passengers' baggage does not include partial loss of contents, even if no recourse is had to any travaux preparatories, it would, in my view, be unrealistic to deny that the language of the article is ambiguous, seeing that Kerr J and two of the members of the Court of Appeal ascribed a narrower meaning to it. So I think the case is one where it is right to have recourse to the minutes of the conference at The Hague to see if they confirm or contradict or contain nothing capable of affecting the prima facie view which [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R consideration of the terms of the convention itself has led your Lordships to form as to the meaning which the expression 'damage' in art 26 was intended to bear.

This said, I do not myself derive any great assistance from this source. With some personal experience of international conferences of this kind, I should not attach any great significance to the fact that two delegates in withdrawing an amendment to art 26 which would have included in the article an express reference to partial loss as well as to damage said, without contradiction by any other delegates who happened to be present at that time, that they did so on the understanding that partial loss was included in the expression damage. Machiavellianism is not extinct at international conferences. For what it is worth, however, it tends to confirm the prima facie view at which your Lordships had already arrived; and there is nothing else in the minutes of the proceeding which contradicts it.

My Lords, I can deal much more briefly with 'la doctrine' and 'la jurisprudence'. Those commentaries by learned authors on the text of the convention to which your Lordships have been referred were published after the convention had been concluded. They did not precede it; the delegates cannot have taken them into account in agreeing on the text. To a court interpreting the convention subsequent commentaries can have persuasive value only; they do [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R not come into the same authoritative category as that of the institutional writers in Scots law. It may be that greater reliance than is usual in the English courts is placed on the writings of academic lawyers by courts of other European states where oral argument by counsel plays a relatively minor role in the decision-making process. The persuasive effect of learned commentaries, like the arguments of counsel in an English court, will depend on the cogency of their reasoning. Those to which your Lordships have been referred contain perhaps rather more assertion than ratiocination, but for the most part support the construction favoured by your Lordships.

As respects decision of foreign courts, the persuasive value of a particular court's decision must depend on its reputation and its status, the extent to which its decisions are binding on courts of co-ordinate and inferior jurisdiction in its own country and the coverage of the national law reporting system. For instance your Lordships would not be fostering uniformity of interpretation of the convention if you were to depart from the prima facie view which you had yourselves formed as to its meaning in order to avoid conflict with a decision of a French court of appeal that would not be binding on other courts in France, that might be inconsistent with an unreported decision of some other French court of appeal and that would be liable to be superseded by a subsequent decision of the Court of Cassation that would have binding effect on lower courts in France. It is no criticism of the contents of the judgments [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R in those foreign cases to which your Lordships have been referred if I say that the courts by which they were delivered do not appear to me to satisfy the criteria which would justify your Lordships in being influenced to follow their decisions in the interest of uniformity of interpretation.

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