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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 3: Lord Fraser of Tullybelton

LORD FRASER OF TULLYBELTON. My Lords, I need not repeat the facts in this appeal which are in small compass and have been explained by my noble and learned friend Lord Wilberforce. The appeal raises two questions on the construction of the Warsaw Convention, as amended at The Hague in 1955, all as now set out in Sch 1 to the Carriage by Air Act 1961 ('the convention').

The first question is whether the word' damage' in art 26(2) of the convention includes loss of some of the contents of baggage, with the result that the owner cannot claim for the loss unless he has complained to the carrier within seven days of receipt of the baggage. If damage does include partial loss, the second question is whether the appellant made sufficient complaint in this case. The Carriage by Air Act 1961 provides in s 1(1) that the convention 'as set out in the First Schedule to this Act' shall have the force of law in the United Kingdom'. By s 1(2) it provides: 'If there is any inconsistency [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R 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.'

Clearly an English court must consider first the text in English and I shall do so. Article 26 has already been quoted in full by my noble and learned friend Lord Wilberforce, and I do not repeat it. The respondent contends that the word 'damage' in art 26(2) applies only to the physical damage to his suitcase and not to the loss of contents, because the latter is not damage but partial loss. On a literal reading of the words I agree with Kerr J and with Browne and Geoffrey Lane LJJ that the respondent's contention is correct. That was apparently the view of the appellants whose tickets contained a notice informing passengers (presumably in compliance with art 4(1)(c) of the convention) that '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.' (Emphasis added.)

But we are here concerned with construing an Act which gives effect to, and actually incorporates, an international convention, and for that purpose a strictly literal construction is not appropriate. Applying the broad principles of construction which are appropriate (see per Lord Macmillan in Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328 at 350, [1931] All ER Rep 666 at 677) 1 am left in doubt whether 'damage' was used in a wider sense to include partial [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R loss or not. There is much to be said for the wider construction. Article 26 of the convention forms part of a package deal to hold the balance fairly between carriers by air, on the one side, and passengers and consignors of cargo, on the other. The main elements of the package, so far as passengers are concerned, begin with art 18 which makes the carrier liable for damage sustained in the event of destruction or loss of or damage to any registered baggage, without proof of fault on his part. The only way that the carrier can completely escape liability under art 18(1) is by proving that he has taken all necessary measures to avoid the damage, or that it was impossible for him to take such measures (see art 20). But this liability is limited in amount by reference to the weight of the registered baggage or cargo (see art 22(2)(a)). Article 22(2)(b) contains the only reference to the contents of baggage or cargo. It provides as follows:

'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 package concerned...' (Emphasis added.)

The English text of that paragraph is not very happily worded, but its meaning is clear enough, and it recognises that baggage or cargo consists of the whole package, both container and contents. That is sensible, especially as the contents will usually be more valuable than the container. It is difficult to [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R see why it should be necessary to complain forthwith about damage to the container but not about loss of all or part of its contents; yet that would be the result if the respondent's contention is successful. There are at least two reasons for requiring complaints to be made promptly. One is to enable the carrier to make inquiries into the loss or damage while there is still hope of discovering how it occurred and of recovering anything lost, and the other is to enable him to check the bona fides of the complainer. Both reasons apply just as much to contents as to the container. It is true that complaint is not required in case of total loss, but that is probably because total loss will inevitably be brought to the notice of the carrier when the person entitled to delivery fails to obtain it. The absence of a requirement for complaint in the case of total loss therefore does not effect the argument that in case of partial loss complaint is necessary.

For these reasons the meaning of 'damage' in art 26(2) of the English text is, in my opinion, ambiguous. It therefore becomes necessary to refer to the French text. Such reference would have been proper even if the French and English texts had been equally authentic, and it is essential in this case, where the French text is to prevail. But even in this case it would not be necessary to refer to the French text unless either (1) the English text was ambiguous or (2) the court was invited by one or both parties to refer to the French text for the purposes of considering an alleged inconsistency between [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R the French and the English texts. I do not think that the judge has a duty to search out inconsistencies for himself, although if he happened to notice what he thought was an inconsistency he should invite argument on it.

On the question of how reference to the French text is to be made, I respectfully agree with the view expressed by Lord Wilberforce in James Buchanan& Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 3 All ER 1048, [1978] AC 141 at 152 that precise rules are inappropriate. Certainly a rule that the judge should not be permitted to refer to the French text without evidence from qualified experts would be unreasonably restrictive. When the judge's personal knowledge of French, or other relevant foreign language, is inadequate for the immediate task, he should rely on dictionaries, or, if they are not sufficient, on evidence from qualified experts, as seems to him appropriate in the particular case.

In the present case the French word to be considered is 'avarie'. The English word 'damage' is used throughout the convention in two senses. In some places it is used to mean economic loss (eg in art 18(1) where firstly and thirdly occurring), and the corresponding word in French in those places is 'dommage'. In other places (eg in art 18(1)) where secondly occurring, 'damage' is used in the sense of physical injury, and in those places the French equivalent is 'avarie'. We were referred to several French dictionaries from [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R which I learn that 'avarie' is derived from that same root as the English word 'average' and that it has various meanings including, in maritime law, damage and loss. But the dictionaries do not satisfy me that it unambiguously means partial loss, such as occurred here, and several writers learned in French law, to whose works we were referred, apparently do not consider that it does. One such writer is Professor Rodiere, Professor of Maritime and of Transport Law in the Faculty of Law in Paris. Writing in Transport Law, published in Paris in 1977, with reference to art 26(2), Professor Rodiere says (in translation): 'The text thus relates only to average [avarie]. In my view, it must be extended to the partial loss...' (for reasons which he explains).

Professor Emmanuel du Pontavice, Professor of the Faculty of Law and Economic Science of Nantes, in an article entitled 'Air Law', published in (1968) 21 Revue Tremestriel de Droit Commerciale, referred to a decision by the Federal Chamber of Buenos Aires that a partial loss by theft constituted an average in the sense of art 26(2) and said:

'This judgment must be approved. In particular, the judgment carefully distinguishes between total loss, which comes under Article 13(3) of the Warsaw Agreement, and partial loss deriving from theft, which must be assimilated to the average.' [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R If'avarie' meant partial loss without ambiguity, there would be no need to 'extend' its application or to 'assimilate' partial loss to it. Accordingly, I do not consider that reference to the French text and the use of French dictionaries and commentaries on the word 'avarie' remove the ambiguity of the English text. Nor do the decisions of foreign courts show, in my opinion, that there was a corpus of foreign law that we ought to place on this matter.

On the other hand I do consider that the writings of the learned authors from abroad to which we are referred, strongly support the purposive construction of art 26(2) which would, in any event, have been possible for an English court construing the English text alone. On this matter I entirely agree with my noble and learned friend Lord Wilberforce, and I would adopt his reasoning, and his conclusion that we should hold that partial loss of contents is included in 'damage' in art 26(2).

That would be enough to dispose of the appeal, but, having regard to the use that was sought to be made, on behalf of the appellants, of travaux preparatories, I wish to refer to that matter. It may be legitimate for English courts, when construing an Act of Parliament which gives effect to an international agreement, to make cautious use of the travaux preparatories for the purpose of resolving any ambiguity in the treaty: see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R at 837, [1975] AC 591 at 640 per Lord Diplock. Even if that be so, we are in this case being invited to go a stage further and I for my part would decline todo so. We were invited to refer to the minutes of the Hague Conference of 1955,at which the protocol to amend the Warsaw Convention of 1929 was agreed, for the purpose of finding there recorded an agreement between the states represented at the conference that 'damage' in art 26(2) was to be construed as including partial loss. It was said to be the duty of British courts to give effect to the alleged agreement. I shall assume, for the moment, that such an agreement is recorded in the minutes, although in fact I do not think it is. Making that assumption, I am of opinion that we should decline to give effect to the alleged agreement or to take judicial notice of it, because it has not been sufficiently published to persons whose rights would be affected by it, such as Mr. Fothergill, the respondent. They ought to be entitled to rely on the texts, English and French, scheduled to the Act, without finding that the meaning of the text is controlled by some extraneous agreement of which they have no notice. If the meaning of an expression in an Act of Parliament, giving effect to a treaty which directly affects the rights of private citizens, has been defined by some extra-statutory agreement between the British government and other governments, I do not think the definition ought to be applied as part of English law unless it has been published to the same extent as the Act, as if it were an interpretation clause in the Act, which is what in substance it is. True, the minutes of the Hague Conference were published by the International [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R Civil Aviation Organisation in 1956, in English, French and Spanish, and were on sale at Her Majesty's Stationery Office. Whether they are (or were in March 1975) still obtainable there I do not know, though I have my doubts. In any event, they have never been as readily accessible as the Act itself, and in my opinion they have never been reasonably accessible to private citizens, or even to lawyers who do not happen to specialise in air transport law. To treat an agreement buried in such material as capable of containing a binding definition of an expression in a statute, seems to me to offend against the basic principle that 'It is requisite that the resolution [of the legislator] be notified to the people who are to obey it' (see 1 Bl Com 45-46). I agree with Browne LJ that that passage is very apposite. The fact that the parties with the real interest in this appeal happen to be insurers who are probably familiar with the minutes in question does not, in my opinion, affect the principle.

It is not as if there would be any difficulty in publishing an international agreement on the construction of a treaty. A declaratory provision could be included in the Act of Parliament giving effect to the treaty. That has now been done on this very point, by the Carriage by Air Act 1979, s 2(1), although that Act can have no bearing on the construction of the 1961 Act for the present purpose. An agreement, such as is alleged to have been made in this case, must be fairly short and precise, and it differs in that respect from information about the legislative history of the convention which might be found in [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R travaux preparatories, or in the report of the official rapporteur of a conference. Such information, as Kerr J said, 'cannot conveniently be compressed into the text of the convention' (see [1977] 3 All ER 616 at 624, [1978] QB 108 at 119). It might be equally inappropriate for inclusion in an Act of Parliament. I am not here concerned with information of that sort, but only with an agreement, or a precisely stated understanding, on the construction of a word or a phrase in a convention. I can conceive of no good reason why the agreed construction should not be expressly set out in an interpretation section of the statute giving effect to the convention. If that is not to be obligatory, as in my opinion it ought to be, then at the very least the statute should draw attention to the agreement. I agree with Kerr J that the statute should expressly provide that any report by an official rapporteur may be referred to as an aid to its interpretation. That would at least draw attention to the existence of such a document.

The Vienna Convention on the Law of Treaties (Misc 19 (1971); Cmnd 4818), dated 23rd May 1969, had not received sufficient ratifications to come into force by the date with which this appeal was concerned, and accordingly it is not relevant to the present question. But it will apply to future treaties, and he British government, by ratifying it, may have undertaken that future treaties will be interpreted in accordance with the rules stated in the convention. If so, it seems to me that the only way the government can implement its [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R understanding is by ensuring that the legislation for giving effect to future conventions is properly drafted and, in particular, that it expressly sets out any agreed definitions. If that is not done, my conclusion would be that the government had failed to carry out its undertaking.

With regard to the question of whether there was an agreement at the Hague conference on the construction of the word 'damage' in art 26(2), the minutes show that there was discussion in which some delegations expressed the view that damage clearly included partial loss and others (including the British) expressed the opposite view. At a meeting on 27th September 1955, the delegate from the Netherlands proposed, seconded by the Swedish delegate, the addition of the words 'or partial loss' after the word 'damage'. The minutes record that eventually they 'withdrew their proposal on the understanding that the word "damage" was to be understood as including the words "partial loss"'. But the minutes do not show that that understanding was generally accepted, or that it was given official recognition by the president; it is to be contrasted with an understanding relating to art 19 of which the minutes of a meeting on 20th September 1955 record that

'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 [1981] AC 251, [1980] 2 All ER 696, [1980] 3 WLR 209, [1980] 2 Lloyd's R drafted.' Accordingly, if it was necessary, I would hold that the alleged agreement or understanding relating to art 26(2) has not been established.

It follows from what I have said that, in my opinion, the respondent's claim against the carrier is dependent on his having complained to them, at latest, within seven days from receipt of his baggage, that some of the contents had been lost. I do not consider that the entry on the property irregularity report form was sufficient to cover loss of contents. It gave no hint that such loss had occurred, and indeed, by referring only to damage to the suitcase, it implied that that was the only matter of complaint. I entirely agree with the opinion of Kerr J to the effect that ([1977] 3 All ER 616 at 624, [1978] QB 108 at 120)

'the complaint must relate to the claim which the passenger is seeking to enforce. It must give sufficient notice to the carrier to enable him to make the relevant enquiries.'

For these reasons I would allow the appeal.

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