Airbus Industrie GIE v Patel

JurisdictionEngland & Wales
Judgment Date31 July 1996
Judgment citation (vLex)[1996] EWCA Civ J0731-13
Docket NumberQBCMF 96/0734/B
CourtCourt of Appeal (Civil Division)
Date31 July 1996
Airbus Industrie G.i.e.
Plaintiff (Appellant)
(1) Jaisukh Arjan Bhai Patel
(2) Neeta Jaisukh Patel
(3) Deena Jaisukh Patel, an Infant, by Jaisukh Arjan Bhai Patel, Her (Father and) Next Friend
(4) Ratna Kunverji Patel Alias Vaghjiani
(5) Valbai Ratna Patel Alias Vaghjiani
(6) Tulsi Bhanji Vaghjiani, an Infant, by Ratna Kunverji Patel Alias Vaghjiani, Her (Grandfather and) Next Friend
Defendants (Respondents)

[1996] EWCA Civ J0731-13


Lord Justice Nourse

Lord Justice Hobhouse

Lord Justice Aldous

QBCMF 96/0734/B






(Mr. Justice Colman)

Royal Courts of Justice

MR. M. CRANE QC and MR. A. SHAH (instructed by Messrs. Cameron Markby Hewitt, London EC3) appeared on behalf of the Appellant Plaintiff.

MR. J. RUSSELL QC and MR. P. MELWANI (instructed by Messrs. Clyde & Co., London EC3) appeared on behalf of the Respondent Defendants.


Wednesday, 31st July 1996


In these proceedings started by an originating summons, issued on 3rd November 1995, Airbus Industrie GIE have claimed declaratory and injunctive relief against a number of English passengers (or their representatives) who were injured or killed in an air crash which occurred in India on 14th February 1990. On 23rd April of this year Colman J refused to grant Airbus Industrie the relief for which they were asking and Airbus Industrie have now appealed to this court. The relevant question in this court is whether the respondents, whom I will call the English Claimants, should be restrained by injunction from prosecuting further an action they have started against Airbus Industrie in Brazoria County, Texas, on the grounds that those proceedings are vexatious and oppressive. Colman J accepted that he had jurisdiction to grant such an injunction but, in the exercise of his discretion having regard to what he considered was the extent of the prejudice to Airbus Industrie and the advantages to the English Claimants in litigating in Texas, concluded that it was not appropriate to grant the requested injunction. The submission of Airbus Industrie in this court is that the Judge wrongly evaluated the position and did not correctly apply the relevant principles; the English Claimants, whilst resisting the appeal, also seek to uphold the refusal of the grant of any injunction on the grounds that Colman J should have declined jurisdiction.


The Crash:


At 11.58 local time, Indian Airlines flight IC 605 took off from Bombay on a domestic flight to Bangalore. On board there were 5 cabin crew and 135 passengers and 4 infants. The aircraft was an Airbus A320. During its final approach to land at Bangalore, the aircraft struck the ground some 750 yards short of the runway. It eventually came to rest just outside the boundary of the airport, badly damaged, and caught fire.


92 persons on board including the two pilots and two cabin crew lost their lives. No one escaped uninjured. Seeing that the flight was an internal domestic flight most of those on board lived in India. However among the passengers there were two families who were British citizens living in London. They were on holiday in India at the time, no doubt visiting relatives. Four of these English passengers lost their lives and four were injured. They are, or are represented by, the six respondents to the originating summons. It seems that the passengers also included three Americans, two from Maryland and one from some other state in the United States (not Texas); all three died.


The aircraft involved was assembled by Airbus Industrie in Toulouse in late 1989 and was exported to India in December of that year. Indian Airlines is a domestic airline which does not fly internationally. The aircraft's airworthiness certificate was issued by the Indian authorities. By the time of the accident it had completed a total of over 370 hours flying time without material incident. After delivery, its only flights had been in India. It had never visited the United States. Its crew were Indian nationals primarily trained in India but the pilots had undergone some training in France. Neither of the pilots had any connection whatsoever with the United States.


After the crash a board of enquiry was set up under the chairmanship of an Indian High Court Judge. The board of enquiry carried out extensive investigations and heard evidence. Its conclusion was that during the period preceding the time when the aircraft struck the ground it had been in "idle/open descent" mode. This is a mode which allows the aircraft to descend in a glide with the engines idling. It was the conclusion of the board of enquiry that this was because the pilots had mistakenly instructed the aircraft to descend to 700 feet altitude instead of instructing it to descent at a rate of 700 feet per minute vertical speed. The knobs for setting altitude and vertical speed were adjacent to each other in the cockpit. The board further concluded that the pilots failed to observe their error until it was too late to regain thrust from the engines. The board expressly negatived any failure of any part of the aircraft, its controls or its engines. The board had extensive comments and recommendations to make to reduce the risk of similar accidents. The board criticised the company, 'HAL', running Bangalore airport for its failure to have adequate procedures to deal with a crash and the need to extinguish a fire. It considered that the loss of life and injuries had been aggravated by such failure. There was nothing in the report of the board of inquiry which attributed blame to Airbus Industrie.


The Litigation:


The English Claimants instructed London solicitors to pursue claims on their behalf. The report of the board of enquiry was published in December of 1990. Their primary claim was against the airline. There is a two year time limit under the relevant Indian legislation. By the beginning of February 1992, a settlement of their claim against Indian Airlines had not been achieved. So on 12th February 1992 proceedings were issued on their behalf. In India they sued the airline and the airport company, HAL. In Texas, they sued a large number of parties who might have had some connection, however remote, with some aspect of the aircraft or its operation. One of those they sued in Texas was Airbus Industrie. The American passengers also started similar proceedings in Texas.


On 6th March 1992 the English Claimants concluded a settlement with the airline for the full amount of the relevant limit of the airline's liability. They realistically took the view that they would not be able to break the limit. This resulted in a combined recovery of some £120,000. Although the settlement provided for the airline to pay their costs, the sums which the English passengers had already paid, apparently on medical expenses, flights, etc, meant they were left with a sum in hand which did not exceed about £75,000. The action of the English Claimants against HAL is continuing in India but does not appear to have been pressed vigorously and has not made much progress.


In Texas there have been complicated procedural manoeuvres with the transfer of the various actions from one court to another and their consolidation. It is not necessary for me, any more than it was for Colman J, to describe them in detail. What is relevant is that on 26th May 1993 Airbus Industrie abandoned its challenge to the personal jurisdiction of the Texas courts. It appears that this was a realistic concession for Airbus Industrie to make since personal jurisdiction is very easily established in Texas. As regards Airbus Industrie it apparently was sufficient that it had at some time in the past done business with a Texas based corporation, for example, selling an aircraft to an airline which had its corporate head office in Texas. It is not necessary for the purposes of the jurisdictional law of Texas that the relevant party has any actual presence in the state or that the relevant transaction the subject matter of the proposed litigation have any connection with the State of Texas. Texas law also, at the material time, provided no basis upon which its jurisdiction, or the continuation of proceedings in its courts, could be challenged on the basis of forum non conveniens. Thus it was irrelevant that neither Airbus Industrie nor any of the claimants had any actual connection with Texas nor was it relevant that the subject matter had no connection and that no relevant witness or evidence was to be found in the State of Texas. Airbus Industrie does not dispute that its acceptance of the personal jurisdiction of the Texas courts was voluntary for the purposes of the rules of private international law.


However, Airbus Industrie did reserve and pursue its other challenges to the jurisdiction of the Texas courts of which the only one presently relevant is that which arises under the US Foreign Sovereign Immunity Act. It appears that this Act entitles corporations which are more than 50% government owned to claim sovereign immunity. Airbus Industrie says that it is such a corporation. On 9th February 1995, the Texas State District Court upheld the objection of Airbus Industrie to its jurisdiction on this ground and dismissed all proceedings which had been brought against Airbus Industrie in the courts of Texas. The English Claimants, along with the American claimants, have appealed that decision. The appeal hearing was in May 1996 and the decision of the appeal court is awaited.


The present position therefore in Texas is that all proceedings against Airbus Industrie in that State have been...

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    ................................................................................................. 97 Airbus Industrie G.I.E. v. Patel, [1997] 2 Lloyd’s Rep. 8, [1997] C.L.C. 197, [1997] I.L. Pr. 230 (C.A.), rev’d (1998), [1999] 1 A.C. 119, [1998] 2 W.L.R. 686, [1998] 2 All E.R. 257 (H.L.) ..........
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