Antwerp United Diamonds BVBA and Another v Air Europe (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,Lord Justice Otton |
| Judgment Date | 22 April 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0322-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 1995 |
| Docket Number | NO: QBCMF93/0087/B |
[1995] EWCA Civ J0322-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(Mr Justice Phillips)
Before: Lord Justice Butler-Sloss Lord Justice Hirst and Lord Justice Otton
NO: QBCMF93/0087/B
MR A COLLINS QC & MR H DAVIES (instructed by Beaumont & Son, London EC1 8AW) appeared on behalf of the Plaintiff
MR A SHAH appeared for MR R WEBB QC (instructed by Barlow Lyde & Gilbert, London EC3A 7NJ appeared on behalf of the Defendant
Wednesday 22nd March 1995
This is an appeal by the appellants Air Europe against the decision of Phillips J. in the Commercial Court on 18th December 1992, whereby he resolved a preliminary issue in favour of the respondents Antwerp United Diamonds BVBA and the Excess Insurance Company Ltd, who sued on their own behalf and on behalf of all other insurers subscribing to insurance policy No JA 7902090009.
The question at issue turns on the construction of Articles 22 and 25 of the Warsaw Convention as amended by the Hague Protocol of 1955 (the Convention), which was given the force of law in England under the Carriage by Air Act 1961.
The first plaintiffs are the owners of a consignment of diamonds which the defendants agreed to carry by air from Zerventum Airport, Brussels to Gatwick Airport, London. The second plaintiffs are their insurers. The carriage was subject to the Convention. At the time when the diamonds were delivered to the defendants the consignor in the waybill made a special declaration of interest in delivery at destination in the sum of 10,000 Belgian Francs, equivalent to about £200. This was only a fraction of the true value of the diamonds, which the respondents claim was over $70,000.
This declaration was made under paragraph (2)(a) of Article 22, from which I now quote the relevant paragraphs as follows:-
"(1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
"(2)-(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.
"(4) The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later."
Article 25 of the Convention provides as follows:-
"The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment."
By their Points of Claim the Respondents allege that the diamonds were lost by reason of conduct on the part of the defendants their servants or agents of the kind described in Article 25, and that in consequence their claim is not limited to 10,000 Belgian Francs; and they seek to recover the full loss which they actually sustained, ie, the full value of the consignment and/or damages at large.
The defendants contest this claim, and submit that Article 25 has no application in the present context, on the footing that a special declaration of interest under Article 22(2)(a) does not constitute one of the "limits of liability specified in Article 22".
As a result, by mutual consent of the parties, an order was made for the trial of the following question as a preliminary issue:-
"Where a Plaintiff has made a special declaration of interest in accordance with Article 22(2)(a) of the Convention may he recover in excess of the sum specified in that declaration, (assuming his interest in the cargo otherwise so permits) where the limits of liability specified by Article 22(2)(a) are found not to apply by reason of proof of conduct on the part of the carrier of the sort described in Article 25 of the Convention?"
The defendants of course deny that, in any event, the plaintiffs can succeed in proving against them the very strict criteria laid down by Article 25, but that issue is not presently before the court.
Articles 22(1) and 22(2)(a) reflect the substantive liability imposed upon carriers under Articles 17 and 18(1), which provide as follows:-
Article 17
"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking".
Article 18
"(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air."
It is apparent that Articles 17 and 18(1) impose on the carrier obligations which, in normal circumstances, amount in effect absolute liability for death or injury, and for loss of and damage to baggage or cargo, occurring during carriage by air; the only exception is a defence provided by Article 20, which prescribes that the carrier is not liable if he proves that he or his servants or agents had taken all necessary measures to avoid the damage, or that it was impossible for him or them to take such measures —a burden which, as is common ground, can only be satisfied in the rarest of cases.
In Fothergill -v- Monarch Airlines Ltd 1981 AC 251 the House of Lords laid down that, in construing the Convention, a purposive and not a literal construction should be applied, and that the court should have regard to the purpose of the Convention and to dictionaries, legal text books, articles in legal journals, the decisions of foreign courts, and the travaux preparatoires. This was the approach adopted by Phillips J., and pursued in argument by both sides before us, though the travaux preparatoires do not assist here.
There is no English decision on this question prior to that of Phillips J. in the present case. There are however a number of foreign decisions, and also a number of text book commentaries, to which I shall refer in due course.
Phillips J., having cited the foreign authorities and text books referred to below, and having concluded that while the balance of academic opinion and foreign decisions tilted in favour of the plaintiffs, it did not do so decisively, followed the approach advocated by Bingham J. (as he then was) in Swiss Bank -v- Brink's MAT 1986 1 QB 853, namely to approach the Convention objectively in order to ascertain what its true intent is.
He then proceeded:-
"Article 22 is exclusively concerned with imposing limits or restrictions on the liability that is incurred under Articles 17 and 18. Article 22(1) imposes a limited of 250,000 francs per passenger in respect of the carriage of passengers but then goes on to provide that the carrier and the passenger can by special contract agree a higher limit of liability. I have no doubt that both the 250,000 franc limit and the alternative special contract limited are "limits of liability specified in Article 22" and thus subject to the...
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