Corocraft Ltd v Pan American Airways Inc.
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WIDGERY |
| Judgment Date | 07 November 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1107-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 1968 |
[1968] EWCA Civ J1107-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants against judgment of Mr. Justice Donaldson on 28th May, 1968
The Master of the Rolls (Lord Denning)
Lord Justice Davies and
Lord Justice Widgery
Mr. MICHAEL KERR, Q.C., and Mr. ANTHONY EVANS (instructed by Messrs. Slaughter & Lay) appeared on behalf of the Appellants, Defendants.
Mr. M.J. MUSTILL, Q.C., and Mr. DAVID W. STEELE (instructed by Messrs. Clyde & Co.) appeared on behalf of the Respondent Plaintiffs.
On the 10th May, 1962, Vendome Jewels Ltd. of 377 Fifth Avenue, New York, delivered to Pan American Airways one carton of topaz jewellery set in 14 carat gold. It was owned by Corocraft Ltd. and to be sent to Vendome Jewels of Fleming Way, Crawley, Sussex, England. The carriers carried it by air to London and it was kept in the carrier's office at London Airport. It was stolen by one of the carriers' servants. The owners now claim its value from the carriers. They put it at £1,194. 13s.8d.
The important thing to notice is that the senders did not declare any value for carriage purposes. They wrote on the waybill (or consignment note) "NVD", no value declared. If they had declared its value for carriage purposes and paid a supplementary sum, they would have been entitled (in case it was lost by the carriers' fault) to recover its full value of £1,194. 13s.8d. Their omission (to declare its value-for carriage purposes, or to pay a supplementary sum) meant that the carriers were under a very limited liability. Their liability was limited by Article 22(2) of the Warsaw Convention, which says that, "In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires."
According to that Article, the liability of the carrier was limited to the suz: in sterling, of £19. 2s.10d. So the senders would have been well advised to insure it with an insurance company against lose. Perhaps they did so. And the insurance company are behind this claim against the carrier. We have not been told. Nor need e. It does not affect the legal issues.
The senders say that the carriers are not entitled to rely on that limitation of liability in Article 22(2). They say that the waybill (or consignment note) did not contain all the necessary particulars; and on that account the carriers areshut out from any defence. The senders rely on Article 9 of the Warsaw Convention, which says: "If the carrier accepted goods without an air consignment note having been made out, or if the air consignment note does not contain all the particulars set out in Article 8(a) to (i) and (q) inclusive, the carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability."
That is a remarkable provision. I cannot understand how it sot into the Convention. It appears to mean this: suppose the sender, when he makes out the consignment note, omits some particular or other; and the carrier does not notice the omission, or does not insist on it being filled in. That omission means that the carrier is under an unlimited liability - the liability of an insurer of the goods - without receiving any premium for it. It follows that the sender, if he is clever, need not insure his goods with an insurance company or pay any premium. He need only miss out one of the particulars, and he is then in just as good a position as if ho were fully insured. But, however absurd, Article 9 is plain. It is still applicable to many international contracts of carriage: and when it is applicable, effect must be given to it.
I am glad to say that the Convention has been amended, in some cases, so as to omit that absurd provision. There was a Conference at The Hague in 1955 which made great improvements. These have been made law for England by the Carriage by Air Act, 1961. But many countries have not ratified the amending Convention. The United Syates is included among them. The result is that the original Warsaw Convention still remains law for carriage between the "United States and England and for many other countries too. So it is still important to know how it should be interpreted.
So I turn to the original Warsaw Convention, so as to see what are the particulars which the waybill (or consignment note) must contain. They are set out in Article 8(a) to (i) inclusive, and (q). I will set out those particulars which come into thediscussion, using the English texts:
Article 8 says that: "The Air Consignment Note shall contain the following particulars:- (c) The agreed stopping places… …; (g) The nature of the goods; (h) The number of the packages, the method of packing and the particular mark or numbers upon them; (i) The weight, the quantity, and the volume or dimensions of the goods; (q) A statement that the carriage is subject to the rules relating to liability established by this Convention."
In the present case the senders say that the Air Consignment Note did not comply with Article 8(i), in that it contained the weight of the carton but did not give the volume or dimensions. They submit that the absence of the volume or dimensions deprives the carrier of the benefit of any of the limitations or exceptions on liability. The waybill (or consignment note) was a printed form which is in universal use by airline companies, and it is instructive to reproduce the material part of this one, as filled in by the sender and accepted by the carrier:-
PAN AMERICAN AIRWAYS SYSTEM
( CLIPPER CARGO - AIR WAYBILL)
signed to VENDOME JEWELS Street Address: FLEMING WAY, CRAWLEY, SUSSEX ENGLAND.
No. of packages
Method of Packing
Nature and Quantity of Goods
Marks and Numbers
Dimensions or Volume
Gross Weight (Specify Kilos or Lbs.
ONE (1)
CARTON TOPAZ JLRY SET IN 14 KT GOLD
AS A DDR No. 1
7 lbs. 3.1 KGS
(Shipper's Declared Value (Specify Currency)
For 2959.00 Customs For Carriage NVD
METHOD OF ROUTING AND CHARGES - Agreed stopping places are those places (other than the places of departure and destination) shown under Air Carriage, and/or those places shown in carriers' timetables as scheduled stopping places for the route. SEE CONDITIONS ON REVERSE HEREOF.
It will be noticed that the waybill (or consignment note) does not contain the "quantity" of the goods, nor does it contain the "dimensions or volume". But it does contain theweight. The volume and dimensions could be inferred from the waybill and were in fact known to both senders and carriers. The parties have agreed on the following admitted facts:
"1. The first plaintiffs and Vendome Jewels Ltd. (the senders) knew the volume and dimensions of the carton at all material times, and the defendants knew the same as soon as the carton was received for carriage.
"2. The appropriate volume and dimensions of the carton could be inferred from information contained in the air waybill. The approximate dimensions of the carton were 10-12 inches long; 6 inches wide; 8-10 inches deep.
"3. The omission from the air waybill of the volume and dimensions of the carton did not cause or contribute to the loss.
"4. If the air waybill had stated the volume and dimensions (or either of them) of the goods, the defendants would not thereby have been caused to charge a different rate of freight for the goods, or to alter the mode of carriage or custody."
In view of these admissions, it is apparent that the point of law raised by the senders is a highly technical point, devoid of all merit. They say that, because the volume or dimensions were not set out by the senders themselves on the waybill, the carriers are deprived of the limitation on liability. Yet, however technical, the senders are entitled to take it. If the Warsaw Convention does require that in addition to the weight, there must be added the volume or dimensions, then (seeing that these were not added) the carriers have not the benefit of the limitation.
So I come to the point of the cases does Article 8(i) of the Convention require that, in addition to the weight, there must be stated either the volume or dimensions, even though these are known to both parties, or can be inferred? If the English text is taken literally, it does appear to require it, particularly by the use of the word "and". It says:
"(1) The weight, the quantity and the volume or dimensions of the goods". That word and, taken literally, means thatthree out of the four must be stated. But the French text is not so explicit. It misses out the word and. It says:
"(1) Le poids, la quantite; le volume ou les dimensions de la merchandise".
According to that French text, it may be that only one out of the four need to be stated.
A similar discrepancy appears between the two texts as to Article 8(h). The English text says?
'(h) The number of the packages, the method of packing and the particular marks or numbers upon them".
The French text onmits the word and. It says;
"(h) Le nombre, le mode d'emballage, les marques particulieres ou les numeros des colis".
Owing to these divergences, the question arises at the outset; by which text are we to go? By the English text or the French text?
THE ENGLISH TEXT OR THE FRENCH TEXT?
The Warsaw Convention is only law in England in so far as Parliament has made it so. But Parliament has made it part of our law. It passed the Carriage by Air Act, 1932, for the express purpose of giving effect to the Convention. But then in the very first section the Act says that:
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