Fothergill v Monarch Airlines Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0731-5 |
| Docket Number | 1976 F. No. 542 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1979 |
[1979] EWCA Civ J0731-5
The Master of the Rolls (Lord Denning)
Lord Justice Browne and
Lord Justice Geoffrey Lane
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
(Mr. Justice Kerr)
MR. C.S. STAUGHTON, Q.C. and MR. R.G. WOOD (instructed by Messrs. Gregory Rowcliffe & Co., London agents for Messrs. Wood McLellan & Williams) appeared on behalf of the Plaintiff (Respondent).
R. M. EDWARDS (instructed by Messrs. Beaumont & Son) appeared on behalf of the Defendants (Appellants).
THE FACTS
In March 1975 Mr. Fothergill went for a holiday to Italy. He insured his luggage through the tour operators called Cosmos He returned on the 13th March, 1975 by an aircraft of Monarch Airlines Ltd. to London. When the luggage was unloaded, he got his suitcase and found it was badly damaged. He went to the reception desk and reported it. The lady filled in a form called the Property Irregularity Report. She entered: "Damaged - One Navy S/C expanding". Contents: "P/E" - that is, personal effects. Then in a box headed: "Nature of Damage", she wrote: "Side seam completely parted from case. Damage occurred on inbound flight".
Mr. Fothergill then went home to Colchester with his damaged suitcase. When he opened it, he found that there were missing a shirt, a pair of sandals and a cardigan. He did not write to Monarch Airlines. He wrote to the tour operators, who passed it on to the insurance company. They sent back a Claim Form. The tour operators got Mr. Fothergill's answers and returned it on the 11th April, 1975.
The Claim Form asked: "State action taken to recover any lost articles".
The reply was: "Apart from damage to suitcase, it was not known until a later date what articles had been lost, but damaged suitcase was taken to Monarch Airlines' reception desk at Luton Airport".
The Claim Form asked for particulars of the claim. The reply was that the suitcase "cannot be repaired" and the "loss out of suitcase" of the shirt, sandals and cardigan. The amount claimed was £12 for the suitcase and £16.50 for thecontents - totalling £28.50.
Under the insurance Mr. Fothergill had to bear himself the first £2.50. So the insurance company paid him £26, and he accepted it in settlement.
The insurance company then, by virtue of their right of subrogation, claimed from Monarch Airlines. The airlines accepted liability for the damage to the suitcase - £12 - but denied liability for the loss of the shirt, sandals or cardigan, which came to £16.50. The reason for their denial was because they said that Monarch Airlines did not receive any complaint of the loss of contents until the 20th June, 1975: whereas there was, under the Warsaw Convention, a time limit of seven days. I expect this point is taken by insurers, of Monarch Airlines. So the case is really a contest between two insurance companies - those who insured Mr. Fothergill's luggage - and those who insured Monarch Airlines for their liability in respect of it. The court can regard the matter quite dispassionately, without taking into account any sympathy for Mi. Fothergill: for he has been satisfied.
THE WARSAW CONVENTION
Now that carriage by air is universal and international, it is desirable that all countries should have the same rules in regard to air transport. The first set of rules was agreed in Warsaw in 1929. A convention was there agreed. In 1932 it was made law for the United Kingdom by the Carriage by Air Act 1932. In 1955 there was a meeting at the Hague at which amendments were agreed. This was known as "The Warsaw Convention as amended at The Hague, 1955". It was made law for the United Kingdom by the Carriage by Air Act 1961. That Act appended an English Text and a French Text: and said thatif there was any inconsistency between the two "the text in French shall prevail". That is a funny sort of thing to tell us English lawyers. Some of us have no French. Others have schoolboy French. None of us has sufficient knowledge of French to be able to detect any inconsistency. I do not suppose that the Members of Parliament were any more linguistically accomplished than we. So for the present I propose to go by the English text.
I will first set out the more important articles in the English text of the Convention.
THE CONVENTION
Article 18(1): "The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, registered baggage or cargo upon condition only that the occurrence which caused the damage so sustained took place during the carriage by air".
Article 22(2)(b): "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 limit of liability".
Article 26(2): "In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo…"
Article 26(3): "Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid".
Article 29(1): "The right to damages shall be extinguishedif an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped".
THE ISSUE OF THE CASE
The passenger admits that, in the case of damage to a suitcase, he has to make complaint in writing within seven days of the time he received it: but he says that in the case of loss of part of the contents (or loss of the whole suitcase) he need make no complaint and give no notice. It is sufficient if he brings an action within two years.
The carrier says that both in the case of damage to the suitcase and also in the case of loss of part of the contents, the passenger must make complaint in writing within seven days. The carrier admits that in the case of the whole of the suitcase, there need be no complaint and no notice. It is sufficient if action is brought within two years.
The issue depends upon the meaning of "damage" in Article 26(2) of the Convention. Is it confined to physical damage? Or does it include also "loss of part of the contents"?
THE MEANING OF "DAMAGE"
I think that the word "damage" in Article 26(2) is ambiguous. It may be confined to physical damage or it may include loss of part of the contents.
In other Articles it is used variously. In Article 18(1) I think "loss of" means loss of the whole suitcase and "damage" includes loss of part of the contents. In Article 22(2)(b) "damage" means physical damage only.
THE MEANING OF "AVARIE"
To my schoolboy French, the French Text is also ambiguous.It says: "En case d'avarie", etc. The French dictionaries do not help to resolve the ambiguity. I doubt whether an interpreter could do any better than the dictionaries.
THE MINUTES OF THE HAGUE CONFERENCE OF 1955
In 1955, when the Hague Protocol was negotiated, there was an important Conference at the Hague, at which most countires of the world were represented. Mr. Wilberforce (as he then was) appeared for the United Kingdom. He had just taken silk and was assisted by Mr. Beaumont. There were 34 meetings. Minutes were kept. They were published by the International Civil Aviation Organisation in Montreal in 1956 in English, French and Spanish. Our very point on Article 26(2) was discussed. Mr. Wilberforce for the United Kingdom delegation proposed it should be amended so as to make it clear. He suggested that the opening words should be: "In case of damage or partial loss of baggage or cargo". Mr. Beaumont (United Kingdom) said that the whole purpose of the United Kingdom's proposal was to incorporate certainty where at present uncertainty prevailed.
At a later meeting Mr. Drion (Netherlands) proposed; seconded by Mr. Sidenbladh (Sweden); the addition of the words "or partial loss" after "damage".
Mr. Calkins (United States) said that it went without saying that "damage" included "partial loss". He was opposed to the Netherlands' proposal.
Mr. Loaeza (Mexico), Chairman of the Drafting Committee, speaking as the Mexican delegate, said that it was not necessary to insert the words "or partial loss" after the word "damage".
Messrs. Drion (Netherlands) and Sidenbladh (Sweden) withdrew their proposal on the understanding that the word"damage" was to be understood as including "partial loss".
Those Minutes are most telling. But the judge thought they should have no weight. He said: "This material has come before this Court mainly because the Defendants' solicitors specialise in air law and have this publication available. It would not be readily available to a non-specialist lawyer, and no ordinary air passenger would have the slightest idea that it exists, nor be concerned if he or she knew". Here, I find myself differing from the judge. This Convention is not a contract between passenger and carrier. Our strict rules about exemption clauses and limitation clauses (in money or time) do not apply to it. It is a convention which binds everyone affected by it - in all countries signatory to it - just as if it were a statute. It is no answer for passenger or carrier to say that he never agreed to it, or knew nothing of it, or had no notice of it. The only question is, what is the true interpretation of it? If the courts, in seeking its true interpretation, are entitled to have regard to these minutes as travaux preparatoires, then both passengers and carriers...
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