Fothergill v Monarch Airlines Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Lord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Roskill
Judgment Date10 Jul 1980
Judgment citation (vLex)[1980] UKHL J0101-3

[1980] UKHL J0101-3

House of Lords

Lord Wilberforce

Lord Diplock

Lord Fraser of Tullybelton

Lord Scarman

Lord Roskill

Fothergill
(Respondent)
and
Monarch Airlines Limited
(Appellants)
Lord Wilberforce

My Lords,

1

This appeal involves a small sum of money (£16.50), but is said to raise two questions of general importance for airlines and travellers by air. It does, in addition, require discussion of some important issues concerned with the interpretation of treaties.

2

The respondent, Mr. Fothergill, in March 1975 arrived at Luton airport after an international flight on one of the appellant's aircraft. When his registered baggage, consisting of a suitcase containing personal effects, was delivered to him he noticed that it was damaged. He immediately reported this to an official of the airline, and, as is apparently usual, a Property Irregularity Report (P.I.R.) on a printed form, was completed. Under the heading "Nature of Damage" there was inserted "Side seam completely parted from the case. Damage occurred on inbound flight". This damage was later fixed at £12.50 and in due course the airline accepted liability for it. After the respondent reached home he discovered that some of the contents were missing: a shirt, a pair of sandals and a cardigan—value £16.50. Mr. Fothergill recovered this sum from his insurers who now support his claim against the airline—in fact, no doubt, their insurers. The flight in question was "international carriage" and was governed by the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955.

3

The airline relies on Article 26 as an answer to the claim. This (as amended by Article XV of the Protocol) reads:

"(1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.

(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. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.

(3) Every complaint must be made in writing upon the document of carriage or by a separate notice in writing despatched within the times aforesaid.

(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part."

4

The airline claims that Mr. Fothergill should have complained of the loss within seven days and that, since he did not so do, his claim is barred by paragraph 4. Mr. Fothergill's answer to this is first, that no complaint was necessary, since paragraph 2 applies only to damage and not to loss, total or partial; second, that if a complaint was necessary, he made one in time through the P.I.R.

5

The first point, which depends upon the construction of the Article, has been disposed of for the future, as regards cases governed by English law, by the Carriage by Air and Road Act 1979, section 2, which enacts specifically that Article 26 (2) supra is to be construed as including loss of part of the baggage. However, it appears that there are outstanding a number of cases which arose before the Act was passed or which the Act cannot affect. (It clearly, in my opinion, cannot be used as an aid to interpretation of the pre-existing Convention.) The second point continues to be relevant, and it is no doubt desirable for both airlines and passengers to know what kind of complaint will satisfy the requirement.

6

It is first necessary to establish the nature and status of Article 26. The Warsaw Convention of 1929, which contained an Article 26 in similar form, was agreed to in a single French text, deposited with the Government of Poland. It was introduced into English law (not being, of course, self-executing) by the Carriage by Air Act 1932. This set out in the First Schedule a translation of the Convention into English and provided (section 1) that the provisions of the Convention as so set out should have the force of law in the United Kingdom.

7

In 1955 a Conference was convened at the Hague, in order, inter alia, to make changes in the limits on the carrier's liability. Occasion was taken to make other amendments; one such amendment (Article XV in the resulting Protocol) was to substitute for Article 26 (2) (Warsaw) a new paragraph altering the time limits but not otherwise changing the wording. This Protocol was imported into English law by the Carriage by Air Act 1961, which replaced the Act of 1932. This contained a first Schedule in two parts. Part I set out an English text of the Warsaw Convention, as amended. Part II set out the French text of that Convention as amended. Section 1 of the Act provided (subsection (1)) that the Convention as amended "as set out in the First Schedule" should have the force of law in the United Kingdom. Subsection (2) was as follows:

"(2) If there is any inconsistency 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."

8

My Lords, some of the problems which arise when the Courts of this country are faced with texts of treaties or conventions in different languages were discussed in James Buchanan & Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd. [1978] A.C. 141 It is obvious that the present represents a special and indeed unique case.

9

Here it is not only permissible to look at a foreign language text, but obligatory. What is made part of English law is the text set out in the First Schedule, i.e. in both Part I and Part II, so both English and French texts must be looked at. Furthermore, it cannot be judged whether there is an inconsistency between two texts unless one looks at both. So, in the present case the process of interpretation seems to involve:

1. Interpretation of the English text, according to the principles upon which international conventions are to be interpreted (see Buchanan's case vide supra and Stag Line Ltd. v. Foscolo, Mango and Co. Ltd. 1932 A.C. 328, 350).

2. Interpretation of the French text according to the same principles but with additional linguistic problems.

3. Comparison of these meanings.

10

Moreover, if the process of interpretation leaves the matter in doubt, the question may have to be faced whether " Travaux préparatoires" may be looked at in order to resolve the difficulty.

11

I start by considering the purpose of Article 26, and I do not think that in doing so I am infringing any "golden rule". Consideration of the purpose of an enactment is always a legitimate part of the process of interpretation, and if it is usual—and indeed correct—to look first for a clear meaning of the words used, it is certain, in the present case, both on a first look at the relevant text, and from the judgments in the courts below, that no "golden rule" meaning can be ascribed. The purpose of Article 26, on the other hand, appears to me to be reasonably clear. It is:

(1) to enable the airline to check the nature of the "damage";

(2) to enable it to make enquiries how and when it occurred;

(3) to enable it to assess its possible liability, to make provision in its accounts and if necessary to claim on its insurers;

(4) to enable it to ensure that relevant documents (e.g. the baggage checks or passenger ticket, or the air waybill) are retained until the issue of liability is disposed of.

12

If one then enquires whether these considerations are relevant to a case of partial loss of objects contained in baggage, the answer cannot be doubtful: they clearly are. Moreover, prompt notification may give the airline an opportunity of recovering the objects lost.

13

In particular, as regards (4), preservation of the baggage check is important in order to establish the relevant weight upon which the limit of liability is fixed—see Article 22(2)( b) which explicitly mentions "any object contained therein" (e.g. in registered baggage).

14

There seems, on the contrary, to be no sense in making a distinction between damage to baggage—which presumably must include damage to contents—and loss of contents.

15

What then of the language? No doubt in an English legal context, loss is one thing, damage another. But the nature of the text in question does not suggest that it was drafted with strict English meanings in mind. First, in the English text, the word "damage" in the Convention is used in more than one sense. Sometimes it means "monetary loss"—for example in Article 17, or Article 19. Sometimes it means "physical damage" e.g. Article 10, line 2, Article 22(2)( b). In some Articles it is used with both meanings, e.g. Article 18. Whether it can include "partial loss" is, textually, open to argument. There can be no doubt that the carrier is liable for loss, total or partial of the contents of baggage—the appellant does not contend the contrary. Article 22(2)( b) indeed makes provision for this. But when one looks for the word which covers this, the search yields no clear result. Article 18 refers to "loss of" registered baggage, and "damage to" registered baggage. Nothing there is really apt to cover loss of something contained in the baggage. I am inclined to agree with Lord Denning M.R. when he says "In article 18(1) I think 'loss of' means loss "of the whole suitcase". In this state of the text we must see whether the French text can assist.

16

The French text. This, at least, avoids part of the English difficulty, in that it confines the use of the word "dommage" to monetary loss (Articles 17, 18, 19, 20, 25.). When it refers to physical "damage" it uses the word "avarie". So what does "avarie" mean? This...

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