Holmes v Bangladesh Biman Corporation
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BINGHAM,LORD JUSTICE DILLON |
| Judgment Date | 26 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0226-4 |
| Docket Number | 88/0167 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 1988 |
[1988] EWCA Civ J0226-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE LEGGATT
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Dillon
Lord Justice Bingham
88/0167
MR R.S. WEBB, instructed by Messrs Beaumont & Son, appeared for the Appellants (Defendants).
MR T.E. WALKER Q.C., instructed by Messrs Coward Chance, appeared for the Respondent (Plaintiff).
I will ask Lord Justice Bingham to give the first judgment.
In August 1984 a Bangladeshi aircraft crashed on a domestic flight in Bangladesh. Mr Geoffrey Holmes was a passenger and was killed. His widow brought these proceedings against the airline claiming under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Acts 1976. The question is whether the claim is governed by schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 or by the Bangladeshi provisions incorporated in the contract between the passenger and the airline. The answer makes a big difference to the sum the plaintiff is entitled to recover.
The question was tried as a preliminary issue by Leggatt J., who ruled in favour of the plaintiff that schedule 1 of the 1967 Order applied to the claim: [1987] 2 L1.L.R. 192. The airline appeals.
The facts giving rise to the issue were agreed as follows:
"The Plaintiff is the widow and executrix of the estate of Geoffrey Paul Mervyn Holmes ('the deceased'). The action is brought on behalf of the estate and on behalf of the dependants of the deceased identified in the Statement of Claim.
"The deceased, who was aged 41 at the date of his death, was at all material times a British citizen domiciled in the United Kingdom.
"The Defendant carries on business as a carrier by air for reward.
"On 5th August 1984 the deceased was a passenger for reward on board the Defendant's Fokker F27 aircraft on an internal Bangladesh flight from Chittagong to Dhaka. The ticket was issued in Bangladesh and did not provide for a stopping place outside Bangladesh.
"As the aircraft approached Zia International Airport it crashed, and the deceased was killed.
"If the carriage was carriage by air in respect of which Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 had effect (as the Plaintiff contends) the liability of the Defendant is limited to 100,000 special drawing rights, which at current rates is equivalent to approximately £83,763. The damages suffered exceed this figure.
"If the carriage was not carriage by air in respect of which Schedule 1 applies (as the Defendant contends), the Defendant can limit its liability to 39,500 takas, either by contract or by the (Bangladesh) Carriage by Air Act 1934 and the Directions given thereunder by SRO 295(K)62. At current rates this is equivalent to approximately £913."
The arguments advanced by the parties were fully summarised by Leggatt J. in his judgment and were essentially the arguments addressed (orally and in writing) to us. I shall not repeat his summary.
Statutory intervention apart, the English court would without doubt hold the passenger's rights against the airline to be governed by the express terms of the contract between them. Those terms incorporated the liability provisions of the Bangladeshi Carriage by Air Act 1934 and the Bangladeshi limitation on damages claims. Even in the absence of express terms, I have no doubt that on the present facts we would recognise the law of Bangladesh as the proper law of this contract. It follows that, unless the plaintiff can rely on an English statute as ousting or overriding the Bangladeshi proper law, the airline's argument must succeed.
The Carriage by Air Act 1932 was enacted to give effect to the Warsaw Convention. That Convention applied only to international carriage, by which was meant carriage from the territory of one contracting state to the territory of another contracting state, or carriage within a single contracting state if (but only if) there was an intermediate stopping place in the territory of another state. It would not therefore have affected the present case. There was under section 4 of that Act a power to apply the Convention with exceptions, adaptations and modifications to non-international carriage, and this power was exercised: see The Carriage by Air (Non-international Carriage) (United Kingdom) Order 1952 ( S.I. 158/1952). The regime thus introduced was simpler than, but similar to, that now in force. The statutory framework was, however, altered on 1st June 1967 when the Carriage by Air Act 1961 and the 1967 Order came into effect. It is on these that the plaintiff must rely to oust the Bangladeshi proper law.
The effect of the 1961 Act and the 1967 Order, read together, was to create three broad categories of carriage:
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(1) international carriage governed by the Warsaw Convention as amended at The Hague (which I shall call "the amended Convention");
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(2) international carriage governed by the unamended Warsaw Convention ("the unamended Convention");
(3) carriage not governed by either of these Conventions. It is helpful to see how the categories and the statutory provisions fit together.
(1) The main purpose of the 1961 Act was to give the force of law in the United Kingdom to the amended Convention. The text of the amended Convention was scheduled to the Act. There was power in section 9 to extend the Act to British possessions and in section 10 by order to apply the amended Convention with exceptions, adaptations and modifications "to carriage by air, not being carriage by air to which the [amended] Convention applies, of such description as may be specified in the Order". The amended Convention defines international carriage in essentially the same way as the unamended Convention, but the reference to contracting states is of course to be read as a reference to states adhering to the amended Convention. The amended Convention contains, in Article 28, a provision stipulating which courts are to have jurisdiction to determine claims arising under the amended Convention.
The amended Convention has no direct bearing on the present case, which did not involve international carriage as defined.
(2) The 1967 Order was made in exercise of the powers conferred by section 10 of the 1961 Act. Article 3 provided:
"This Order shall apply to all carriage by air, not being carriage to which the amended Convention applies."
The provision seems to me comprehensive in its effect, applying the Order without restriction to any carriage not covered by the amended Convention (i.e. by the 1961 Act itself).
Article 5 provided:
"(1) Schedule 2 to this Order shall have effect in respect of carriage to which the Order applies, being carriage which is international carriage as defined in that Schedule".
Schedule 2 sets out the unamended Convention, with modifications. The definition of international carriage is essentially as before, the contradicting states referred to being those adhering to the unamended Convention. Article 28, governing jurisdiction, was not significantly modified. This Schedule is of considerable importance, since a number of states (notably the United States) which adhered to the unamended Convention never became parties to the amended Convention.
Schedule 2 to the 1967 Order has no direct bearing on this case, for the reason already given that no international carriage (however defined) was here involved.
But it is of crucial importance in construing the 1967 Order for two reasons. First, it is inescapable that Schedule 2 has the force of law in the United Kingdom in cases to which it applies. This the appellant airline rightly acknowledged. Secondly, as again the appellant airline rightly acknowledged, schedule 2 must be understood as having extra-territorial effect. If a claim is brought here against an airline over which the English court has jurisdiction under Article 28, schedule 2 would be applied even though the carriage in question was between the territories of two foreign states (parties to the unamended Convention) not touching the United Kingdom at any point.
(3) The starting point again is Article 3 of the 1967 Order:
"This Order shall apply to all...
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