Milor S.r.l. v British Airways Plc

JurisdictionEngland & Wales
JudgeLORD JUSTICE PHILLIPS,LORD JUSTICE PETER GIBSON,LORD JUSTICE LEGGATT
Judgment Date09 February 1996
Judgment citation (vLex)[1996] EWCA Civ J0209-1
CourtCourt of Appeal (Civil Division)
Docket NumberQBCMI 96/0069/B
Date09 February 1996

[1996] EWCA Civ J0209-1

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

COMMERCIAL COURT

(Mr Justice Longmore)

Before: Lord Justice Leggatt Lord Justice Peter Gibson Lord Justice Phillips

QBCMI 96/0069/B

Milor Srl and Others
Plaintiffs/Respondents
and
British Airways Plc
Defendants/Appellants

MR R WEBB QC with MR R LAWSON (Instructed by Messrs Beaumont & Sons, London E1 8AW) appeared on behalf of the Appellant

MR M CRANE QC with MR G KINLEY (Instructed by Messrs Clyde & Co, London EC3M 1JP) appeared on behalf of the Respondent

1

Friday, 9 February 1996

LORD JUSTICE PHILLIPS
2

When a plaintiff commences proceedings in England, notwithstanding the fact that there exists an alternative forum available which is clearly more appropriate having regard to the interests of all the parties and the ends of justice, the Court will usually accede to an application to stay the proceedings: Spiliada Maritime Corporation v. Cansulex Ltd [1987] AC 460. The ground for such a say is customarily summarised conveniently, if not accurately, by the Latin phrase "forum non conveniens". The first question raised by this appeal is whether the Court can properly stay proceedings on grounds of forum non conveniens when the Plaintiff has invoked the jurisdiction conferred by Article 28 of the Warsaw Convention ("the Convention").

3

The facts

4

The Plaintiffs are respectively the shippers, consignees and forwarding agents of four parcels of gold jewellery, alleged to be worth three quarters of a million dollars. These parcels were consigned from Milan in Italy to Philadelphia in Pennsylvania, USA, via London, under a contract of international carriage of goods by air concluded with the Defendants as carriers. On arrival at Philadelphia, the parcels were placed in a bonded warehouse within the confines of the airport. This warehouse was occupied by American Airlines. It is alleged that the parcels were stolen by a person or persons for whose conduct the Defendants are liable.

5

The issue

6

This case is governed by the unamended version of the Warsaw Convention set out in Part B of schedule 2, attached to the Carriage by Air Act (Application of Provisions) Order 1967. Article 28 of the Convention which, as scheduled to the 1967 order, reads:

7

"(1)An action for damages must be brought, at the option of the plaintiff in the territory of one of the High Contracting Parties … either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.

8

(2)Questions of procedure shall be governed by the law of the court seised of the case."

9

The Defendants are ordinarily resident, and have their principal place of business within this jurisdiction, and this is the jurisdiction which the Plaintiffs have chosen by commencing proceedings in the Commercial Court. The Defendants contend that Pennsylvania is clearly the more appropriate forum, having regard, in particular, first to the source of the evidence that will have to be adduced at the trial, and secondly, to the likelihood that they would wish to bring third party proceedings in that jurisdiction. Accordingly, on that basis they seek an order staying the proceedings on the ground of forum non conveniens. The Plaintiffs contend that Article 28 gives them the right to select within which of the competent jurisdictions their claim will be tried, and that accordingly there is no scope for the application of the doctrine of forum non conveniens.

10

Longmore J upheld the Plaintiffs' submission and dismissed the Defendants' application. The Defendants now appeal. Only if this Court differs from the Judge's conclusion would it be necessary to consider whether Pennsylvania is, indeed, clearly the more appropriate forum for the trial of this action.

11

The natural meaning

12

Mr Robin Webb QC for the Defendants contends that the option that Article 28 confers on the Plaintiff, is no more that the choice of jurisdiction in which to commence proceedings. "Brought", he submits, in the first line of the Article means "instituted". Once the Plaintiffs have instituted proceedings before a competent Court, questions of procedure are governed by the law of that Court as the Article expressly provides. He says that the power to stay on the ground of forum non conveniens forms part of the English law of procedure, and the exercise of that power accords with the code that Article 28 imposes in relation to jurisdiction.

13

I accept that, in the appropriate context, the expression "to bring an action" can naturally mean "to commence an action". To find such a context, one need look no further than the next Article of the Convention. Article 29 provides:

14

"(1)The right to damages shall be extinguished if 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."

15

Plainly in that Article "brought" means "instituted or commenced". The natural meaning of "brought" will, however, depend upon its context. If a litigant says "I brought a successful action", the natural meaning of "brought" embraces both the initiation and the pursuit of the action. In my judgment, the context of Article 28 is one in which "brought" naturally has the latter meaning, rather than meaning no more than "instituted". It seems to me that Article 28 is dealing not merely with the jurisdiction in which proceedings will be initiated, but the jurisdiction in which the proceedings will be resolved. To give a Plaintiff the option to chose in which of a number of competent jurisdictions to commence his suit is to give him nothing. It is axiomatic that, if there are a number of competent jurisdictions, the Plaintiff will be able to chose in which one to commence proceedings. If the option granted by Article 28 is to have value, it must be an option to the Plaintiff to decide in which forum his claim is to be resolved. That, in my judgment, is the natural meaning of the option afforded by that Article.

16

It is of interest, though in the absence of ambiguity it is not a legitimate aid to interpretation, that in the French text the word that is the equivalent of "brought" in Article 28 is "portée"; the word that is the equivalent of "brought" in Article 29 is "intentée". It seems to me that the use of different words in each Article is significant. "Intentée" conveys the narrow meaning that "brought" has in the context of Article 29, namely "initiated". "Portée", in the context of Article 28, naturally carries the meaning that I consider that "brought" has in that context, namely "commenced and pursued". If Mr Webb's interpretation were correct, there would exist an inconsistency between the English and the French texts; happily, in my judgment, there is no such inconsistency.

17

If I am correct in concluding that Article 28(1) of the Convention provides that the Plaintiff shall have the option of choosing in which jurisdiction his claim shall be resolved, is that right qualified where the procedural law of his chosen forum permits the Court to decline jurisdiction in favour of an alternative competent forum? Mr...

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