Quantum Corporation Inc. and Others v Plane Trucking Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mance,Lord Justice Latham,Lord Justice Aldous |
| Judgment Date | 27 March 2002 |
| Neutral Citation | [2002] EWCA Civ 350 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2002 |
| Docket Number | Case No.A3/2000/3437 |
[2002] EWCA Civ 350
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (DIVISION) ON APPEAL
FROM THE QUEEN'S BENCH DIVISION
COMMERCIAL COURT (TOMLINSON J.)
Lord Justice Aldous
Lord Justice Mance and
Lord Justice Latham
Case No.A3/2000/3437
David Joseph (instructed by Messrs Clyde & Co.) for the Appellants
Michael McLaren (instructed by Messrs Collyer-Bristow) for the Respondents
Introduction
This appeal raises a point of principle regarding the applicability of the CMR Convention ("CMR"), scheduled to the Carriage of Goods by Road Act 1965, in circumstances where a contract embraces more than one type of carriage. Tomlinson J concluded that the correct approach was to characterise the contract as a whole, and that, unless the contract as a whole could be said to be for carriage by road internationally, any road carriage which it embraced fell outside the terms of the Convention. He gave permission to appeal, because of the general importance of the point.
The dispute arises between the four claimants/appellants and the second defendants, Air France. The four claimants are Quantum Corporation Inc., a Californian corporation, Quantum Peripheral Products (Ireland) Ltd. of Eire ("Quantum Ireland"), Expeditors (S) Pte Ltd. of Singapore ("Expeditors Singapore") and Expeditors Sea Sky (Dublin) Ltd. of Eire ("Expeditors Ireland"). The last two companies were freight forwarders. The claim relates to the loss in transit between Singapore and Dublin of a consignment of 11,520 hard disks. Expeditors Singapore on 21 st September 1998 issued its own house air waybill no. 4710119916 naming Quantum Asia Pacific Pte Ltd. as consignor and Quantum Ireland as consignee. For the purposes of the actual carriage, it consolidated the consignment with another (apparently also consisting of computer parts originating with one or other Quantum company), and, as agent for Air France, also issued a master air waybill no. 057–52326621 on 21 st September 1998 naming itself as consignor and Expeditors Ireland as consignee.
Air France had no direct flight from Singapore to Dublin. The master air waybill thus recorded that the goods were to be carried in two stages. The first was to be from Singapore to Charles de Gaulle airport, Roissy, Paris by Air France, and the second (from there) to Dublin by Air France. Two corresponding entries appeared in a further box, each under a heading "Flight/Date", namely "AF6753/22" and "AF9408/22". It is common ground that these identify, firstly, an Air France flight from Singapore to Charles de Gaulle in France, and secondly a trucking service used by Air France to carry goods from Charles de Gaulle to Dublin airport, followed in each case by the date of intended carriage thereby (22 nd, that is of September 1998). The present consignment was one of a large number of similar consignments involving the same parties which had been carried in the same way, daily or almost so, during 1998. Its carriage by road on a roll-on, roll-off basis from Charles de Gaulle to Dublin was sub-contracted by Air France to the first defendant, Plane Trucking, now insolvent. The consignment of hard disks (alleged to have been worth some US $1.5 million) was lost in North Wales by a pretended "hi-jack" in which the truck driver and one of Plane Trucking's supervisors were involved as conspirators—each pleaded guilty and each has been sentenced to three years and nine months imprisonment.
The application before Tomlinson J was for judgment under Part 24 for damages to be assessed against both defendants. Although Air France's pleadings had raised issues as to which claimant had any claim, counsel's skeleton before the judge acknowledged that "Air France's liability to the Claimant [sic] is not in issue". The (limited) judgment that the judge gave was in favour of the claimants/appellants generally, and it has not been suggested before us that this was wrong. Counsel's skeleton before the judge went on to identify as fundamental issues (a) whether the CMR Convention applied to the trucking leg from Charles de Gaulle to Dublin and (b) if so, whether the circumstances of the theft were such as to amount to wilful default within the meaning of CMR (cf article 29). We are only concerned with the former issue. If the second arises, it has been agreed to refer it back to the Commercial Court for resolution.
Under article 17 of CMR, a carrier is liable for total or partial loss occurring between the time he takes over the goods and the time of delivery, the only relevant exception for present purposes being if the loss was caused "through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent". Article 23(3) limits compensation to 8.33 units of account per kilogram of gross weight short. But, if the damage was caused by wilful default—by the international road carrier or by its servants or agents or any other persons of whose services it makes use for the performance of the carriage – article 29 prevents the carrier from limiting its liability.
Air France's case, which the judge accepted, is that carriage by air subject to the Warsaw Convention ended at Charles de Gaulle, and that its liability thereafter fell to be measured by reference to its own terms and conditions, to which reference was made on the air waybill. Those conditions limited any liability on Air France's part to 17 Special Drawing Rights per kilogramme of cargo lost – a more generous limit than the basic CMR limit. However, in respect of carriage not subject to the Warsaw Convention in any of its variants, they contained less favourable provisions regarding the standard and onus of proof of liability and, more importantly, no provision paralleling article 29 of CMR or disentitling Air France from relying on the limit of 17 Drawing Rights in the event of wilful default.
More specifically, Air France's conditions provided as follows:
ARTICLE 1 –DEFINITIONS
"1.3 Applicable Convention: means whichever of the following instruments is applicable to the contract of carriage; [there followed a list consisting of the Warsaw Convention and four of its variants]" ….
ARTICLE 2 – APPLICABILITY
2.1 General:
These Conditions shall apply to all carriage of cargo, including all services incidental thereto, performed by or on behalf of Carrier; provided however that if such carriage is "international carriage" as defined in the applicable Convention (see Article 1: Definitions, under "Applicable Convention") such carriage shall be subject to the provisions of the applicable Convention and to these Conditions to the extent that these Conditions are not inconsistent with the provisions of the Convention."
"ARTICLE 11 – CARRIER'S LIABILITY
11.1 Carrier is liable to the shipper, consignee or any other person for damage sustained in the event of destruction or loss of, or damage to, or delay in the carriage of cargo only if the occurrence which caused the damage so sustained took place during the carriage by air. For the purposes of this Article carriage by air shall comprise the period during which the cargo is in the charge of the carrier, or in the charge or its agent.
11.2 Except as may be otherwise provided in any applicable Convention, Carrier is not liable to the shipper, consignee or any other person for any damage, delay or loss of whatsoever nature arising out of or in connection with the carriage of cargo or other services performed by the Carrier, unless such damage, delay or loss is proved to have been caused by the negligence or wilful default of Carrier and there has been no contributory negligence on the part of the shipper, consignee or other claimant ….
….
11.7 Unless the carrier has made a special declaration of value for carriage and has paid the supplementary sum applicable, liability of Carrier shall not exceed the applicable Convention limit or, if no Convention applies, 17 Special Drawing Rights, per kilogramme of cargo destroyed, lost, damaged or delayed. …"
Articles 11.1, 11.2 and 11.7 are thus relied upon by Air France in this case to limit their liability to 17 Special Drawing Rights per kilogramme. The practical effect is to restrict it in this case to £116,057.56, for which sum the judge gave judgment against Air France.
S.1 of the 1965 Act provides that the provisions of CMR "shall have the force of law so far as they relate to the rights and liabilities of persons concerned in the carriage of goods by road under a contract to which the Convention applies". Chapter I of the Convention, consisting of articles 1 and 2, is entitled "Scope of Application". It provides as follows:
"Article 1
1. This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country, irrespective of the place of residence and the nationality of the parties.
2. For the purposes of this Convention, "vehicles" means motor vehicles, articulated vehicles, trailers and semi-trailers as defined in article 4 of the Convention on Road Traffic dated 19 th September 1949.
3. This Convention shall apply also where carriage coming within its scope is carried out by States or by governmental institutions or organisations.
4. This Convention shall not apply:
(a) to carriage performed under the terms of any international postal convention;
(b) to funeral...
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