Rustenburg Platinum Mines Ltd v South African Airways and Pan American World Airways Inc.
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH,SIR DAVID CAIRNS |
| Judgment Date | 11 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0711-4 |
| Docket Number | 1972 R. No. 1288 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1978 |
[1978] EWCA Civ J0711-4
The Master of the Rolls
(Lord Denning)
Lord Justice Eveleigh and
Sir David Cairns
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Mr. Justice Ackner)
MR. J. GRIFFITHS. Q.C. and MR. J. THOMAS (instructed by Messrs. Ince & Co. Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).
MR. A. COLMAN, Q.C. and MR. S. GEE (instructed by Messrs. Stallard & Co., Solicitors, London) appeared on behalf of the Second Defendants (Appellants).
REVISED JUDGMENT
A box of platinum was stolen from an aircraft at Heathrow. The question is where liability rests. It is an interesting story. This box of platinum weighed about 50 lbs - I am putting it in English weights and measures. It was about 15 inches long, 13 inches wide and 8 inches deep. It was quite a heavy box for one man to carry.
In September 1970 the owners of this box of platinum sent it, with another box, for transport from South Africa through to Philadelphia in America. It was loaded on an aircraft in South Africa on an air waybill issued by South Africa Airways. It had the conditions of the Warsaw Convention applied to it.
The platinum was to be transferred at London Airport to another aircraft, a Boeing, which was to carry it on to the United States. At 11 o'clock in the morning on the 10th September, 1970 this box - together with other boxes - was taken on a small truck followed by an armoured vehicle and taken out to the aeroplane. It was loaded before the main baggage. Some smaller valuable items were put in a special security pouch. But three bigger boxes including this one containing platinum were treated differently. Two of those boxes were placed on a shelf. There was not room on the shelf for this box (which was afterwards stolen). So it was put just below. After those boxes had been loaded on the aircraft, the baggage vehicles came out. Further baggage was stowed round and about in this hold.
There were several loaders employed: and there was an investigation at the trial as to how the box came to be stolen. The judge, having heard all the evidence, found that it had been stolen by a combined operation. He found that one of the loaders (who was inside the aircraft) put the box into a position where it could be seen and be removed ever when the baggage was being loaded. It so happened that on this occasion the securityguards were busy in other parts of the airport because there been a recent spate of hi-jacking. So there was no security immediately available there. After everybody's back was tur this particular loader who had put the box into an accessibl place must have extracted it (like a scrum half getting the out of a pack) and handed it down to someone in the numerous vehicles which were alongside the aircraft. So this box was stolen by a combined operation. It involved one of the load (who was entrusted with the actual loading of it into the ho and one or more of the people in a vehicle which had come up the aircraft. That is the finding which the judge made in to the way in which this box was stolen.
After the box was stolen, the owners were compensated their insurance company. They claimed against the carriers, American Airways, who were flying the Boeing from London Air to Philadelphia.
As so often happens in these cases, there were insurance companies on both sides. And the first point which arises case is whether there was that is called a settlement or an accord and satisfaction: by which the owners or their insure accept a sum in full and final settlement of the claim. I am going to put it in English money for easier understanding. box of platinum was worth about £60,000 sterling whereas the settlement is put at about £200: because that is said to be limit of liability under the Warsaw Convention. The alleged settlement took place in this way: In South African rands the value of this property was 73,121 rands, whereas the amount was to be paid in settlement - was 263.74 South African rands. That is sum which was paid and was said to be in settlement of the ma
On this point the case really depends on two or threecommunications which took place in the course of negotiations whilst investigations were still going on as to how this loss happened and as to how the goods were stolen. I will read the material parts of the two documents which are said to constitute the accord and satisfaction. On the 1st July, 1971 South African Airways wrote to Messrs. Hiles & Co., who were, so to speak, the agents of the insurers of the owners. So it was really South African Airways writing to the owners' representatives. The letter reads in this way: "Messrs Pan American World Airways advised that since no value was declared for carriage on this waybill, their liability under the terms of the air waybill and applicable tariffs is limited to the sum of 16.58 per kilogram (7.52 per pound) of the goods lost or destroyed. Since the gross weight of the items in question was 787 ounces (49.1 pounds) their maximum legal liability is 369.23 i.e. R263-74. On transmitting the cheque to your client kindly also convey Messrs. Pan American World Airlines sincere apologies for any inconvenience suffered as a result of this unfortunate incident".
So there it is. The airline was saying that under the Warsaw Convention their liability was limited to 263.74 rands, and they sent a cheque forward.
Then there were intervening communications by the owners' insurers which really are not admissible in this matter at all. Then what is said to be the acceptance is contained in the fact that this cheque was put into the bank by the owners' insurers: also there was an acknowledgement slip which was sent forward which said "In payment of the claim", and then it gave the number of the claim. That was a little note which was put on the back of the acknowledgement slip when the cheque was put into the bank.
It is said that those two documents evidence an accord andsatisfaction whereby the owners' insurers released any claim in regard to the loss of this box of platinum. In other words (and I will put it in English currency) instead of £60,000 they accepted £200 or thereabouts in value.
We have had a good deal of discussion on this contract: but it seems to me in all these cases that the mere offer of payment of a sum which is received is not in itself an accord and satisfaction. There must be sufficient material in the documents to be seen that it is paid and accepted in full and final settlement. There is nothing here, it seems to me, to come up to that standard at all. An effort was valiantly made by Mr. Coleman on behalf of the airlines. He referred to internal memoranda and internal conversations which had taken place at about that time between the airlines. He pointed to words which were used which, he said, indicated that the airlines were regarding this payment as paid and accepted in full and final settlement of the claim. But those were inter-departmental memoranda on the airlines' side. there is not evidence to suggest that those memoranda were binding on the owners' side at all. So far as concerns the two communications which I have read, the letter of the 1st July, 1967 enclosing the cheque which was put into the bank: and then the formal acknowledgement, "in payment of the claim" - that to my mind is clearly not sufficient to be an accord and satisfaction. It is not sufficient to be a settlement of the case. I agree entirely with the judge on this aspect of the case.
I then turn to the next point in the case. This depends on the wording of the clause together with the terms of the Warsaw Convention. the amending rule 55 of the Warsaw Convention does not apply here because the latter Convention has not been ratified by the United States. We must go back to the original clauses ofthe original Warsaw Convention (they are conveniently appended to Statutory Instrument 1967 No. 480) in order to ascertain the liability of the carrier. I need only read two or three paragraphs of that statutory instrument. Article 18 says: "The carrier is liable for damage sustained in the event the destruction or loss of, or damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage...
To continue reading
Request your trial
-
Anonima Petroli Italiana Spa and Another v Marlucidez Armadora SA (The Filiatra Legacy)
...would have had little difficulty in ensuring that it was not a mere formality. 223 In this respect we note that in Rustenburg Platinum Mines Ltd. v South African Airways [1977] 1 Lloyd's Rep. 564 Ackner J. ordered that, if neither side would call as a witness the airport loader who had been......
-
Nugent and Another v Michael Goss Aviation Ltd and Others
...as to what the results may be." [my emphases] 30 Ackner J put the matter in much the same way in his judgment in Rustenburg Platinum Mines Ltd. v. South African Airways [1977] 1 Ll. 564, at 569 (affirmed [1979] 1 Ll. 19, CA): "… It is common ground that 'wilful misconduct' goes far beyond a......
-
KLM Royal Dutch Airlines v Hamman
...261 (CA(NSW)): referred to R v Dhlumayo 1948 (2) SA 677 (A): dictum at 705 applied Rustenburg Platinum Mines v South African Airways [1979] 1 Lloyds LR 19 (CA): compared S v Van Zyl 1969 (1) SA 553 (A): referred to Siemens v Schenker [2001] NWSC 658: applied Suisse Atlantique Societe d'Arme......
-
Kamidian v Holt and Others
... ... Habsburg (5) Broughton International Inc. Defendants ... Alison ... and more familiar to this court than is the world of fine art. A claim is made against insurers and ... in sending this fax; however, due to the American Airlines cargo strike there has been some ... Rustenburg v. PanAm [1977] 1 Lloyd's Rep. 564 at pages ... egg are numerous – four-colour gold, platinum, diamonds, chalcedony, yellow guilloche enamel ... ...
-
Table of cases
...E.R. 359 (CA) ..........................................................70 Rustenberg Platinum Mines Ltd. v. South African Airways, [1979] 1 Lloyd’s Rep. 19 ..................................................................................................... 55 Samuel Montagu v. Swiss Air, ......
-
Cargo Liability
...Convention. The contributory negligence defence in both Conventions applies to liability for delay of cargo. 43 38 See note 32. 39 [1979] 1 Lloyd’s Rep. 19 40 (2000), 49 O.R. (3d) 374 (S.C.J.). 41 Montreal Convention, art. 19; Warsaw Convention, art. 19. 42 Montreal Protocol No. 4, art. V. ......