Western Digital Corporation v British Airways Plc [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | David Steel J. |
| Judgment Date | 28 June 1999 |
| Date | 28 June 1999 |
| Court | Queen's Bench Division (Commercial Court) |
Queen's Bench Division (Commercial Court).
David Steel J.
Akhil Shah (instructed by Barlow Lyde & Gilbert) for the plaintiffs.
Philip Shepherd (instructed Beaumont & Sons) for the defendants.
The following cases were referred to in the judgment:
American Banana Co v Venezolana Internacional de Aviacion SA (1979) 411 NYS 2d 889
Bart v British West Indian Airways LtdUNK [1967] 1 Ll Rep 239
BRI Coverage Corp v Air CanadaUNK (1989) 725 F Supp 133
Cordial Manufacturing Co v Hong Kong America Air Transport [1976] HKLR 555
Fothergill v Monarch AirlinesELR [1978] QB 108; [1980] 2 Ll Rep 295 (HL)
Gatewhite Ltd v Iberia Lineas Aereas de Espana SAELR [1990] 1 QB 326
Holzer Watch Co Inc v Seaboard & Western Airlines Inc [1958] US & C AvR 141
Johnson (Mary C) v American Airlines Inc (1987) 834 F 2d 721
Leon Bernstein Commercial Corp v Pan Am World Airlines (1979) 421 NYS 2d 587
Manhattan Novelty Corp v Seaboard & Western Airlines IncUNK [1957] 5 Avi 17229
Organon (NV) v Seaboard World Airlines Inc (unreported, 25 May 1971)
Pan American World Airways Corp v SA Fire & Accident Insurance Co [1965] 3 SALR 150
Parke Davis & Co v BOAC [1958] US & C AvR 112
Pilgrim Apparel Inc v National Union Fire Insurance CoUNK [1959] 6 Avi 17733
Polatex Trading Co Pty Ltd v SAS [1984] IATA Rep 652
Rank Precision Industries v Jardine Air Cargo (US) LtdUNK [1987] 20 Avi 18325
Scmoldt Importing v Pan American World AirwaysUNK [1989] 21 Avi 17974
Sidhu v British Airways plcELR [1997] AC 430
Tasman Pulp & Paper Co Ltd v Brambles J B O'Loghlen Ltd [1981] 2 NZLR 225
Carriage of goods by air — Whether claimant had given sufficient notice of claim to carrier in time — Whether owner not named as consignee could claim against carrier — Warsaw Convention, art. 18, 26(2).
This was a summons for the determination of issues of law in a claim relating to the loss of a cargo carried by air.
The second claimant, “Singapore” dispatched to the third claimant, “Netherlands”, a shipment of hard discs. Singapore engaged “LEP” as freight forwarders. LEP acting as agent of the airline, Qantas, issued a Qantas air waybill for the shipment naming LEP as shipper and “Express” as consignee, Express having been engaged by Netherlands to receive the consignment. The consignment was in fact carried by the defendant, “BA”, under the Qantas air waybill. Part of the shipment never arrived. Express, saying that it was acting on behalf of its parent company, advised BA by letter that the consignment was received in a condition which obliged Express to reserve the right to claim against BA as carriers and that full particulars would be furnished as soon as they were ascertained. BA offered to settle the claim for the statutory limit under the Carriage by Air and Road Act 1979. The claimants took proceedings contending that BA could not limit its liability because the goods were stolen with the complicity of BA's servants. BA argued that the claimants had failed to make a claim within 14 days as required by the Warsaw Convention and that the convention afforded no cause of action to a party suing as owner who was not a consignor or consignee. The court was asked to determine whether Express's letter to BA complied with the requirements for notice of complaint in art. 26(2) of the Warsaw Convention; and whether the owner of a consignment who was not named as the consignee was able to claim against the carrier under art. 18 of the Warsaw Convention.
Held, ruling accordingly:
1. Express's letter did emanate from the person entitled to delivery within art. 26(2), even though it was signed for and on behalf of Express's parent company. The letter was written on Express notepaper which noted that Express was a division of the parent company. The letter was a sufficient notice within art. 26(2) because the carrier did make appropriate inquiries into the loss complained of. Since the carrier was able to make pertinent inquiries it followed that it had been put on notice and accordingly it did not matter that objectively speaking the notice might not have been compliant. (Fothergill v Monarch AirlinesELR[1978] QB 108; [1980] 2 Ll Rep 295(HL) applied.)
2. Considering the relevant provisions of the convention it was clear that whether the carriage was single or successive only the consignor or consignee who was entitled to delivery had the right to bring proceedings and not others with some proprietary interest. That was consistent with the vast majority of earlier overseas decisions on the point. The consignee included the person to whom the consignor directed delivery under art. 12 but did not include the consignee's undisclosed principal. Only if the consignor nominated a new person to whom delivery was to be made was someone other than the consignee entitled to delivery and thereby to bring proceedings. (Polatex Trading Co Pty Ltd v SAS[1984] IATA Rep 652 followed; Sidhu v British Airways plcELR[1997] AC 430considered.)
David Steel J: By a summons dated 2 February 1999 the defendants seek determination of various issues which would, at the time of the summons was issued, have been decided under RSC, O. 14A or O. 33 but which now fall to be decided under Pt. 3 or Pt. 24 of the CPR. Nothing turns on any differences between the two sets of procedural rules.
The action arises out a shipment of hard discs for installation in computer equipment which the second claimant (“Western Singapore”) dispatched to the third claimant (“Western Netherlands”). The freight forwarders employed by Western Singapore were LEP International (“LEP”). LEP issued two house air waybills covering the seven pallets which made up the shipment. These air waybills made reference to the “Master Air waybill No 081 SIN 95894934” referred to below. The shippers were named as Western Singapore, and the consignees as Express Cargo Forwarding, the latter having been engaged by Western Netherlands to receive the consignment.
At the same time, LEP, acting as agent of Qantas, issued Qantas Air waybill 08195894934. This named LEP as shipper and Express Cargo Forwarding as consignee. It also recorded that the freight had been pre-paid by Western Singapore. Neither air waybill was negotiable.
The points of claim assert that the contract of carriage between the airline and Western Singapore was contained in or evidenced by the Qantas air waybill. In the event, the consignment was carried by British Airways on flight BA 036 on the 21 June 1996. However three out of the seven pallets were never delivered.
On 28 June 1996, Mr Clive Farr writing on the headed notepaper of Express Cargo Forwarding but describing himself as acting on behalf of Irish Cargo Express Ltd (its parent company) notified the claims department of British Airways as follows:
“Your reference 08195894934
Dear Sirs,
…Please be advised that the above mentioned consignment was received in a condition which obliges us to reserve the right to claim against you as carriers. Brief details are mentioned below but full particulars will be furnished as soon as they are ascertained. You are kindly requested to inform us in writing of your opinion in this matter without delay.”
On 23 July 1996 a letter was sent by Irish Express Cargo Ltd to a representative of the customer relations department at British Airways World Cargo. It referred to the earlier letter of 28 June and formally made a claim on behalf of Western Digital. The letter enclosed some documentation in support of the claim.
The reply was dated 19 August. It read as follows:
“We are in receipt of your formal claim dated 23rd July addressed to our World Cargo Centre in connection with the consignment covered by the above Air waybill. Considering the value we presume the consignment was privately insured and in view of the fact that an air carriers liability is limited by contract we suggest you pursue your claim with the insurers of the consignment.”
By later letter dated 27 April 1998, British Airways offered to settle the claim for £4,921.20 being the statutory limit assessed under the Carriage by Air and Road Act 1979.
The points of claim were served in November 1998. The plaintiffs contended that they were at all material times the owners of the consignment, that the defendant was liable for the loss by virtue of art. 18 of the Warsaw Convention as set out in the first schedule to the Carriage by Air Act 1961 and further that the limits of liability provided for by art. 22 did not apply as the goods were stolen with the complicity of BA's servants.
The points of defence took various points but, in particular:
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(a) that the claim was extinguished because no complaint in writing was despatched within 14 days of receipt of part of the consignment so as to comply with the relevant provisions of the Convention;
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(b) that the Convention affords no cause of action to any party who sues as owner but not as consignee or consignor, the latter having exclusive rights of suit pursuant to the Convention.
(The plaintiffs later sought to amend the points of claim so as to include amongst various other matters a claim under the LEP house air way bill in the following terms:
“3a. Further and in the alternative without prejudice to paragraph 2 herein, if LEP did not act on behalf of the First or Second Plaintiff in concluding the contract with Qantas, then the Second Plaintiff will claim in these proceedings as the consignor named in LEP's house airways bills No 014784 and 041777 which comprised a contract of carriage between the Second Plaintiff and LEP. It is averred as pleaded below at paragraph 8 that the Defendant performed the contract of carriage between the Second Plaintiff and LEP.”)
It is against this background that the summons was issued. It seeks determination of the following points:
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(1) Whether the notice identified in para. 15.3 of the points of defence and para. 8.1 of the points of...
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