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  Judgments - Fellowes or Herd v. Clyde Helicopters Ltd   continued  
 
 
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36.               Although in the passage cited from Greene L.J. in Grein v. Imperial Airways Ltd. [1937] K.B. 50, 74-77, by Lord Bridge of Harwich and Lord Jauncey of Tullichettle in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112, 1124, 1129, 1139, refers to the Convention provisions operating by imposing statutory terms upon contract of carriage, this aspect of the matter was not an issue in your Lordship's House in Holmes and, in the decision in Grein itself, Greene L.J. did in fact deal with the position of the relatives on the footing that it was covered by the terms of the Convention in the result.
 
37.               As I have said, in the very well prepared and careful argument to which your Lordships were treated, a number of decisions were referred to. None of them dealt with the terms of the Order with which your Lordships are concerned in the present case. Insofar as they dealt with the Warsaw Convention either as originally agreed upon, or as modified at the Hague, they dealt with provisions very substantially different in important respects from those with which we are concerned in the Order. In particular, the ticketing provisions are fundamental in those Conventions to the limitation of liability, since the delivery of a ticket with the appropriate notice of limitation is generally essential to the application of the limitation provisions which involves a relationship between, for example, the passenger and the carrier which is not necessary in the Order.
 
38.               The cases in the United States and Canada and all but two of the French decisions could be explained on the basis that if there is a relationship between the carrier and the person carried in addition to, or distinct from, the relationship of the person carried and the carrier, such as, for example, where the person being carried is an employee of the carrier with duties connected with the conduct of the flight, the liability under such relationship is not affected by limitations on the liabilities incurred as carrier.
 
39.               I now turn to look at the decisions which have been relied upon from foreign courts in some more detail. The first is Block v. Compagnie Nationale Air France (1967) 386 F.2d. 323 which was a case in which the Atlanta Art Association arranged for a flight from the United States to France and to return, Air France being the operator of the plane in respect of which each passenger was issued with a ticket which referred to the Warsaw Convention liability limitation when it was held that the Warsaw Convention applied to it. In the majority judgment the United States Court of Appeals for the Fifth Circuit gave an account of the history of the Warsaw Conference and resulting Convention which is of interest and supplements to some extent the history to which I have already referred of the statutory provisions in this country given in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112. In particular, at p. 327, the court quoted an explanation given by Secretary of State Cordell Hull in transmitting the Warsaw Convention to the United States Senate in 1984 in these terms:
    "It is believed that the principle of limitation of liability will not only be beneficial to passengers and shippers as affording a more definite basis of recovery and as tending to lessen litigation, but that it will prove to be an aid in the development of international air transportation, as such limitation will afford the carrier a more definite and equitable basis on which to obtain insurance rates, with the probable result that there would eventually be a reduction of operating expenses for the carrier and advantages to travellers and shippers in the way of reduced transportation charges. . . . The principle of placing the burden on the carrier to show lack of negligence in international air transportation in order to escape liability seems to be reasonable in view of the difficulty which a passenger has in establishing the cause of an accident in air transportation."
 
40.     A good deal of the judgment was taken up with examining whether the Warsaw Convention could apply to charter flights and concluded that it could apply to some while it might not apply to others. The court said, at pp. 333-334:
    ". . . that is needed to establish the requisite contract is a promise, an undertaking, on the part of the carrier to transport the passenger and the consent of the passenger." (This is on the basis that the company in that case was an air transportation enterprise.)

    "The contract plays a role fundamental to the objectives of the Warsaw Conference. The obligations arising from the contract between the carrier and the passenger carry out the Conference goal that the rules of limited liability be known to both parties. The knowledge enables the passenger to determine in advance the amount of insurance he needs; permits the carrier's insurer to gauge the carrier's long-term risk, and act accordingly; and, finally, advises the carrier as to what law it need conform its transportation documents. This rationale--that the flight arrangements must be based upon an agreement because only in that way can the necessary knowledge or foreseeability be achieved--implies that as long as there exists an agreement between the carrier and the passenger as to transportation and as to places of departure and arrival, any agreement between the owner-carrier and a third person, the charterer, is irrelevant to Warsaw purposes."
 
41.     That observation applies to the Warsaw Convention in the light of the ticketing provisions, but as I have already noted the ticketing provisions are absent from the Order which applies in the present case. At p. 334 the court said:
    "The existence of the airline-passenger relationship is not destroyed by the fact that a third party negotiated the agreement and signed the charter."
 
42.               Accordingly, when one allows for the fact that the ticketing provisions of the Warsaw Convention are not included in the Order, there is nothing in this decision to cast doubt on the view which I have taken.
 
43.               In Sulewski v. Federal Express Corporation (1991) 23 Avi. 17,685, a decision of the United States Court of Appeal for the Second Circuit, the deceased was a mechanic held to be travelling not as a passenger but as an employee of the air carrier and accordingly the court held that the limitations did not apply to him.
 
44.               In Mertens v. Flying Tiger Line Inc. (1965) 341 F.2d 851 the Warsaw Convention was held not to apply since the ticket contained only an unreadable notice of limitation and it was not delivered to the passenger until after he had boarded the aircraft. In Warren v. Flying Tiger Line Inc. (1965) 352 F.2d. 494 it was again held that the Warsaw Convention did not apply as the ticket had not been timously delivered. The decision in In re Mexico City Aircrash of 31 October 1979 (1983) 17 Avi. 18,387 turned on whether or not the persons being carried were being carried merely as passengers of the airline or in their capacity as employees of the airline. Without examining the decision in detail I think it is sufficient to say that the question whether or not the Warsaw Convention applied was decided to depend on whether or not the person carried was an employee of the carrier and travelling in that capacity, in which case the Warsaw Convention would not apply whereas though an employee, the person being carried was being carried truly as a passenger with no responsibility in connection with the operation of the flight and without being obliged to travel as an employee on that particular flight, the Convention would apply.
 
45.               I turn now to Sté Mutuelle d'Assurance Aériennes v. Gauvain (1967) 21 R.F.D.A. 436, a French decision on the domestic law of France which is quite different from the Order with which this case is concerned. In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention insofar as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event. This case was followed in Canada in Johnson Estate v. Pischke (1989) 1 S. & B. Av. R. 337. Aéro-Club de l'Aisne v. Klopotowska (1970) 24 R.F.D.A. 195 was in respect of a test flight which certainly involved obligations distinct from that of mere carriage between a person on the aircraft and the Club operating the aircraft. Ortet v. Georges (1976) 30 R.F.D.A. 490 was concerned with an aerial survey for which the instructions were contained in a verbal arrangement not at all detailed and which certainly did not specifically provide for carriage and in which the arrangements for remuneration are not detailed. Barnes v. Service Aérien Français (1993) 47 R.F.D.A. 343 was a case of rescue in which it appears clear that the private helicopters of the Public Limited Company Service Aérien Français, whose work involved the provision of aid to persons in difficulty, were placed at the disposal of the state financed civilian rescue organisation as rescue means to be used in the event of an accident occurring on the ski slopes, and that no remuneration was provided for in favour of the Company Service Aérien Français for any of its operations, not even for those of its pilots and assistants. Finally, in Cie U.T.A. v. Fichou (1983) 38 R.F.D.A. 444 there was clearly a contract of employment between the carrier and the person injured.
 
46.               This brief examination of the authorities that were referred to in my opinion gives no occasion to alter the view which I have formed on the basis of applying the words of the Order to the circumstances of the present case where there was no arrangement of any kind between Sergeant Herd and the respondents except that of a person carried to the carrier. I also agree with my noble and learned friend, Lord Hope of Craighead that the other considerations with which he has dealt fully do not require an alteration of the view which I had formed.
 
47.               I also agree with him that it is appropriate to deal with the legal aid situation in the manner he has proposed.
 
48.               I am therefore of the opinion that this appeal should be refused, that the appellants should be found liable as assisted persons to the respondents in the costs of this appeal, that their liability should be modified to nil and that the Scottish Legal Aid Board should be found liable to the respondents, subject to this being intimated to them and their having an opportunity to respond, in the costs of the respondents in this appeal.



LORD NICHOLLS OF BIRKENHEAD,


My Lords,

 
49.               I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. For the reasons he gives, with which I agree, I would dismiss this appeal.



LORD HOFFMANN,


My Lords,

 
50.               I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. For the reasons he has given, I too would dismiss this appeal.



LORD HOPE OF CRAIGHEAD,


My Lords,

 
51.               The question in this appeal is whether the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) applies so as to regulate the liability of the carrier, where a police officer who was on board an air support unit helicopter sustained fatal injuries when it was being operated by the respondents under a contract with Strathclyde Regional Council as the police authority. It is not disputed that, if the Order applies, the provisions of Schedule 1 to the Order provide the exclusive cause of action and sole remedy for the appellants, who claim damages from the respondents for the loss which they have sustained as a result of the death of the police officer.
 
52.               I do not think that this question gives rise to any real difficulty on the facts of this case if their ordinary meaning is to be given to the words used in the Order and in the relevant articles of the Schedule. Paragraph 3 of the Order states that the Order is to apply to all carriage by air, not being carriage to which the amended Convention (that is, the Convention concerning international carriage by air known as "the Warsaw Convention as amended at the Hague, 1955") applies. Article 1 of Schedule 1 states that the Schedule applies to all carriage of persons, baggage or cargo performed by aircraft for reward. Article 17 states that the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
 
53.               Sergeant Herd was being carried by air in the helicopter when it crashed, and the carriage was being performed for reward by the respondents under their contract with the police authority. It is not suggested that the surveillance and detection duties on which Sergeant Herd was engaged at the time involved him at any stage in the handling of the helicopter. It is a matter of admission that the flying of the helicopter was a matter for which the pilot, Captain Pryke, was solely responsible. Although Sergeant Herd was on board the helicopter in the course of his duties as a police officer, he was there merely as a passenger so far as the performance of the contract of carriage for reward was concerned. There is no suggestion that he was travelling on a route from one place to another which had been pre-determined by the contract with the carrier before the helicopter became airborne. The contract between the respondents and the police authority was one by which the helicopter was made available to the police authority under what was in effect a time charter. It appears that its primary function was to enable police officers to carry out police operations while the helicopter was in the air. But the terms of the order and the relevant articles of the Schedule are so widely expressed that these features of the present case, which distinguish it from the ordinary case where a contract of carriage is entered into for the transportation of a passenger on a route which has been pre-determined, are not sufficient to prevent the application of the rules as set out in the Schedule to the liability of the respondents to Sergeant Herd's relatives for the consequences of his death.
 
54.               The point which has caused me difficulty is whether the Order and the relevant articles can properly be given such wide meaning, in view of the context in which the Order was made and the extent of the power which was being exercised. The Order was made under section 10 of the Carriage by Air Act 1961 and section 5(2) of the Carriage by Air (Supplementary Provisions) Act 1962. The Act of 1962 gave force of law in the United Kingdom to the Convention which was adopted at Guadalajara, Mexico on 18 September 1961 which was supplementary to the Warsaw Convention of 12 October 1929 as amended at the Hague on 28 September 1955. We are not concerned here with the Act of 1962. In the present case it is the Warsaw Convention concerning international carriage by air as amended at the Hague, to which force of law was given by the Act of 1961, which provides the relevant background. The long title to the Act of 1961 states that it is an Act to give effect to that Convention and to enable the rules contained in it to be applied, with or without modification, in other cases and, in particular, to non-international carriage by air. Section 10(1) of the Act of 1961 provides:
    "Her Majesty may by Order in Council apply Schedule 1 to this Act, together with any other provisions of this Act, to carriage by air, not being carriage by air to which the Convention applies, of such descriptions as may be specified in the Order, subject to such exceptions, adaptations and modifications, if any, as may be so specified."
 
55.               In Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112 it was held that the Order of 1967 could have no wider scope and effect than was clearly authorised by the enabling power conferred by section 10(1) of the Act of 1961. The question which arose for decision in that case was whether the Act of 1961 and the Order of 1967 were intended by Parliament to apply to an air accident in Bangladesh on an internal domestic flight which was not governed by any international convention. The language and structure of the Order was wide enough to have that effect, but it was held that the power in section 10(1) had to be construed subject to the presumption that Parliament was not to be taken, by the use of general words, to legislate in the affairs of foreign nationals who did nothing to bring themselves within its jurisdiction. Lord Bridge of Harwich said, at p. 1126F:
    "the Order of 1967 can have no wider scope and effect than is duly authorised by the power conferred by section 10 of the Act of 1961 to legislate by Order in Council. If that power is unlimited, the scope of its exercise by the Order will be a matter to be determined on the true construction of the Order. But if on the true construction of section 10 the enabling power is itself limited, then it is axiomatic that the Order cannot exceed that limit. Accordingly, it seems to me that the essential prior question to be answered, before attempting to construe the Order, is whether the words in section 10 'carriage by air . . . of such descriptions as may be specified' ought to be read as subject to any limitation."
 
56.               In the present case the presumption against extra-territorial legislation is not in issue, as the accident occurred in the United Kingdom when the police officer was engaged on duties within the area of his police authority. But it is plain both from the long title to the Act of 1961 and from the wording of section 10 that the enabling power was given so that a modified version of the Convention might be enacted to provide a set of rules governing all carriage by air not falling within the definition of "international carriage" to which the Convention applies. As Lord Bridge pointed out, at p. 1126FB-C, there are thus now three sets of rules in the law of the United Kingdom and other British territory which govern different categories of carriage by air. These are the Hague rules in Schedule 1 to the Act of 1961, the Warsaw Rules in Schedule 2 to the Order of 1967 and the United Kingdom rules in Schedule 1 to the Order of 1967.
 
57.               In regard to the general character and purpose of the Warsaw and The Hague rules, which are authorised to be applied by Order in Council to non-Convention carriage by air with or without exceptions, adaptions and modifications, he said that the rules have these features in common, at p. 1129F:
    "They impose liability on the carrier without proof of fault in respect of the death of or injury to passengers and damage to or loss of baggage or cargo which the carrier, however, may rebut by proving certain matters in relation to the relevant causative effect. They impose limits on the amount recoverable in respect of the relevant death, injury, loss or damage. They nullify contractual provisions tending to relieve the carrier of liability or to lower the applicable limits of liability. They allow, however, recovery against the carrier of an amount in excess of the relevant limit if the claimant can prove certain matters in relation to the relevant causative event. Actions for damages pursuant to the rights given by the rules can only be brought subject to the rules and are to the exclusion of other remedies. Such actions must be brought within a time limit. Perhaps most important of all, each set of rules contains a provision to prevent avoidance of the rules by any contractual term 'deciding the law to be applied.' Thus, if a carrier undertakes carriage by air to which the rules apply, he cannot contract out of the rules by a choice of law clause."
 
58.               Lord Bridge then quoted from Greene L.J.'s judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-77, where the philosophy underlying the Warsaw Convention is described. In the course of this part of his judgment, at p. 74, Greene L.J. said that, when by the appropriate machinery, the rules are given the force of law in the territory of a High Contracting Party they govern the contractual relations of the parties to the contract of which, to use language appropriate to the legal systems of the United Kingdom, they become statutory terms. Lord Bridge then said, at p. 1131F:
    "The United Kingdom rules have the same common features as those to which I have drawn attention in the Warsaw and Hague rules. In authorising the application of such rules, based on or adapted from The Hague rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation? Just as the character of 'international carriage' in the Convention definition is determined by reference to the places of departure and destination and agreed stopping places 'according to the agreement between the parties,' so may the potential categories of non-Convention carriage to which the United Kingdom rules might apply be similarly distinguished. It seems to me that four distinct categories fall for consideration. (1) Carriage in which the places of departure and destination and any agreed stopping places are all within the United Kingdom or other British territory. (2) Non-Convention carriage involving a place of departure or destination or an agreed stopping place in a foreign state and a place of departure or destination or an agreed stopping place in the United Kingdom or other British territory. (3) Non-Convention carriage between places of departure and destination in two foreign states with no agreed stopping place in the United Kingdom or other British territory. (4) Carriage in which the places of departure and destination and any agreed stopping places are all within the territory of a single foreign state, being either a Convention or a non-Convention country."