|
|
|
| |
Please note that this file does not form part of the House of Lords site. The paragraph numbers may change.
For Tables of Paragraph Numbers and Cases Cited please click here. To get rid of the Tables please click here. (The frames containing the Tables can be scrolled and resized.)
|
| |
Judgments - Fellowes or Herd v. Clyde Helicopters Ltd continued | |
| |
| |
| |
(back to preceding text)
| |
| |
| |
| 59. |
I think that it is reasonably clear from these passages that what both Lord Bridge and Greene L.J. had in mind when they were describing carriage by air in this context was carriage in pursuance of a contract in which, according to the agreement with the parties, there was a place of departure and a place of destination and, where appropriate, an agreed stopping place. That indeed is the way in which the expression "international carriage" is defined for the purposes of the Hague rules in article 1(2) of Schedule 1 to the Act of 1961. The references to passenger tickets and other documents of carriage in chapter II of these rules support this approach. The definition in article 1(2) of Schedule 1 to the Act of 1961 has been omitted from the United Kingdom rules in Schedule 1 to the Order of 1967, as also have the provisions of chapter II in regard to documents of carriage. But other provisions in the rules which refer to a contract of carriage have been retained: see article 30(1), article 31(2) and article 32. And the potential categories of non-Convention carriage which Lord Bridge identified were all described by him with reference to the places of departure and destination and any agreed stopping place.
| |
| 60. |
Two of these categories were appropriate subjects of United Kingdom legislation, as the places were all within the United Kingdom or other British territory or involved a place of departure or destination or an agreed stopping place there as well as a place in the territory of a foreign state. Two of them were not, as the places were all in foreign states or within the territory of a single foreign state. Lord Bridge mentioned, at p. 1132FB, with approval the submission for the respondents that, like the Conventions themselves, the United Kingdom rules had as one of their primary objectives the elimination of conflict of laws problems and that such problems would be as likely to arise, if not excluded by uniform rules, from non-Convention as from Convention carriage. At p. 1132F he emphasised again the obvious desirability, in relation to carriage in category (2), as in relation to "international carriage" within the Convention definition, of uniform rules applicable by British courts for the avoidance of the kind of conflict of laws problems discussed by Greene L.J. in the passage from his judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-77, which he had quoted. The concept of a contract of carriage in which the places of departure and destination and any agreed stopping place were agreed between the parties before the passenger embarked on the aircraft runs right through the whole of his discussion of the purpose and effect of these rules.
| |
| 61. |
The aspects of this case which I have found most troublesome are (1) that there was here no contract between Sergeant Herd and the respondents in regard to which the rules in Schedule 1 of the Order of 1967 could be said to have become statutory terms, and (2) that the contract between the respondents and the police authority in pursuance of which he was a passenger on the helicopter did not provide for a place of departure or destination or any agreed stopping places. The hours of operation of the helicopter and the places to which it was to fly were left open, to be determined by police operational requirements. The helicopter was available to be used for whatever purposes these requirements made necessary. These might involve a journey from one place to another, or a journey in which a round trip was undertaken to provide support to police operations from the air before returning to the place of origin. A description of the categories of carriage by air by reference to the way in which passengers are normally carried by airline operators is wholly inappropriate for the kind of carriage by air which was involved in this case, where the helicopter was made available to the police authority as a means of conducting police operations from the air.
| |
| 62. |
As I mentioned in Sidhu v. British Airways Plc. [1997] 2 W.L.R. 26, 36D under reference to the discussion of this point in Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251, it is now well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country. If the United Kingdom rules had been designed to deal exclusively with carriage performed within the United Kingdom, there might have been no need to follow this approach in the interpretation of the United Kingdom rules which were derived from the Conventions. But the same rules apply also to 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, in order to eliminate the same kind of conflict of laws problems as between these two states as those which gave rise to the Conventions. Schedule 1 to the Order of 1967 was not made in order to give effect to any treaty obligations of the United Kingdom, but uniformity of interpretation is nevertheless important. All those who are involved in carriage by air, whether as carriers or as passengers, and their insurers should be able to assume that the same law applies no matter where the event occurs or where the forum is for the dispute: Grein v. Imperial Airways Ltd., per Greene L.J. [1937] 1 K.B. 50, 74-75. In this situation I think that it is appropriate to have regard to the purpose and subject matter of the Conventions and to decisions of foreign courts in regard to the Conventions in order to resolve the issue whether the phrase "carriage by air" in article 1 of Schedule 1 to the Order of 1967 is wide enough to involve the circumstances in which Sergeant Herd was being carried by the helicopter when it crashed and he was killed.
| |
| 63. |
So far as the purpose and subject matter of the Conventions is concerned, the question is whether there is anything in them which is in conflict with the respondent's argument that a wide construction should be given to these words in the United Kingdom rules. Having had the benefit of studying the minutes of the Second International Conference on Private Aeronautical Law, 4 to 12 October 1929 at Warsaw in the course of the argument in Sidhu v. British Airways Plc. [1997] 2 W.L.R. 26, 36, I do not believe that there is any such conflict. The discussion at the Warsaw Convention was of course concerned only with international carriage by air. There was no need for any agreement as to carriage performed within the territory of one state, as in that situation there was not likely to be any difficulty about the law which was applicable. The whole discussion took place also in the context of what was known at that time about the uses to which aircraft could be put. It was understandable, and probably inevitable, that that discussion should have been carried on with reference to the practice of the airline industry at that time, by which aircraft were increasingly coming to be used as a means of transporting people and goods from one place to another under contracts of carriage with a variety of provisions about liability, limitation of liability, time limits and jurisdiction. The Warsaw Convention did not purport to deal with all matters relating to contracts of international carriage by air. But it is clear that what was sought to be achieved was a uniform international code which could be applied to all such contracts. One of the objects of the Convention was to encourage the development of the airline industry, which it was felt might be unduly inhibited by the increasing legal complexity of conducting a business of that kind across international frontiers. The aim was to reduce the opportunity for litigation and to provide a more definite and equitable basis on which airline operators could negotiate rates with their insurers.
| |
| 64. |
The terms of the Convention seem to me to support this approach. Article 1(1) of the Warsaw Convention, which was repeated without amendment in the Hague Convention, states that it applies to "all" international carriage of persons, baggage or cargo performed by aircraft for reward, and "equally" to gratuitous carriage by aircraft performed by an air transport undertaking. There are some express exclusions, such as in respect of domestic carriage in view of the definition of international carriage in article 1(2) and in respect of mail and postal packages in article 2(2) --neither of which apply to the rules in Schedule 1 to the Order of 1967. But the starting point is the generality of effect indicated by the use of the word "all." The nationality or place of business of the carrier is irrelevant, as all carriers who undertake international carriage, as defined in article 1(2), of passengers, baggage or cargo by aircraft are bound by the Convention. There is nothing in the Convention to indicate that the purpose for which the passenger, baggage or cargo was on the aircraft has any bearing on the question whether the Convention applies.
| |
| 65. |
In my opinion the Convention agreed at Warsaw, as amended at the Hague, was intended to be, and is, capable of accommodating changes in the practice of airlines and aircraft operators with regard to the purposes of which aircraft are used to carry people and goods, and in the contractual arrangements in pursuance of which people and goods are carried by air for reward. For this reason I think that it is proper to read Lord Bridge's discussion in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112 and Greene L.J.'s judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50 from which he quoted as having been framed with reference to the particular subject matter with which they were dealing at the time. In each of these cases the subject matter was carriage by air of the ordinary kind in pursuance of a contract between the airline and the passenger by which places of departure and destination had been agreed. It seems to me, that when regard is had to the desire to lay down a uniform international code which would achieve equity between the carrier and the user of his services, there is no necessary conflict between what they said in these cases and the wider interpretation of the phrase "carriage by air" for which the respondents contend in this case.
| |
| 66. |
As for decisions in the foreign courts, we were referred to several French cases which appeared to indicate that the view has been taken consistently in the French courts that it is necessary to consider the purpose for which the passenger is being carried on the aircraft, and that where this is to go to work either on or from the aircraft while it is airborne this is not for the purpose of transport within the meaning of the Convention. In Sté Mutuelle d'Assurance Aériennes v. Gauvain (1967) 21 R.F.D.A. 436, it was held by the Cour de Cassation that the law of 2 March 1957 by which the rules of the Warsaw Convention were applied to domestic air transport within France did not apply to regulate the liability of the air carrier for the death of a student pilot while undergoing a flying lesson. In Aéro-Club de l'Aisne v. Klopotowska (1970) 24 R.F.D.A. 195 the accident occurred during a test flight, which did not have the purpose of carrying people or goods from one point to another according to the definition of air transport in article 113 of the Civil Aviation Code, so it was held by the Cour de Cassation that the law of 2 March 1957 did not apply. In Ortet v. Georges (1976) 30 R.F.D.A. 490, the aircraft had been leased for the taking of aerial photographs and it was held by the Cour d'Appel de Paris that the flight did not have the character of air transport. The same approach was taken in Barnes v. Service Aérien Français (1993) 47 R.F.D.A. 343, where a helicopter was being used to airlift a man who had suffered a skiing accident to hospital and the Cour d'Appel de Paris held that the provisions of the Warsaw Convention as applied by Law 321.3 of the Civil Aviation Code did not apply.
| |
| 67. |
These decisions all support the argument which Mr. Jones presented with great skill on behalf of the appellants that Sergeant Herd was on board the helicopter not in pursuance of a contract of carriage but in pursuance of his duties as a police officer. But we were shown a commentary on the decision in Aéro-Club de l'Aisne v. Klopotowska, 24 R.F.D.A. 195, which suggests that opinion in France was divided on this point, and that some decisions in the French courts had taken the view that the law of 2 March 1957 was of general application to all cases where there is air transport. In any event the fact that the jurisprudence in one country has adopted an interpretation of the Convention which supports Mr. Jones's argument is not in itself a compelling reason for holding that we should follow the same approach in our interpretation of article 1 of Schedule 1 to the Order of 1967. As in Sidhu v. British Airways Plc. [1997] 2 W.L.R. 26, 45G, where it was observed that the United States from which a number of decisions were cited in that case was only one jurisdiction amongst many, the same point can be made about cases cited from the French courts. It cannot be assumed that the view which appears to have been formed in France is the same as that which would be taken in other countries which are party to the Conventions.
| |
| 68. |
The only other jurisdictions from which decisions were cited to us were Canada and the United States. In the Canadian case, Johnson Estate v. Pischke (1989) 1 S. & B. Av. R. 337 it was held that a trainee pilot who had been at the controls of an aircraft engaged on an international flight was not a passenger for the purposes of the Warsaw Convention. That case however was concerned with the meaning to be given to the word "passenger," not with the question what was meant by "carriage by air" for the purposes of the Convention. Halvorson J. said, at p. 342, that he had drawn support for his conclusion from the decision in Sté Mutuelle d'Assurance Aériennes v. Gauvain, 21 R.F.D.A. 436, but he made it clear that he preferred to base his decision on the meaning of "passenger" and not on the question whether the flight was the type of flight which was governed by the Convention. None of the United States cases, all of which were decisions in the Federal Courts on appeal, except Block v. Compagnie Nationale Air France(1967) 386 F.2d. 323, was concerned with that issue. In In re Mexico City Aircrash of 31 October 1979(1983) 17 Avi. 18,387, in which the person killed was a flight attendant who although employed by the airline was not working on the flight as she was travelling from her home to Mexico City where she was to work as a flight attendant on another flight, and Sulewski v. Federal Express (1991) 23 Avi. 17,685, in which the person killed was an aircraft mechanic who had been assigned to the flight by the airline, the question was whether these persons were on the aircraft at the time of the accident as passengers. Mertens v. Flying Tiger Line Inc., (1965) 341 F.2d. 851 and Warren v. Flying Tiger Line (1965) 352 F.2d. 494 were both concerned with the requirement for a ticket to be provided to the passenger before boarding the aircraft for an international flight subject to the Convention.
Block v. Compagnie Nationale Air France was concerned with the question whether the Warsaw Convention applied to a voyage charter by which an aircraft had been chartered to carry passengers on an international flight. The charter had been negotiated by a third party on behalf of the passengers. The case is of interest because of the opinion which was expressed by Judge Wisdom, 386 F.2d 323, 330 that the charter flight could not come within article 1(2) of the Convention if the places of departure, stopping places and destination of the flight were not stated in the charter and that the application of the Convention is premised upon a contract of carriage that arises from the relationship between a carrier and the passengers. At p. 334 he said that for a flight to come within the scope of the Warsaw Convention the carrier must have agreed to carry the passenger and that both the carrier and the passenger must have consented to the particular route. Here again these observations at first sight would seem to support Mr. Jones's argument. But I have not found anything in the discussion of that case to indicate that Judge Wisdom had in mind the question whether a flight of the kind which was being undertaken in this case was included within carriage by air within the meaning of that phrase as used in the Convention.
| |
| 69. |
On balance therefore, while I have not found the decision in this case to be an easy one, I have come to the conclusion that we are not compelled by the Conventions which form the background to the Order of 1967 or by the decisions in the foreign courts to which we were referred to depart from the plain meaning of the words used in Schedule 1 to the Order of 1967. Although this decision may seem harsh in the present case, it should not be forgotten that one of the advantages of excluding the rules of the common law is that the United Kingdom rules are designed to impose liability on the carrier without proof of fault in respect of the death of or injury to passengers and to nullify contractual provisions the effect of which would be to relieve the carrier of liability or to restrict his liability in amount. These are significant advantages, as it may be very difficult to prove where fault lies when an aircraft has been destroyed in an air crash and all those who were on board the aircraft have lost their lives, and in view of the opportunities which would otherwise be available to those who provide carriage by air to exclude or restrict their liability. In M'Kay v. Scottish Airways Ltd. 1948 S.C. 254, 263 Lord President Cooper remarked on the amazing width of the conditions and the effort which had evidently been made to create a leonine bargain under which the passenger took all the risks and the carrier accepted no obligations. In that case a mother&!!;s claim for damages for her son&!!;s death was held to have been excluded by the conditions printed on the ticket which had been issued to the son as a fare-paying passenger. A bargain of that kind would now be vulnerable to the provisions of the Unfair Contract Terms Act 1977, but the rules in Schedule 1 to the Order of 1967 provide greater certainty so that both parties to the arrangement may now know where they stand and can make their own arrangements with their insurers accordingly.
| |
| 70. |
For these reasons and for the reasons given by my noble and learned friend, the Lord Chancellor, I also agree that this appeal must be dismissed.
| |
| 71. |
I should like to add some observations with regard to the motions which were made to us on the matter of expenses. This appeal has been brought by Mrs. Herd in her capacity not as an individual, although she is a pursuer in that capacity in the Court of Session, but only as guardian of her four children and by Mrs. Rivera, who is the mother of Sergeant Herd. The appellants had the benefit of civil legal aid for the purpose of the proceedings in your Lordships' House under section 14 of the Legal Aid (Scotland) Act 1986 and regulation 4 of the Civil Legal Aid (Scotland) Regulations 1987 (S.I. 1987 No. 381 (S.-31)). As each of them was given the benefit of legal aid on a nil contribution, it is appropriate that their liability under the award of expenses which must follow from the respondents' success in this appeal should be modified to nil under section 18(2) of the Act of 1986.
| |
| 72. |
Mr. Keen then asked us to make an order under section 19 of the Act of 1986 for the payment out of the Scottish Legal Aid Fund of the expenses which had been incurred by the respondents in this appeal. Mr. Jones pointed out in his reply that section 19(1) of the Act of 1986, as amended by paragraph 8 of Schedule 4 to the Legal Aid Act 1988, provides that such an award may only be made in any proceedings which are "finally decided" in favour of an unassisted party. He submitted that a decision in this appeal would not finally determine the proceedings in this case, as it must now be returned to the Court of Session for a proof to be heard on other matters which are still in dispute.
| |
| 73. |
In Moss v. Penman (No. 2), 1994 S.L.T. 602 the pursuer in a sheriff court appeal successfully resisted an appeal to the Inner House by the defender on a question of relevancy. It was held that on a proper construction of the provisions of section 19 of the Act of 1986 it was for the court in which the proceedings were "finally determined" to deal with this matter, and that the motion which was made at the stage of the disposal of that appeal was premature. At first sight that decision may be thought to support Mr. Jones' submission that Mr. Keen's motion for an order under section 19 to be made at this stage was premature. But in Megarity v. D. J. Ryan & Sons Ltd. (No. 2)[1982] A.C. 81 it was held that on the true construction of the Legal Aid Act 1974 all proceedings on appeal to an appellate court in any action, cause or matter were to be treated as separate proceedings from the proceedings in the same action in the court of first instance from which the appeal was brought, and that an interlocutory appeal to the Court of Appeal constituted separate proceedings for the purposes of section 13 of that Act. Lord Diplock pointed out, at p. 107A-B that, where there was an appeal to an appellate court, the only court that could make an order under section 13(1) was the appellate court, as section 13(3) plainly contemplated that, in the event of an appeal, an order relating to the unassisted party's costs at first instance might be made by the appellate court by which the proceedings were finally decided: see also Shiloh Spinners Ltd. v. Harding (No. 2)[1973] 1 W.L.R. 518. Section 13(1) of the Act of 1974 was in similar terms to section 19(1) of the Scottish Act of 1986 as amended by the Legal Aid Act 1988, Schedule 4, paragraph 8, and the corresponding subsection in the Act of 1986 to section 13(3) of the Act of 1974 is section 19(3).
Without wishing to cast doubt on the soundness of the decision in Moss v. Penman (No. 2), except to point out that the Inner House was not referred to Megarity v. D.J. Ryan & Sons Ltd. (No. 2) or Shiloh Spinners Ltd. v. Harding (No. 2) in the course of the discussion in that case, I consider that the matter is resolved, so far as your Lordships' House is concerned, by what was decided in the Megarity. The appellants were given legal aid for the purpose of this appeal, which has now been finally determined, and there is no appeal from a decision in your Lordships' House. For these reasons this is the appropriate stage for an order under section 19 to be made. I consider that, subject to an opportunity being given to the Scottish Legal Aid Board to make representations to the contrary, it would be just and equitable that such an order be made in this case.
LORD CLYDE,
My Lords,
| |
| 74. |
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.
|
