Abnett v. British Airways Plc (Scotland) [1996] UKHL 5
Citation:Abnett v. British Airways Plc (Scotland) [1996] UKHL 5
Rule of thumb:How do you sue an airline if they have lost your baggage or caused you undue delay? The usual method is the interpretation of international treaties which have been ratified by the UK Parliament. The common typically is obsolete in making these arguments. New and detailed statutes can in some instances make the common law obsolete. These provisions basically just have to be read & interpreted.
Background facts:
The facts of this case were the pursuers were flown into Kuwait when a war was starting – this of course caused delays & baggage disruptions as well as stress.
Parties argued:
The pursuers argued that the airline breached their common law duties in doing this. When the pursuer arrived they were detained and suffered losses of baggage as well as significant psychological injuries from being detained in jail in Kuwait.
Judgment:
The Court held that the airline had not breached the Warsaw Convention and that this was the law that applied in this matter rather than the common law, meaning that the pursuers did not successfully obtain damages. This case affirmed the general jurisprudence point that in some instances & subjects, particularly carriage by air, the law tends to be regulated by International Treaties which have been ratified by the national Parliament, rather than the national Parliament having a thorough debate on what the law in the subject should be, and one of these subjects is carriage by air. The Court in this case held that it is strictly the Warsaw Convention that largely regulates death or personal injury on board a flight, delays, loss of baggage or damage to baggage. This case attempted to broaden the range of laws that could regulate this arrangement to include the common law and did not succeed – any arguments against airlines are largely made around the Warsaw Convention rules, as incorporated into UK law by statute, and the individual contract. This case demonstrates how some new Acts introduced make the common law obsolete as a source of law.
Ratio-decidendi:
‘THE FACTS ... The plaintiffs state that they were detained by the Iraqi forces until about 21 August 1990. In their particulars of injuries they allege that they suffered physical and psychological injuries. These included mental injury comprising stress and anxiety and possible permanent psychological damage as a result, and bodily injury comprising loss of weight, eczema and excessive menstrual bleeding. They also claim for loss of baggage amounting to £2,562.93 as special damages. Their action has been based entirely on negligence at common law. The negligence relied on in their particulars falls under three heads: landing their aircraft in Kuwait when the respondents knew or ought to have known of the hostile situation between Kuwait and Iraq and the possibility that war might break out and Kuwait be invaded; flying their aircraft into a war zone or war situation; and failing to divert their aircraft to a safer airport for refuelling when they knew or ought to have known that Kuwait airport was at risk of being attacked or invaded. They make no claim against the respondents under article 17 of the Convention.... THE ISSUE - Although there are some differences of detail between the two actions - the pursuer claims only for psychological injury, while the plaintiffs claim also for bodily injury and loss of baggage, and the pursuer's claim is for breach of contract while the plaintiffs' claim is in negligence - the issue of law which arises in both of these appeals is the same. It is whether the Warsaw Convention as amended at The Hague, 1955 provides the exclusive cause of action and remedy in respect of claims for loss, injury and damage sustained in the course of, or arising out of, international carriage by air. If the answer to that question is in the affirmative, it is accepted that the claims which have been brought in each case for damages at common law for personal injury must be dismissed. It is not disputed that the plaintiffs' claim for loss of baggage must be dismissed also, on the additional ground that it was brought outwith the period of two years referred to in article 29 of the Convention after which the right to damages under the Convention is extinguished. It is common ground, for reasons to which I shall return later, that neither the pursuer nor the plaintiffs have any claim against the respondents under article 17 of the Convention in respect of their personal injuries.... CONCLUSION - I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the High Contracting Parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law. An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up. The broad principles which provide the foundation for the law of delict in Scotland and of torts in the English common law have been developed upon these lines. No system of law can attempt to compensate persons for all losses in whatever circumstances. But the assumption is that, where a breach of duty has caused loss, a remedy in damages ought to be available. Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract. Exclusion and limitation clauses are a common feature of commercial contracts, and contracts of carriage are no exception. It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity. All the obvious cases in which the carrier ought to accept liability were provided for. But, as one of the French delegates to the Warsaw Convention, Mr. Ripert, observed (Minutes p. 73) when the definition of the period of carriage was being discussed, there are an infinite variety of cases not all of which can be put in the same formula. No doubt the domestic courts will try, as carefully as they may, to apply the wording of article 17 to the facts to enable the passenger to obtain a remedy under the Convention. But it is conceded in this case that no such remedy is available. The conclusion must be therefore that any remedy is excluded by the Convention, as the set of uniform rules does not provide for it. The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme. The Convention is, of course, tightly drawn on these matters. This has been done in the interests of the carrier, whose exposure to these liabilities without the freedom to contract out of them was a principal consequence of the system which it laid down. Were remedies outside the Convention to become available, it would encourage litigation in other cases to restrict its application still further in the hope of obtaining a better remedy, against which the carrier would have no protection under the contract. I am in no doubt that the Convention was designed to eliminate these difficulties. I see no escape from the conclusion that, where the Convention has not provided a remedy, no remedy is available. For these reasons I would dismiss both appeals’, Lord Hope
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.