Law Report: Passengers held by Iraqis cannot sue BA

Abnett (known as Sykes) v British Airways plc; Sidhu and others v British Airways plc; House of Lords (Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn, Lord Hope of Craighead) 12 December 1996

The Warsaw Convention provided the exclusive cause of action and sole remedy for a passenger who claimed against an air carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.

The House of Lords dismissed two appeals by passengers seeking to claim damages at common law against British Airways for physical and psychological injuries arising out of their captivity by Iraqi forces during a refuelling stop at Kuwait shortly after the commencement of the Gulf War on 2 August 1990.

The passengers had been on a scheduled flight, BA149, from London to Kuala Lumpur by way of Kuwait and Madras. It was said that BA should have known its passengers would be at severe risk if the aircraft were to land in Kuwait after hostilities had begun.

The passengers' actions against BA had been dismissed on the ground that claims for damages for personal injuries arising from an international flight could only be pursued under the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air, as amended at The Hague in 1955, and scheduled to the Carriage by Air Act 1961, and the view was taken that under article 17 of that Convention they had no remedy.

Article 17 provides:

The carrier is liable for damage sustained in the event of the death or wounding . . . or any other bodily injury suffered by a passenger, if the accident which caused the damage took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

In the Scottish appeal the pursuer, Judith Helen Abnett (known as Sykes) appealed against a decision of an Extra Division of the Inner House of the Court of Session (1996 SLT 529) upholding a decision of Lord Ordinary, Lord Marnoch, on 20 December 1993, dismissing the pursuer's claim for damages for breach of an implied term of her contract with BA that it would take reasonable care for her safety.

In the English appeal the plaintiffs, Kiran Sidhu, Harjinder Sidhu and Ravinder Sidhu, appealed against the decision of the Court of Appeal on 27 January 1995, affirming a decision of Judge Marcus Edwards at Brentford County Court, dismissing their claim for loss and damage caused by BA's negligence.

In the Scottish appeal: C.N. McEachran QC and Peter Macdonald (Pattinson & Brewer) for Abnett; D R A Emslie QC and M.L.B.G. Gilmore (Beaumont & Son) for BA. In the English appeal: Clive Nicholls QC and Tim Kerr (Raja & Ptrs) for the Sidhus; Robert Webb QC and Philip Shepherd (Beaumont & Sons) for BA.

Lord Hope said the Convention should be given a purposive construction. What it sought to achieve was a uniform international code, which could be applied by the courts of the contracting states without reference to the rules of their own domestic law. In the areas with which the Convention dealt, one of which was the liability of the carrier, the code was intended to be uniform and also to be exclusive of any resort to the rules of domestic law.

Any person was free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages was excluded or limited if he was in breach of contract. Exclusion and limitation clauses were a common feature of commercial contracts, and contracts of carriage were no exception.

It was against that background that the Convention was to be judged. It was not designed to provide remedies against the carrier to compensate all losses. 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.

Therefore any remedy not provided by the Convention was excluded. Domestic courts were not free to provide a remedy according to their own law, because that would undermine the Convention and distort the operation of the whole scheme.

Suggested Topics
Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£36000 - £45000 per annum: Recruitment Genius: This is an exciting opportunity...

Ashdown Group: HR Manager Shared Services - Uxbridge, - 1 Year contract

£50000 per annum: Ashdown Group: HR Manager Shared Services - Uxbridge, Stock...

Recruitment Genius: Graduate Human Resource Officer and Executive Assistant

Negotiable: Recruitment Genius: This is an exciting opportunity to join one of...

Ashdown Group: HR Assistant (Events business) - Central Manchester - £20K

£18000 - £20000 per annum + Benefits: Ashdown Group: HR Assistant (Events busi...

Day In a Page

General Election 2015: ‘We will not sit down with Nicola Sturgeon’, says Ed Balls

'We will not sit down with Nicola Sturgeon'

In an exclusive interview, Ed Balls says he won't negotiate his first Budget with SNP MPs - even if Labour need their votes to secure its passage
VE Day 70th anniversary: How ordinary Britons celebrated the end of war in Europe

How ordinary Britons celebrated VE Day

Our perception of VE Day usually involves crowds of giddy Britons casting off the shackles of war with gay abandon. The truth was more nuanced
They came in with William Caxton's printing press, but typefaces still matter in the digital age

Typefaces still matter in the digital age

A new typeface once took years to create, now thousands are available at the click of a drop-down menu. So why do most of us still rely on the old classics, asks Meg Carter?
Discovery of 'missing link' between the two main life-forms on Earth could explain evolution of animals, say scientists

'Missing link' between Earth's two life-forms found

New microbial species tells us something about our dark past, say scientists
The Pan Am Experience is a 'flight' back to the 1970s that never takes off - at least, not literally

Pan Am Experience: A 'flight' back to the 70s

Tim Walker checks in and checks out a four-hour journey with a difference
Humans aren't alone in indulging in politics - it's everywhere in the animal world

Humans aren't alone in indulging in politics

Voting, mutual back-scratching, coups and charismatic leaders - it's everywhere in the animal world
Crisp sales are in decline - but this tasty trivia might tempt back the turncoats

Crisp sales are in decline

As a nation we're filling up on popcorn and pitta chips and forsaking their potato-based predecessors
Ronald McDonald the muse? Why Banksy, Ron English and Keith Coventry are lovin' Maccy D's

Ronald McDonald the muse

A new wave of artists is taking inspiration from the fast food chain
13 best picnic blankets

13 best picnic blankets

Dine al fresco without the grass stains and damp bottoms with something from our pick of picnic rugs
General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'
Sarah Lucas is the perfect artist to represent Britain at the Venice Biennale

Flesh in Venice

Sarah Lucas has filled the British pavilion at the Venice Biennale with slinky cats and casts of her female friends' private parts. It makes you proud to be a woman, says Karen Wright
11 best anti-ageing day creams

11 best anti-ageing day creams

Slow down the ageing process with one of these high-performance, hardworking anti-agers