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.