Braathens v The Borneo Company

• Jurisdiction: Singapore
• Judgment Date: 30 September 1959
• Date: 30 September 1959
• Court: Court of Appeal (Singapore)

Singapore, Court of Appeal.

(Rose C.J.; Buttrose and Chua JJ.)

Braathens South American & Far East Airtransport A.S.

and

The Borneo Company, Ltd.

Treaties Operation of Application by municipal court Term in contract contrary to provisions of treaty Article 23 of Warsaw Convention relating to International Carriage by Air, 1929 The law of Singapore.

The Facts.On March 31, 1951, the respondents delivered to the appellants a case of watches for carriage by air from Geneva to Singapore. The consignment never reached its destination.

The parties agreed that the carriage in question was an international carriage within the meaning of the Convention relating to International Carriage by Air which was signed in Warsaw on October 12, 1929, and that the provisions of the Convention applied to their contract.1 It was also agreed that the contract was made subject to the appellants' general conditions of carriage of goods, so long as such conditions were not inconsistent with the provisions of the Convention. Article 12 (1) (c) and (d) of the general conditions read:

• (c) In case of non-arrival or non-delivery, the person entitled to delivery must complain to the carrier not later than 120 days after the date of acceptance of the consignment by the carrier.

• (d) Failing complaint or claim in writing as provided in the foregoing sub-paragraphs, no action shall lie against the carrier, save in the case of fraud on its part.

The respondents conceded that no complaint or claim in writing was sent to the appellants within the prescribed time. They relied, however, on Article 23 of the Convention which reads:

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

In the Court of first instance judgment was given in favour of the respondents. The carriers appealed.

Held: that the appeal must be dismissed. Where a contract contained a provision falling within the terms of Article 23 of the Warsaw Convention relating to International Carriage by Air, that provision was null and void.

The Court said: I would observe that there is no provision in the Convention prescribing what notice, or the period of time within which any notice should be given in the event of loss or non-delivery of goods. Article 26 of the Convention lays...