CLAIMS ARISING FROM AIR CARRIAGE
| Author | CHAN LENG SUN |
| Date | 01 December 2000 |
| Published date | 01 December 2000 |
This article discusses some developments in Singapore law relating to carriage of goods by air. It is not conceived as an introduction to the whole area of air law, so focus will be on note-worthy developments in recent years. Of particular interest is recent case law on the meaning of “carrier” under the Warsaw regime.
The legal regime in Singapore is based on three international conventions: the Warsaw Convention (“the Warsaw Convention”), the Warsaw Convention as amended by the Hague Protocol (“the Warsaw (Hague) Convention”) and the Warsaw Convention as amended by the Hague and the Montreal Protocol No. 4 (“the Warsaw (Hague) (Montreal) Convention”).
The Carriage by Air Act (Cap. 32A) (“the Act”) gives the force of law to these three versions of the Warsaw regime. The Warsaw Convention is set out in the 2nd Schedule to the Act. The Warsaw (Hague) Convention is set out in the 1st Schedule. The Warsaw (Hague) (Montreal) Convention is set out in the 3rd Schedule.
Singapore has signed the Final Act to the completely new Montreal Convention 1999, which is the latest and most comprehensive overhaul of the whole air carriage regime. This Convention should not be confused with the Montreal Protocols which opened for signature in 1975 and one of which was made part of the Act in 1998. No domestic legislation has followed yet, so the discussion in this article will be based on the current legislation as developed through case law. An endnote will address a few salient points of the 1999 Montreal Convention.
Which Schedule applies to a carriage depends on which instrument (i.e. whether the original Convention, or one of the amended versions) the other country, which may be the place of departure or destination, has contracted to.1 A contracting State is referred to as a “High Contracting Party” in the conventions. The High Contracting Parties to the respective instruments are certified from time to time in the Gazette.2
To be more precise, Article 1 of all three Schedules provides that the Convention (or one of its amended versions) applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. International carriage means any carriage for which, by agreement, the place of departure and the place of destination are situated either (1) within the territories of two High Contracting Parties, or (2) within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. The definition lays stress on the agreed places of departure, destination or stopping place. An unscheduled landing does not come within the definition.
The Warsaw regime is a package of trade-offs. There is a presumption of fault if loss or damage occurs during the carriage by air, but the carrier is entitled to rely on the limits of liability available under the Convention unless the claimant breaks the limit by proving that the damage was “done with intent to cause damage or recklessly, and with knowledge that damage would probably result.”3 There are three classes of “users” identified under the regime: passengers, baggage and cargo. This article will focus on the carriage of cargo.4
“Carriage by air” is defined in Article 18 (2) of the first two Schedules, and Article 18(4) of the 3rd Schedule, as follows:-
“The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.”
The definition is fine-tuned as follows:-
“The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the
contrary, to have been the result of an event which took place during the carriage by air.”5
The Court of Appeal had occasion to consider Article 18 in Powermatic-Apcom Systems Pte Ltd v Concord Express (Singapore) Pte Ltd6. In that case, the plaintiff shippers sued the defendant freight forwarders for misdelivery of a cargo of computer parts which the defendants were engaged to deliver from Singapore to Mumbai, India to the buyer upon presentation of certain documents. The defendants’ agents in Mumbai however delivered the goods to the buyer without first obtaining the documents, and the plaintiffs were unable to obtain payment for the goods. The defendants’ counsel submitted that the loss was presumed to have occurred during the carriage by air under Article 18(3) (of the Warsaw (Hague) Convention in that case).
The Court of Appeal did not agree. The presumption under Article 18(3) could be rebutted by “proof to the contrary”. It was not disputed that the alleged loss of the goods was caused by their wrongful delivery to the buyer, and not as the result of an event which took place while the goods were on board the aircraft or in the aerodrome. Accordingly, the presumption in Article 18(3) was rebutted.
The Court of Appeal’s interpretation is consistent with Article 31 of the Convention7 which provides that, where there is a combined carriage, the provisions of the Convention apply only to the carriage by air. Therefore, it cannot be an irrebuttable presumption that where there is damage during a combined carriage, the damage must have occurred during the air carriage so that the Convention applies. That presumption is merely one of fact, not of law. If there is proof that the damage in fact occurred outside the period of air carriage, the provisions of the Convention will not apply to govern parties’ rights and obligations relating to the damage.
The Warsaw regime is exclusive in the sense that, once the facts of a case bring the claim within the regime, the conditions and limits of liability of the Convention apply. The claimant cannot avoid the Convention by bringing a cause of action under common law. This can be gathered from
the wording of Article 24 of all three Schedules.8 The Court of Appeal in Powermatic-Apcom Systems Pte Ltd vigorously upheld the exclusivity of the regime:-
“In view of the special regime introduced by the Amended Convention, it is not sufficient for the limits of liability to be pleaded as a defence by a carrier. Instead, where the alleged loss or damage arises in circumstances falling within the scope of articles 17, 18 and 19 — which prescribe the liability of the carrier in respect of death or personal injury, damage to registered baggage and cargo, and delay respectively — these articles must be pleaded by the claimant in the statement of claim. At the same time, he is precluded from pleading his claim on any other basis of liability, such as at common law in negligence, breach of contract, bailment and conversion. This is because the articles of the Amended Convention form the sole and exclusive foundation of the carrier’s liability, and hence provide the exclusive cause of action against him.”9
In a nutshell, there is no cause of action outside the Convention, whether in tort or contract, in respect of a claim which is covered by the Convention.
On the other hand, in Nasaka Industries (S) Pte Ltd v Aspac Aircargo Services Pte Ltd, Judith Prakash J held that the Warsaw Convention does not prevent a defendant air carrier from resorting to equitable defences arising from the conduct of the claimant, e.g. estoppel, waiver or acquiescence. The Warsaw Convention therefore does not oust principles of equity, which are a “fundamental part of the law of Singapore.”10
In Western Digital Corporation and Ors. v British Airways plc11, the English Court of Appeal held that the principals of the named consignee or consignor had rights of suit under the Warsaw Convention, notwithstanding the wording of the Convention which seems to limit the rights of suit to the named consignee or consignor.
The term “carrier” is not defined in the Act or any of the Schedules, although there are provisions addressing the rights of suit against and the defences available to the carrier or its agents.
There is a two-year time bar in Article 29 of the Conventions, and section 8(1) of the Act applies the benefit of this time bar to actions against a carrier’s employee or agent if he was acting within the scope of his employment.
Article 30(1) of all three Schedules clarifies that where there is a carriage performed by various successive carriers, each carrier is subject to the rules in the Convention and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage under his supervision. Article 30(3) gives the right of action against the first carrier to the consignor, and the right of action against the last carrier to the consignee. Furthermore, either consignee or consignor may sue the carrier who performed the carriage where the loss or damage occurred. These carriers are jointly and severally liable to the consignor or consignee.
The Singapore Court of Appeal has held that “carrier” does not mean just any party who undertakes the carriage of goods as a principal...
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