JOSHUA ONG v. MALAYSIAN AIRLINE SYSTEM BERHAD

cacv 283/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 283 of 2007

(on appeal from DCPI NO. 1542 of 2006)

------------------------------

------------------------------

------------------------------

J U D G M E N T

------------------------------

Hon Rogers VP:

1.  This was an appeal from a decision of HH Judge Stanley Chan given on 5 July 2007.  The matter before the judge was an application under Order 12 rule 8 of the Rules of the District Court wherein the defendant sought orders first for a declaration that “in the circumstances of the case the Courts of Hong Kong have no jurisdiction over the defendant in respect of the subject matter of the claim in this action” and secondly that the action should be dismissed as the plaintiff’s claim was time-barred by virtue of Article 29 of the Amended Warsaw Convention (“the Convention”) as set out in Schedule 1 of the Carriage By Air Ordinance Cap. 500 (“the Ordinance”).  The judge made the declarations sought and dismissed the plaintiff’s action under Order 33 rule 7.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

2.  The plaintiff is a minor and sues by his mother as his next friend.  On 14 August 2004 the plaintiff, then aged 13, travelled from Kuala Lumpur to Hong Kong on one of the defendant’s aircraft.  He was travelling on a return ticket to Kuala Lumpur purchased by his uncle.  Since he was alone he travelled as an “Unaccompanied Minor”.  The following facts are taken from the statement of claim and assumed as correct for the purposes of this application.  When the plaintiff arrived in Hong Kong he was “greeted and collected by the defendant and/or” by a Ms Evon, who was described as being an agent of the defendant.  They walked together towards the Customs and Immigration areas.  Ms Evon noted that the plaintiff looked pale and was told that the plaintiff had a headache.  Ms Evon told the plaintiff to lineup at the immigration queue and she then left him and walked towards the immigration channel reserved for cabin crew.  When the plaintiff was about to walk up to the immigration counter he fainted and fell down.  He hit his head on the marble floor and sustained severe head injuries.  He was admitted to the Princess Margaret Hospital.  He had a fractured skull and right frontal lobe contusion and subdural haematoma.  The operation to remove the intracerebral haematoma and subdural haematoma was only carried out some 12 days later.  The plaintiff still suffers from attentional problems, forgetfulness, reduced deficiency in learning and emotional problems.  Apparently there is a risk of epilepsy which is estimated 20%, however that is calculated.

3.  The plaintiff’s case is put upon 2 bases.  In paragraph 2 of the amended statement of claim it is pleaded that the plaintiff was the holder of valid ticket for the flight and that the defendant was fully aware that the plaintiff was a young passenger travelling alone.  That paragraph then continues:

“c)        It is an expressed, alternatively, an implied terms of the issuing of the air ticket to the Plaintiff, that the Defendant shall:

-   take full charge of the plaintiff the moment he checks in;

-   escort the Plaintiff throughout the departure and arrival formalities, including immigration, security and boarding procedures;

-   arrange a flight crew or staff to accompany the Plaintiff during his travel from the originating port they were handed to an flight crew or staff, when until the destination point, where the plaintiff was handed to the receiving party; and

-   arrange a flight crew or staff to accompany the plaintiff when going through the customs and immigration desk and the baggage reclaim section.”

4.  Allowing for lapses in the precision of the language, it is clear that that is a pleading that would lead to a claim under contract.  Indeed it is clear that the claim is put on the basis of contract and negligence.  In paragraph 4 it is stated:

“4.  The aforesaid accident was caused by the breach of expressed and/or implied terms of contract and/or common duty of care and/or the negligence on the part of the Defendant, its servants and/or agents.”

5.  There then follows particulars of negligence which seemingly are applicable both to the claim in contract and the claim in negligence.  The issue before the judge was whether the claim as pleaded was time-barred under the provisions of Article 29 of the Convention.  That Article provides:

“Article 29

The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

6.  The point arises because the writ in this action was issued on 23 August 2006 which was more than two years after the date on which the plaintiff suffered his injuries.  That, however, was not the only issue in the case that the judge had to decide.

7.  The first issue was one of jurisdiction.  Article 28(1) of the Convention provides that

“Article 28

(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.”

8.  The judge considered that when the plaintiff suffered his injury he had still been in the course of disembarkation but that the Hong Kong courts did not have jurisdiction to hear the plaintiff’s claim because the plaintiff was travelling under a return ticket to Kuala Lumpur.  Whilst the return portion of the ticket was never used because, eventually, the plaintiff travelled directly to Australia, the judge held that the fact that it was abandoned because of the accident on 14 August 2004 could not be taken to transform Hong Kong from being a stopping place in the contract of carriage to the place of destination.

9.  Although it was strictly unnecessary, the judge, nevertheless, went on to consider the question as to whether the action would be time-barred by reason of the provisions of Article 29.  Given the fact that the journey was never completed the judge had difficulty in applying the provisions of Article 29.  He came to the tentative conclusion, however, that the plaintiff might well be within the prescribed 2-year limit on the basis that although the journey had never been completed it could be said that the carriage had not stopped more than 2 years prior to the issue of the writ.

This appeal

10.  On this appeal Mr Lai, who appeared on behalf of the plaintiff, considered that the issue on the appeal turned on what he described as “one very simple point, namely whether the Warsaw Convention applies to the facts of this accident.”  In short, his argument was that the plaintiff had completed the process of disembarking from the aircraft and hence the claim did not fall within the terms of Article 17 of the Convention.  Article 17 provides:

“CHAPTER III

LIABILITY OF THE CARRIER

Article 17

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

11.  Counsel relied on a number of decisions of courts in the United States to support his argument that once the plaintiff had reached the terminal building and was approaching the immigration counter he had completed the process of disembarking.  On that basis it was said that the contract of carriage was complete and therefore the Convention ceased to apply by the time of the accident.  In those circumstances, where the action was brought in respect of a purely local incident, there was no reason why the Hong Kong courts should not have jurisdiction.

12.  Mr Stock, who appeared on behalf of the respondent, took a number of points.  The first was a point that was apparently argued in the court below but not dealt with by the judge.  It was that the Convention did apply in the present case even if the claim did not fall within Article 17.  The short reason is that it was a claim which arose out of a contract of international carriage by air.  The second point was that even if the applicability of the Convention depended upon whether the claim fell within Article 17 that was satisfied because the judge was correct in reaching the conclusion that the plaintiff was still in the process of disembarking until the time that the plaintiff was to be handed over to the appointed guardian at the airport.

13.  Whilst seeking to uphold the judge on the question of jurisdiction, it was argued that the judge should have held that the claim was time-barred and that time began to run against the plaintiff no later than 21 August 2004.

14.  I consider that the starting point of the consideration of the issues in this case must be the basis of the claim.  Paragraph 3(c), set out above, makes it quite clear that it is the plaintiff’s case that the claim is based on events which are within the contractual ambit, the contract being concluded on the issue of the air ticket.  Leaving aside any question as to who was in the circumstances of the present case the contracting party, the pleading is clear that there was one single contract which therefore included not merely the conveyance in the aircraft but also the escorting and supervision of the plaintiff in particular at the airport in Hong Kong.  To this extent, therefore, the plaintiff’s contract with the airline is markedly different from any contract which any adult might make in normal circumstances.

15.  The first question which arises in this case, therefore, is whether Article 17 lays down the limits of the applicability of the Convention or whether it lays down the limits of the liability of the carrier in respect of claims, other than claims made by a passenger against the carrier for damage to his registered baggage which must be dealt with under Article 18 and claims for delay which must be dealt with under Article 19.  In this respect I derive considerable assistance from the speech of Lord Hope of Craighead in the case of Sidhu v British Airways PLC [1997] AC 430.  In that case the House of Lords was dealing with 2 appeals one from the Court of Appeal in England and the other from the Court of Session in Scotland.

16.  Both actions concerned claims by passengers who had been on board an aircraft which had landed in Kuwait shortly after the invasion by Iraq had commenced in 1990.  The pursuer in the second action claimed psychological injury due to stress resulting from her captivity which took place mainly in Iraq.  The injuries in respect of which the plaintiffs claimed included physical and psychological injuries.  The pursuer’s claim was in breach of contract whilst the plaintiffs’ claim was in negligence.

17.  As was recorded in different parts of his speech, Lord Hope stated clearly, for example at page 437H, that it was common ground that neither the pursuer nor the plaintiffs had any claim against the respondents under Article 17 of the Convention.  Lord Hope did not examine that contention to any great extent although at page 440H-441D he briefly referred to the reasons.  In the first place it was said that there had been no “accident” causing damage which had taken place on board the aircraft as opposed to the result of the passengers having been detained in Iraq.  In the second place it was said that the injuries sustained by the pursuer, namely stress resulting from her captivity and the pain of separation from her family the absence from work and loss of income due to psychological consequences of the captivity, did not fall within the scope of “bodily injury” for the purposes of Article 17.

18.  It was in those circumstances that it became relevant to consider the provisions of Article 24 which provide:

“Article 24

(1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

19.  Apart from a detailed consideration of the Convention itself, Lord Hope considered the statutory framework which provided for the application of the Convention, but also decisions by courts in the United Kingdom and in other jurisdictions as well as the travaux prėparatoires.  In the course of that he said at page 447D-H:

“The reference in the opening words of article 24(2) to “the cases covered by article 17” does, of course, invite the question whether article 17 was intended to cover only those cases for which the carrier is liable in damages under that article.  The answer to that question may indeed be said to lie at the heart of this case.  In my opinion the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article.  In its context the purpose seems to me to be to prescribe the circumstances-that is to say, the only circumstances-in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air.

The phrase “the cases covered by article 17” extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19.  The words “however founded” which appear in article 24(1) and are applied to passenger’s claims by article 24(2) support this approach.  The intention seems to be to provide a secure regime, within which the restriction on the carrier’s freedom of contract is to operate.  Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply.  To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier.  Thus the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action.  The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.”

20.  In my view Lord Hope’s analysis, quite apart from being very profound and perceptive, must be correct.  Article 17 taken together with the rest of the Convention is clearly directed to liability.  Liability is imposed on the carrier when a) the passenger has suffered a bodily injury and b) the bodily injury has been caused by an ‘accident’ and c) the accident took place on board the aircraft or in the process of embarkation or disembarkation.  What is perhaps easily overlooked is that there is no requirement that the carrier should be at fault or blameworthy.  There is no reference to any standard of care on the part of the carrier.  The passenger can therefore rely on the fact that he has some kind of insurance should the 3 conditions for liability exist.  Negligence is irrelevant save in so far as Article 20 provides a defence:

“Article 20

The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.”

21.  Whereas the pursuer in the Sidhu case did not claim to have sustained any bodily injury that would bring the matter within the terms of Article 17, nevertheless, the Convention applied because there was a claim against the carrier arising out of a contract of carriage by air.  So in the present case, where there is a claim based on the contract of carriage by air, the fact that liability does not arise under Article 17 does not prevent the application of the Convention.

22.  Mr Stock, very properly drew this Court’s attention to the decision of the United States Supreme Court in the case of El Al Israel Airlines, Ltd v Tsui Yuan Tseng 142 L Ed 2d 576 wherein the majority of the court followed the decision in the Sidhu case to the extent that a claim would still fall within the Convention even if it was in respect of psychological damage without physical injury and thus conceded not to constitute bodily injury which was necessary to bring the matter within a claim to liability under Article 17.  In doing so, however, Ginsberg J, delivering the majority decision, said at page 592:

“The Second Circuit feared that if Article 17 were read to exclude relief outside the Convention for Tseng, then a passenger injured by a malfunctioning escalator in the airline’s terminal would have no recourse against the airline, even if the airline recklessly disregarded its duty to keep the escalator in proper repair.  See 122F3d, at 107.  As the United States pointed out in its amicus curiae submission, however, the Convention addresses and concerns, only and exclusively, the airline’s liability for passenger injuries occurring “on board the aircraft or in the course of any of the operations of embarking or disembarking.”  Article 17, 49 Stat. 3018; see Brief for United States as Amicus Curiae 16.  “[T]he Convention’s pre-emptive effect on local law extends no further than the Convention’s own substantive scope.”  Brief for United States as Amicus Curiae 16.  A carrier, therefore, “is indisputably subject to liability under local law for injuries arising outside of that scope: e.g., for passenger injuries occurring before ‘any of the operations of embarking or disembarking.’ ” Ibid. (quoting Article 17).”

23.  It might be thought that it would be incongruous that the Supreme Court should accept the reasoning in the Sidhu case, which was predicated on the distinction between the application of the Convention and the provisions of liability under the Convention.

24.  This statement was not part of the ratio of the Supreme Court’s decision, but it was a similar decision to that reached in a number of cases both in the United States and in England for example Dick v American Airlines Inc. and Another US District Court of Massachusetts, 12 March 2007, Adatia v Air Canada [1992] P.I.Q.R. 238.  In the first case, the judge said that:

“The applicability of the Convention depended on whether the injury occurred ‘on board the aircraft or in the course of any of the operations of embarking or disembarking.’ ”

25.  In the normal course of events the carrier’s contractual obligation for the carriage of passengers would cease once the passengers had left the aircraft.  The carrier would have no more functions to perform as regards the transport of the passengers because the passengers would be inside the air terminal.  Apart from making sure the baggage was discharged from the aircraft, all other functions would be undertaken by the airport authority.  Hence in normal cases the contractual obligations of the carrier and the scope of liability under Article 17 would be coterminous.  However, as already indicated, this case is not the normal case.  The pleading is that the airline did have other contractual obligations to perform, namely it had the contractual obligation to take care of and supervise the plaintiff.  Thus, unlike other cases, the claim in this case is founded upon the contractual obligations of the contract of carriage extending beyond disembarkation.

26.  It would seem that the courts have been more inclined to give a wider interpretation to embarking and more inclined to treat as a factual matter the process of approaching the boarding area as embarkation but in relation to disembarkation the courts have been disposed to treat the process as complete once the passenger has reached a safe area inside the terminal.

27.      Mr Lai sought to rely on the what has been referred to as a three fold test namely the location where the accident took place, the nature of the activity and the airline’s control.  Many of the judgments to which this court was referred took those matters as guiding factors as to whether the particular passenger was in the course of embarkation or disembarkation.  Of those factors clearly that of control appears to have been considered the most important.

28.  Naturally, once a passenger has checked in and has reached a point in an airport from whence he will be directed on to the aeroplane it would be natural to think in terms of the process of embarkation having commenced.  In contrast, when a passenger has left the aeroplane and is inside the terminal he would not be directed or in any way controlled by the carrier but would be subject to such directions as would apply to all passengers using that airport.

29.  In some cases it has been held the carriers had undertaken contractual obligations that required performance of functions by the carrier after the passenger had left the aircraft and was inside the terminal building.  One such case was that of Burke v Aer Lingus PLC [1997] 1 ILRM 148.  That case involved the provision of a shuttle bus across the airport tarmac.  The judge held that the passenger was still in the process of disembarkation; his reasoning was consistent with the carrier carrying out its contractual duty of transporting the passenger to the destination.

30.  In this case, I would agree with the submissions by Mr Lai that the plaintiff had indeed disembarked from the aircraft.  While disagreeing with the judge below on this aspect I note that paragraph 13 of his judgment stresses the importance of the carrier’s control of the plaintiff because he was an Unaccompanied Minor.  As already explained, that is a matter of the pleaded contractual obligation of the airline.  It is not a matter which, in my view, extends the meaning of disembarkation but it is a matter which extends the contractual obligation of the carrier.

31.  The result is, therefore, that whilst the Convention is applicable to the pleaded cause of action, the pleaded accident was one which occurred outside the limits of liability laid down in Article 17.  In those circumstances, the plaintiff’s action on the pleading must fail.

32.  Whilst it is not necessary to consider the other matters I would indicate that in my view the judge came to the correct conclusion in respect of Article 28 namely that Kuala Lumpur was both the place of departure and destination of the contractual carriage for the purposes of the Convention.  In those circumstances Hong Kong courts do not have jurisdiction to hear the plaintiff’s claim.

33.  The judge was clearly apprehensive about the argument raised under Article 29 because it turned on whether it could be said that the carriage had stopped and when it was that the carriage stopped.  I would be inclined to the view that the carriage stopped at the time when the plaintiff had taken the decision not to use the return ticket.  That probably was not until very much later than the time of the accident.  In those circumstances I would not interfere with the conclusion reached by the judge.

34.  I would therefore dismiss this appeal and make an order nisi of costs in favour of the defendant.  Mr Lai submitted that there may be other ways in which a claim could be put.  Although no draft was shown to this court I consider that it would be appropriate that the order should be drafted in terms that would permit the plaintiff to apply to the District Court for leave to be able to file an amended claim within 28 days of this judgment.  In so saying I do not give any indication as to whether any amendment or alternative way of making a claim would be viable.  That matter would have to be considered by the judge before whom any such application might be made.  It is also noted that this court was informed that the plaintiff has issued a protective writ based on a quite separate cause of action of misrepresentation, in respect of which the plaintiff’s counsel informed the court there were no time bar difficulties.

Hon Suffiad J:

35.  I agree with the judgment given by the Vice President the draft of which I had the advantage of reading.

Hon Wright J:

36.  This is an appeal from a decision of His Honour Judge Stanley Chan which concerns the issue of whether the Amended Warsaw Convention as set out in Schedule 1 of the Carriage By Air Ordinance, Cap. 500, applies to the plaintiff's claim.

37.  Mr Lai, who appeared for the plaintiff both below and in this appeal, described the plaintiff’s argument as turning on the “simple point of whether the Convention applies to the facts of this accident”.  It would better be characterised as requiring determination of the question: “in circumstances where a contract between an airline and a passenger includes the provision of services beyond the mere air journey itself, do the limitations on actions for recovery of damages created by the Warsaw Convention, extend to those additional services?”

38.  The plaintiff contends that international carriage by air is prescribed by the provisions of Article 17, that the incident occurred outside such carriage.  The defendant contends that it extends to the entire duration of a contract of carriage but continues, in the alternative, that on the facts of this matter Article 17 was of application.

The facts

39.  The events which gave rise to the claim are not disputed by the defendant for the purposes of this appeal.  They arose out of a mishap which occurred in Hong Kong International Airport on 14 August 2004 and may be summarised shortly. The plaintiff, at that stage 13 years old, was the holder of a round trip air ticket issued by the defendant entitling him to fly from Kuala Lumpur, Malaysia to Hong Kong and back again.  He arrived on flight MH 72Q at approximately 1 p.m. that day.  His ticket indicates that he was due to return to Kuala Lumpur on 21 August 2004.  He travelled alone, as an "unaccompanied minor".  He was met by a “Ms Evon”, described as an agent of the defendant, who accompanied him to the Customs and Immigration area: according to the plaintiff the meeting took place at the landing gate.  The defendant's agent noticed that the plaintiff looked pale and, upon enquiry, he said that he had a headache.  She told the plaintiff to line up for immigration formalities.  She left him in the queue whilst she went through a designated immigration channel.  When the plaintiff went to walk forward to the immigration counter, he fell, hitting his head on the marble flooring and sustaining a head injury. 

40.  He was admitted that day to Princess Margaret Hospital where he remained until 23 August 2004.  He was readmitted on 25 August 2004 and then transferred to the Baptist Hospital the following day where surgery was performed.  He was discharged on 2 September 2004.  He returned to his home in Australia in October 2004, without returning to Kuala Lumpur.

The plaintiff’s claim

41.  The plaintiff's statement of claim, paragraph 2, reads, without correction:

c)   It is an expressed, alternatively, an implied terms of the issuing of the air ticket to the plaintiff, that the defendant shall:

-      take full charge of the plaintiff the moment he checks in;

-      escort the plaintiff throughout the departure and arrival formalities, including immigration, security and boarding procedures;

-      arrange a flight crew or staff to accompany the plaintiff during his travel from the originating port they were handed to an flight crew or staff, when until the destination point, where the plaintiff was handed to the receiving party; and

-      arrange a flight crew or staff to accompany the plaintiff when going through the customs and immigration desk and the baggage reclaim section.

42.  Paragraph 4 then asserts:

The aforesaid accident was caused by the breach of expressed and/or implied terms of contract and/or common duty of care and/or the negligence on the part of the Defendant, its servants and/or agents.

after which are set out of six particulars which are said to describe equally the defendant’s breach of contract and its negligence.

The proceedings

43.  The plaintiff instituted proceedings against the defendant in the District Court for damages arising from the incident.  The defendant took out a summons pursuant to Order 12, Rule 8 of the Rules of the District Court, in which it sought a declaration that the Courts of Hong Kong have no jurisdiction over it in respect of the subject matter of the claim in this action and an order that the plaintiff's claim be dismissed as it is time barred by virtue of Article 29 of the Convention.  The judge made the declaration sought and dismissed the plaintiff's claim on the basis that the Hong Kong courts lacked jurisdiction. 

44.  The plaintiff appeals both the declaration and the dismissal of the claim.  In regard to the latter aspect the plaintiff additionally contends that there existed an, as yet unpleaded, alternative cause of action, namely misrepresentation by an agent of the defendant which occurred whilst the plaintiff was hospitalised which could not have been affected by the terms of the Convention, and that consequently the judge, if he found for the defendant, should not have dismissed the action but should have afforded the plaintiff an opportunity to amend his pleadings by including that alternative cause of action.

45.  Under a heading "Legal issues not in dispute" the judge recorded :

Counsel for the plaintiff accepts that:-

(1)   The plaintiff's flight was covered by the Amended Warsaw Convention... which is given the force of law by the Carriage by Air Ordinance, Cap 500...

(2)   The Convention while it applies, provides the exclusive code for relief displacing ordinary common law actions.

(3)   The Convention is an international treaty and should be considered as a whole, and the purposive interpretation should be adopted.

(4)   The Convention is to provide a uniform and exclusive international code relating to the liabilities of air carriers in respect of claims arising out or in the course of international carriage by air, to be applied in the courts of all signatories to the Convention without reference to their domestic law.

(5)   The Convention also sets out the limits of liabilities and the conditions under which claims to establish liability are to be met.  A balance should be struck in the interests of certainty and uniformity.

46.  That summary by the judge substantially encapsulates the overriding principles which are to be taken into account when considering a claim arising out of an incident in the course of international carriage by air in circumstances which give rise to a claim.

47.  As to construction of the provisions of the Convention I turn to the summary by Lord Scott of Foscote, in In re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 starting at [11]:

"[11] Counsel for the parties were in broad agreement as to the principles of interpretation of article 17 that should be applied. The important principles for present purposes are that:

(1) the starting point is to consider the natural meaning of the language of article 17, with the French text prevailing in case of any inconsistency with the English text ;

(2) the Convention should be considered as a whole and given a purposive interpretation;

(3) the language of the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation; and

(4) assistance can and should be sought from relevant decisions of the courts of other Convention countries, but the weight to be given to them will depend upon the standing of the court concerned and the quality of the analysis. I would add to these that the balance struck by the Convention between the interests of passengers and the interest of airlines ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of that case. The point was well put by Scalia J in his dissenting opinion in Husain v Olympic Airways (2004) 124 S Ct 1221, 1234 (an opinion with which O'Connor J concurred):

"A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an 'accident'. Whatever that term means, it certainly does not equate to 'outrageous conduct that causes grievous injury'. It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue … Unless there has been an accident, there is no liability, whether the claim is trivial … or cries out for redress."

[12] I think at this point a word of caution about the process of interpretation is in order. It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to article 17 liability, or of any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention. So a judge faced with deciding whether particular facts do or do not constitute an article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an article 17 accident. But a judicial formulation of the characteristics of an article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question."

The relevant provisions of the Convention

48.  It is convenient to set out those Articles of the Convention which are of relevance in this appeal.

49.  Article 1

(1) This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward…

(2) For the purposes of this Convention, the expression "international carriage" means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or 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. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. [Emphasis added]

50.  Article 17

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

51.  It is unnecessary to set out Article 22 in full: its effect is to limit the liability of a carrier to a prescribed amount irrespective of the potential extent of the claim.

52.  Article 24

(1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.

53.  Article 28

(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.

54.  Article 29

(1) The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

The consequences of the Convention

55.  Article 1 applies the Convention to all international carriage of persons performed by aircraft: it then defines what is meant by “international”.

56.  Article 17 imposes liability on a carrier in defined circumstances: (a) there must be bodily injury (not psychological injury: see, for example, Eastern Airlines, Inc. v. Floyd (1991) 499 U.S. 530, 534, 113 L. Ed. 2d 569, 111 S. Ct. 1489, followed in El Al Israel Airlines, Ltd. v. Tseng (1999) 525 U.S. 155, 166 n.9, 142 L. Ed. 2d 576, 119 S. Ct. 662; Turturro v Continental Airlines and Others (2001)128 F. Supp. 2d 170: the same approach was adopted by the House of Lords, citing Floyd with approval, in King v Bristow Helicopters Ltd. (Scotland); In Re M [2002] UKHL 7 (28th February, 2002)) (b) as a result of an accident (see, e.g., Air France v. Saks, 470 U.S. 392, 404, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985)), which occurred (c) on board the aircraft, or in the course of any of the operations of (d) embarking or (e) disembarking. 

57.  A concise explanation of the rationale for this approach was expressed by Ginsburg, J., in delivering the majority decision of the Second Circuit of the Supreme Court of the United States in El Al v Tseng (supra) in these terms:

A complementary purpose of the Convention is to accommodate or balance the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability. Before the Warsaw accord, injured passengers could file suits for damages, subject only to the limitations of the forum's laws, including the forum's choice of law regime. This exposure inhibited the growth of the then-fledgling international airline industry. … Many international air carriers at that time endeavored to require passengers, as a condition of air travel, to relieve or reduce the carrier's liability in case of injury. …The Convention drafters designed Articles 17, 22, and 24 of the Convention as a compromise between the interests of air carriers and their customers worldwide. In Article 17 of the Convention, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages they may recover, and are restricted in the claims they may pursue by the conditions and limits set out in the Convention.

58.  The cardinal purpose of the Convention is to achieve uniformity of rules governing claims that arise out of international air transportation.  In order to achieve this goal, the Convention fashioned a comprehensive liability scheme designed to be the exclusive remedy for injuries suffered during the course of international travel. This system protects air carriers against catastrophic liability by establishing monetary caps on awards and restricting the types of claims that may be brought against carriers, while accommodating the interests of injured passengers by creating a presumption of liability against the carrier. Article 17 provides for strict liability of an air carrier for personal injuries sustained by a passenger in international travel. According to its terms, Article 17 applies "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." (Girard v American Airlines (supra), Wallace v. Korean Air, 214 F.3d 293, 296 (2d Cir. 2000, Sidhu v British Airways [1997] AC 430)

59.  Article 24(1) creates the regime by which a plaintiff’s claim, arising in circumstances covered by the Convention, is enforceable only under the Convention, depriving a plaintiff of the right to pursue a claim under common law or another regime, excluding a claim save in the defined categories created by Articles 17, 18 and 19. Uniformity requires that passengers be denied access to the profusion of remedies that may exist under the laws of a particular country, so that they must bring their claims under the terms of the Convention or not at all. (King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002))

60.  Article 28 vests jurisdiction in respect of “[a]n action for damages” in four specified courts: it must be that that phrase encompasses only claims arising under the Convention.  The judge found that Hong Kong courts do not have jurisdiction: he was correct in that finding, in my view, only if that the plaintiff’s claim is one covered by the Convention.  Conversely if the plaintiff’s claim is unaffected by the Convention then Hong Kong courts would have jurisdiction in that the cause of action arose here.  The same consideration applies to the two-year limitation period created by Article 29: only if the Convention applies to the plaintiff's claim is the two-year time limit of effect.

Carriage by air vs. ancillary services

61.  What the Convention does not do is to provide any definition of when the international carriage by air commences or terminates.  In the course of his speech in Sidhu v British Airways Lord Hope of Craighead noted:

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.

62.  When reviewing some of the background to the Convention Trager J. in Alleyn v Port Authority of New York to and Others 58 F. Supp 2d 15; 1999 U.S. Dist. LEXIS 10761noted:

The drafters of Article 17 specifically rejected proposed language that would have held carriers responsible for all injuries suffered by passengers "from the time when (they) enter the airport of departure until the time when they exit from the airport of arrival"... The delegates also rejected a proposal which would have strictly limited carrier liability to only accidents occurring while passengers are actually on board a plane... Instead, the drafters chose a middle, but more ambiguous, position.

63.  In the instant matter the judge reviewed a number of decisions in the United States, where there is a wealth of jurisprudence in this field, from which he appears to have accepted a tripartite approach in determining the question of whether an accident occurred in the course of any of the operations of disembarking: that approach encompasses consideration of the passenger’s activity at the time of the injury, his or her whereabouts when injured and the extent to which the carrier was exercising control. (See Day v Trans World Airlines, Inc 528 F.2d 31, 35 (2d Cir. 1975) applied in, e.g., Alleyn(supra))

64.  That is an appealing approach.  With respect, the judge appears to have confused the concept of control being exercised by an airline in circumstances in which the issue was whether or not disembarkation had been completed (for the purposes of determining the application of Article 17) with the concept of the supervision and care of the plaintiff until he was handed over to the designated person in Hong Kong.

65.  After reviewing a number of decisions as to when disembarkation had been held to have been completed the judge said the following at paragraph 13 of his judgement:

In my view, by applying the tripartite test based on activity, location and control, the cases cited above can be distinguished from the present case.  Here the plaintiff was the UM of the airline.  Although there was no evidence presented as to the exact scope and nature of being a UM of the airline, it is not difficult to envisage that an UM should not be taken as an ordinary passenger as such and he would not be allowed to go anywhere he wanted to even though he had left the aeroplane and was still in the airport.  The UM has to be accompanied by the airline staff to clear the Immigration and Customs checkpoints.  The UM was under the control of the airline or its agent.  The UM has to be literally delivered to the appointed guardian at the airport before the duty of escorting a UM by the airline could be fully discharged.  In the circumstances, I find that the plaintiff was still in the process of disembarking up till the plaintiff was actually handed over to the appointed guardian at the airport.  In the circumstances, article 17 is applicable in this case.

66.  The judge is correct when he says that the plaintiff had to be handed to a nominated person "before the duty of escorting [the plaintiff] by the airline could be fully discharged".  It is, of course, the plaintiff's case (and that is the reason why the claim would have been pleaded as it has) that the defendant will be responsible for the care and safe conduct of the plaintiff from the time he was handed over to it in Kuala Lumpur until he was handed over to the nominated person after arrival in Hong Kong, including, within that period, the international carriage by air.

67.  In this instance the defendant undertook two distinct obligations: first, the obligation that it undertakes in respect of any person to whom it issues a ticket, namely, to carry the plaintiff from the point of departure to the destination, the element of international carriage by air; second, to provide further services to the plaintiff in the form of special arrangements for his safe custody not only during the period of international carriage by air but also during the times preceding and subsequent to that carriage.

68.  The judge appears to have considered the entire period of the contract between the plaintiff and defendant, including the different obligations undertaken by the defendant in terms of the contract, as constituting international carriage by air.

69.  In my judgment it does not follow as an inevitable consequence of the defendant’s assumption of the additional obligations that the entire period encompassed by the additional pre-and post-flight obligations as well as by the true transportation becomes part of “international carriage by air” and thus subject to the provisions of the Convention.

70.  In many instance, for example where an adult simply purchases a ticket to fly from one place to another, it may well be that the provisions of the Warsaw Convention will be coextensive with the period of the contract.  However, in circumstances such as the present, where the defendant has undertaken obligations additional to the actual international carriage by air, I can see no compelling reason why the provisions of the Convention should be extended beyond that actual carriage.

71.  Article 17 of the Convention is specific concerning the circumstances in which the bodily injuries which give rise to the action must have occurred: either whilst on board the aircraft or in the course of any of the operations of embarking or disembarking.  There will be no liability on the part of the carrier for any claims which arise in the course of international carriage by air other than in the circumstances prescribed by Article 17.  Article 17 directs a court to consider both when and where an event takes place in evaluating whether a claim for an injury to a passenger is pre-empted.

72.  Where an incident occurs on board an aircraft or in the course of any of the operations of embarking or disembarking then the exclusive right of action which a plaintiff has lies under, and subject to the limitations of, the Convention: if for whatever reason a condition for liability under the Convention is absent then the plaintiff's claim is unenforceable: Sidhu v British Airways, El Al v Tseng and King v. American Airlines, Inc. (supra)). 

73.  In Sidhu v British Airways at p. 435 Lord Hope of Craighead commenced his speech by saying:

My Lords, the question in these two appeals is whether the Warsaw Convention... provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.

and went on to answer that question in the affirmative.  In the course of doing so, he said at p. 447:

In its context the purpose seems to me to be to prescribe the circumstances - that is to say, the only circumstances - in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air.

The phrase "the cases covered by article 17" extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19.

74.  The speech of Lord Hope is clear: Article 17 determines the limits of liability of the carrier in respect of claims, claims which “arise out of”, in Lord Hope’s words, international carriage by air. Conversely, once international carriage by air has ceased (or before it commences) the provisions of the Convention do not apply to any accident that occurs.

75.  It appears to have been an apprehension of the extension of the application of the Convention beyond its original intended ambit that led Ginsburg, J., to say in El Al v Tseng (supra):

The Second Circuit feared that if Article 17 were read to exclude relief outside the convention for Tseng, then a passenger injured by a malfunctioning escalator in the airline’s terminal would have no recourse against the airline, even if the airline recklessly disregarded its duty to keep the escalator in proper repair… As the United States pointed out in its amicus curiae submission, however, the Convention addresses and concerns, only and exclusively, the airline's liability for passenger injuries occurring "on board the aircraft or in the course of any of the operations of embarking or disembarking"… "[T]he convention's pre-emptive effect on local law extends no further than the Convention's own substantive scope"... a carrier, therefore, "is indisputably subject to liability under local law for injuries arising outside that scope: e.g. for passenger injuries occurring before ‘any of the operations of embarking or disembarking’".

(followed in King v American Airlines (supra))

76.  This is particularly pertinent in the light of the decision in Sidhu, of which Ginsberg J. was aware at the time of delivering judgment.

77.  It is to be noted that although Article 17 of the Convention contents itself with the phrase “in the course of” Lord Hope used the phrase " in the course of, or arising out of”.  As the authors of Carriage by Air, 2001, Butterworths note at paragraph 7.15:

This [phrase “or arising out of”]arguably includes (for example) a claim for damage sustained by a passenger in the terminal building after completing the operation of disembarking, even though the carriage by air would by then have come to an end; such a claim could still be said to be one "arising out of" the carriage by air.

78.  The issue which the judge should have addressed was whether the incident occurred during the period of international carriage by air or occurred at some other stage in the fulfilment by the defendant of its additional contractual obligations: if the former, the Convention applied; if the latter, it did not. 

Had the plaintiff disembarked?

79.  In order to determine that question, it seems to me, one need only look to the provisions of Article 17 and consider whether the incident occurred in the course of any of the operations of disembarking.  If the plaintiff had not completed the disembarkation process then the international carriage by air was incomplete and the Convention applied: if the disembarkation process was complete then, in my judgment, so was the international carriage by air. See United States Court of Appeals for the Ninth Circuit’s decision in Lathigra v British Airways PLC41 F.3d 535; 1994 U.S. App. LEXIS 33666 (applied in Prescod v AMR, Inc383 F.3d 861; 2004 U.S. App. LEXIS 17432) which, although dealing with a claim for delay rather than injury, held:

Once the passenger presents herself to the carrier or its agents as ready to begin the air journey, the Convention generally governs liability for delays in the carrier’s performance, and its provisions apply until completion of disembarkation at the destination airport.

80.  Support for this approach is to be found in Rabinowitz v Scandinavian Airlines 741 F.Supp. 441; 1990 U.S.Dist LEXIS 8173 thus

To adopt plaintiffs' position of continuous liability from the time a passenger embarks on the first of a series of connecting flights on that same airline until she disembarks from the final flight would be to impose liability on the airline for any accident that may occur in airport terminals en route, in direct contravention of the explicit terms and purpose of Article 17.

81.  The judge erred, in my view, when he made the finding that the plaintiff “…was still in the process of disembarking up till the plaintiff was actually handed over to the appointed guardian at the airport.”.  To take that finding to its logical conclusion demonstrates its fragility: if the arrangement were that the plaintiff was to be handed over to the nominated person at a vehicle in a parking lot at the airport and the plaintiff were injured in the course of crossing that parking lot en route to the nominated person, on the judge's finding the plaintiff's claim would be subject to the operation of the convention.  With respect, that simply cannot have been the intention of those concluding the Convention.

82.  Whether or not a passenger has completed disembarkation is largely a factual question in each instance.  There are any number of decisions in a wide range of the jurisdictions which are party to the Convention which deal with individual sets of circumstances.  Despite the recognition of the desirability of consistency in application and interpretation of the Convention across all jurisdictions, not all of those decisions are readily capable of being reconciled.

83.  As indicated in § 63 the judge favoured the “tripartite” approach developed in the United States.  I believe he was justified in doing so.  An instructive overview of how that test developed is to be found in Alleyn (supra):

At first, courts determined the factual boundaries of [the phrase "in the course of any of the operations of embarking or disembarking"] by focusing almost exclusively on the physical location of the passenger when injured, in proximity to the aircraft... Day... shifted the focus away from location alone and created a flexible, tripartite evaluation to determine when Article 17 applies... The Second Circuit adopted a test developed by Judge Brieant in the Southern District which examines where the plaintiff was when the accident occurred ("location”), what the plaintiff was doing ("activity"), and at whose direction the plaintiff was acting ("control")...

After Day courts around the country began to apply this three prong test to determine whether a specific accident occurred during the course of embarking or disembarking... A review of case law reveals that a court's determination hinges upon the specific facts of the case presented and how analogous or distinguishable those facts are from the facts of previously decided cases...

The majority of cases that have examined the issue of what is and is not disembarking have narrowly construed the term, denying most accidents the coverage of the Convention.

84.  I, too, would adopt that test. Applying it to the facts of the present matter as set out in § 39 the judge should have found that the plaintiff had completed disembarkation, with the result that the incident which gave rise to the plaintiff's claim did not arise in the course of international carriage by air.  Had the judge made this finding he would have found the Hong Kong courts to have jurisdiction, by virtue of the cause of action arising here, and that the two-year limitation period created by Article 29 does not apply to this matter with the result that the claim is not time-barred.

Other matters considered by the judge

85.  In the light of the view I take on this matter whilst it is unnecessary for me to deal with the other issues considered by the judge I would indicate my views briefly.

86.  I agree with his conclusion that the destination was Kuala Lumpur: in Grein v Imperial Airways Ltd [1037] 1 KB 50 at 81 the Court of Appeal said:

…the contract by reference to the place of departure and the place of destination are to be ascertained may be any contract of carriage whether for a single journey, for a circular journey or for a return journey: the place of departure and the place of destination mean the places at which under the particular contract in question the contractual carriage begins and ends. In the case of a return journey this will be or include, as the case may be, the place out to and back from which by the contract the passenger is to be carried.

A similar approach to the determination of the place of destination has been adopted in the United States: see, for example, Baah v Virgin Atlantic Airways Limited 473 F. Supp. 2d 591; 2007 U.S. Dist. LEXIS 9102 citing Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997) and Schopenhauer v. Compagnie Nationale Air France, 255 F. Supp. 2d 81, 85 (E.D.N.Y. 2003).

87.  The judge took the view, correctly in my judgment, that the fact, of itself, of the incident occurring in Hong Kong would not change the status of Hong Kong from being a stopping place into being the destination for the purposes of Article 29 of the Convention.

88.  The judge effectively left open the question of whether the two-year limitation period created by Article 29 affected the claim postulating an argument which he felt, if accepted, might result in the issue of the writ being within the period of limitation.  I would not interfere with that conclusion.

89.  The judge dismissed the plaintiff's claim and declined to grant the plaintiff leave to make application to file an amended claim.  The judge was made aware of the institution of alternative proceedings which prima facie would not have been subject to the provisions of the Convention and therefore not time-barred.  In my judgment he erred in taking the approach he did.

Conclusion

90.  I would consequently allow the appeal with an order nisi for costs in favour of the plaintiff.

Hon Rogers VP:

91.  The appeal will therefore be dismissed with orders as indicated in paragraph 34above.