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To exercise these rights, he must produce his copy of the air waybill (Art 12(3)). From the consignee’s viewpoint, the rights given by Art 12(1) may be acceptable where he has not paid for the goods. But, where the consignee has paid for the goods, it seems that he might have no right of action against the carrier for wrongful delivery against the carrier since the carrier will be well within the ambit of Art 12 were he to deliver to someone other than the ‘original’ consignee, unless there is fraud and the carrier is aware of the fraud.

If the buyer is unhappy with the extreme powers of control granted by Art 12, he can protect himself by express agreement whereby the rights of control are granted to him and this express agreement must be included in the air waybill (Art 15(2)).

As for payment of freight, it seems that the consignor will be liable to pay to the consignor.86

Consignee’s responsibilities and rights

On arrival at the destination, the consignee, by handing over his copy of the waybill, can demand delivery of the goods, provided he pays the charges and complies with the delivery conditions set out in the waybill (Art 13(1)), as long as the consignor has not exercised his rights under Art 12(1). It is not clear what is meant by charges in the context of Art 13(1). Presumably, it refers to freight that may be payable on collection. However, where the arrangement is for the consignor to pay the freight, he will be liable to the carrier.

Proceedings

Choice of forum

Both versions of the Warsaw Convention87 contain a provision specifying the places where a plaintiff may bring an action for damages against the carrier. Article 28(1) states that the plaintiff has the option of bringing an action for damages in the territory of one of the High Contracting Parties, in a court having jurisdiction at one of the following places:

•where the carrier is ordinarily resident;

•where the carrier has his principal place of business;

•where the carrier has an establishment by which the contract has been made; or

•at the place of destination.

There are obvious advantages of having an exhaustive and clearly worded jurisdiction provision since it reduces uncertainties about where to bring an action and also puts an end to forum shopping. Article 28(1), unfortunately, is not exhaustive and far from clear. The provision is inexhaustive since it only mentions action for damages against the carrier. An action for freight by the carrier against the consignor or the consignee, and an action for indemnity between carriers, for instance, would not fall within the ambit of Art 28(1).

Of the four options the plaintiff has for bringing an action, the place where the carrier has his principal place of business is the least difficult for interpretation purposes. The principal place

86 Swiss Air Transport v Palmer [1976] 2 Lloyd’s Rep 604; Panalpina International Transport v Densil Underwear [1981] 1 Lloyd’s Rep 197.

87The Gautemala Protocol 1971 adds a further forum but this applies to action for damages resulting from death, injury or delay of a passenger, or the destruction, loss or delay of baggage.

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of business is commonly understood to be the place where the major part of the executive work is carried on.88

The possibility of bringing an action where the carrier is ordinarily resident causes problems. The use of the phrase ‘ordinarily resident’ in Art 28 is surprising since in English law this is generally applied to individuals and not to corporations. There are a few tax cases, however, where residence, as applied to companies, has been construed to mean the place where the ‘central management and control actually abides’.89 The phrase was considered in England90 in Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corp.91 The defendants carried a cargo of cigarettes from Amsterdam to Jeddah. The cargo was partly lost and partly damaged during transit, and the defendants were served with a writ at their London office. Both at first instance and on appeal, it was held that the defendants were not ordinarily resident in England. The existence of a branch office was deemed insufficient. Mustill J suggested that ‘ordinarily resident’, if it applies to corporations at all,92 could mean the place where the body is incorporated, or the place where the central management and control are found. The Court of Appeal, although agreeing with the decision, did not elaborate on the suggestions put forward by Mustill J.

As for the third option – that is, where the carrier has an establishment by which the contract has been made – normally, the air waybill will be issued where the cargo has been handed over to the carrier or his handling agents. Problems may arise where cargo is weighed and checked in by a cargo handler who is not the ‘appointed agent’ for the carrier. It is difficult to see how a one-off transaction will be sufficient to suggest the degree of permanence the word ‘establishment’ seems to imply. It must, however, be said that the US courts have been willing to state that the carrier has a place of business in the most tenuous of relationships by importing notions of agency.93 This wide interpretation on the part of the US courts is (arguably) made possible since the American translation of the French text ‘un établissement par le soin duquel le contrat a été conclu’ reads ‘a place of business through which the contract has been made’.

The fourth option allows the action to be brought in the appropriate court at the place of destination. Generally, the place of the destination will be stated on the air waybill, and there is no problem where the consignor does not change his mind about the destination. However, Art 12(1) gives the right to request carriage to another destination. Presumably, the action can be brought at the new destination since the purpose of the provision seems to be for the consignee’s benefit.

A question that arises in relation to Art 28(1) is whether the options limit the claimant’s choice of jurisdiction. What if the defendant was to put in an uncontested appearance in the jurisdiction chosen by the claimant that is not a forum specified in Art 28(1)? According to Art 32, an arrangement regarding jurisdiction made prior to the damage would be null and void.This emphasis on the timing of the agreement suggests that where an agreement regarding damage is reached after the event, or the defendant puts in an appearance it will be acceptable. Policy arguments, such as protection of the weaker party (e.g., consumer or trader from a developing country) will not affect such a conclusion since the claimant will inevitably be the person whose cargo has been lost or damaged.

88See Eck v United Arab Airlines Inc [1966] 2 Lloyd’s Rep 485.

89De Beers Consolidated Mines Ltd v Howe [1906] AC 455, at p 458.

90The US decisions are not of much use for interpretation purposes, since the American translation uses the word domicile (domicile in the French text). In French law, the domicile of a corporation is its seat and is not the same as the common law notion of domicile.

91[1981] QB 368; [1980] 3 All ER 359.

92Miller, Liability in International Air Transport, 1977, Kluwer, at pp 300–1.

93Eck v United Arab Airlines Inc [1966] 2 Lloyd’s Rep 485.

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As for rules of procedure, Art 28(2) states that these should be left to be determined by the law of the forum. If procedural matters are not part of the convention, would it be possible for a defendant to invoke the doctrine of forum non conveniens in order to stay proceedings in the jurisdiction chosen by the plaintiff? In Milor SRL and Others v British Airways plc,94 the defendants carried four cartons of jewellery and gold, worth US$750,000, from Milan to Philadelphia. The cartons, stored in a bonded warehouse (also used by American Airlines) as general cargo on an open shelf, were stolen.The shippers, consignees and the forwarding agents brought an action for breach of contract in England, British Airways’ principal place of business. The defendants sought to move the proceedings to Pennsylvania, in the US, on the grounds that much of the evidence was situated at the place of the incident. According to the doctrine of forum non conveniens (a recent import into English private international law), a stay of action will be granted if the court is satisfied that another forum is more appropriate in the interests of justice.95

The defendants argued that, although Art 28(1) gave the plaintiffs an option to bring an action in a court of their choice, the word ‘brought’ in that Article meant ‘instituted’ since Art 28(2) gave authority to the court seised of the case to decide on issues of procedure.The issue of granting a stay on the grounds of forum non conveniens was a procedural matter, and, therefore, under Art 28(2), the court had the discretion to grant a stay. In support of their interpretation, the defendants provided instances of judgments from the courts of other contracting states to the Warsaw Convention.96

The plaintiffs, for their part, argued that Art 28 of the Warsaw Convention was a self-contained and exclusive provision on jurisdiction which could not be derogated from, according to Art 32, which states:

Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this schedule, whether by deciding the law to be applied, or by altering the rules to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed subject to this schedule, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Art 28.

If the court seised of the case were to have the discretion to stay proceedings on the ground of forum non conveniens, it would go against the substance of Art 32.

It was further claimed that the aim of Art 28 was to restrict forum shopping and harmonise the rules on jurisdiction among the contracting parties to the Warsaw Convention. If the Article were to be interpreted in a manner that imparted discretion to the courts seised of the case to stay proceedings, this would undermine the purpose of Art 28 and render meaningless the option given to the plaintiff by Art 28(1). It was also suggested that the ambiguity in the English text of Art 28 could be resolved by examining the French text and the travaux préparatoires.97

At the court of first instance,98 Longmore J held that ‘to construe the word “bring” in Art 28 as “initiate subject to a stay on the basis of a distinctly more appropriate forum elsewhere” [would be] too narrow an interpretation of that word’ (at p 8B), and he did not regard Art 28 as unclear to

94[1996] 3 All ER 537.

95See Lord Goff’s judgment in Spiliada Maritime Corp v Consulex Ltd [1987] AC 460.

96Air Crash Disaster Near New Orleans on 9 July 1982 821 F 2d 1147 (a decision of the Federal Court of Appeal of the United States, 5th Cir); Lu v Air China International Corp 24 Avi Cas 17 (decision of the United States District of New York) and Brinkerhoo Maritime Drilling Corp v PT Airfast Services Indonesia 2 S&B Av R 125 (decision of the Singapore Court of Appeal).

97In Fothergill v Monarch Airlines [1981] 2 AC 152, the House of Lords said that reference can be made to the travaux préparatoires provided this was done with caution.

98Transcript (No 1995 folio 1384, High Court of Justice, Queen’s Bench Division) produced by V Wason & Associates.

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warrant a reference to the French text. Accordingly, he held that it was inappropriate for the court to consider the question of forum non conveniens. On appeal, Phillips LJ also came to the conclusion that the court could not apply the doctrine of forum non conveniens where the contract of carriage was governed by the Warsaw Convention for the following reasons:

•Although the word ‘bring’ could, in appropriate circumstances, mean commencing an action (e.g., Art 29(1)), the option granted by Art 28, however, would be of value to the plaintiff only if the forum of his choice could resolve the dispute. Besides, the French text of the convention used two words. Article 28 used the word ‘portée’ and Art 29 ‘intentée’.The latter conveyed the narrow meaning of initiated and the former, in its context, meant commenced and pursued.

•Article 28(2) did not restrict the right granted by Art 28(1) since an express provision of the convention could not be validly displaced by a rule of procedure of the court seised of the case. For instance, a one-year limitation period under the laws of a chosen forum could not be used to displace the two-year limitation period imparted by Art 29 of the convention. Similarly, a grant of stay would go against the rights expressly granted to the plaintiff by Art 28.

•The creation of a self-contained code on jurisdiction implied that the purpose of the convention was to harmonise the different national laws on jurisdiction.

•The doctrine of forum non conveniens was not that prevalent in common law jurisdictions and was unknown in civil law countries when the Warsaw Convention was drafted.

The decision reached by the Court of Appeal is a sensible one since harmonisation and certainty – the primary aims of international conventions relating to trade – are recognised. Where a convention specifically provides for jurisdiction, the drafters clearly intend to restrict forum shopping and ensure an even greater degree of unity amongst the laws of different jurisdictions. In these circumstances, a decision that would have allowed the circumvention of a convention with a mandatory effect through the use of procedural rules of a forum would have undermined the framework of the convention and resulted in chaos. It is indeed unfortunate that the US courts have allowed such a possibility through their interpretation of the Warsaw Convention.

What is the position where a claim is brought not only against the carrier but also against the manufacturer of an aircraft in a jurisdiction other than those listed in Art 28? In Deaville and Others v Aeroflot Russian International Airlines,99 an Aeroflot flight crashed en route from Moscow to Hong Kong as a result of one of the pilots allowing his 13-year-old daughter and 15-year-old son to take the controls of the aircraft. The plaintiffs, dependants and relatives, brought an action in France against Airbus Industrie (the manufacturer) and Aeroflot (the carrier).100 They also initiated proceedings in England against Aeroflot101 in case the case failed for want of jurisdiction in France. The defendants sought for a declaration that the plaintiffs’ claim was governed by the Warsaw Conventions and France was not an Art 28 jurisdiction. They also sought an antisuit injunction on the basis that proceeding in France contravened international law and was oppressive and unjust. The plaintiffs, in turn, applied to stay proceedings. Mr Geoffrey Brice QC, dismissed the defendants’ application for a declaratory judgment and an anti-suit injunction. As for the declaratory judgment, he said it would go against the principles of comity and that the matter of interpretation and jurisdiction was for the French court. As for the anti-suit injunction, he did ‘not regard the plaintiff’s attempt to establish jurisdiction in the French courts as vexatious, oppressive or unjust’ bearing in mind that ‘whatever order [the] court might make, the

99[1997] 2 Lloyd’s Rep 67.

100Action commenced on 15 May 1996.

101Issued a writ on 21 March 1996 but served on 4 November 1996.

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French court will be deciding its own jurisdiction over Aeroflot in any event’. He felt it was ‘more appropriate for the French court to determine its own jurisdiction than for the English court to make an order against some claimants only to prevent them participating in those proceedings’ (at p 74).

However, Mr Geoffrey Brice QC seems to be indicating that, from an English perspective, the only permissible jurisdictions allowed where a carrier is joined by the manufacturer are those listed in Art 28 when he says:

The claims before this court fall full square within the Warsaw Convention, and that convention lays down obligatory rules as to the options open to a claimant regarding in which jurisdictions he may choose to bring his claim. These include a claim in the English courts, but not in the French courts. However, the convention is silent as to the position where the claim is brought not only against the carrier but also against the manufacturer. The claimants, relying upon what they perceive to be French domestic law, have brought their claims in France against both the carrier and the manufacturer. Following the reasoning in Sidhu,102 in my judgment, on the construction of the Warsaw Convention as interpreted in English law, this is not permissible; the only jurisdictions in which a claim may be brought against the carrier are those specifi ed in Art 28. There is nothing in the convention to suggest that this rule may be modified either under domestic law or otherwise so as to enable a claim to be brought in some jurisdiction not otherwise permissible under Art 28 on the ground that some other defendant (for example, the manufacturer) is being sued by the same claimant in some other jurisdiction [at p 72].

Arbitration

Parties are free to agree to submit disputes relating to carriage of goods either before or after the damage occurs. The arbitration, however, must be conducted at one of the fora specified in Art 28(1) (Art 32). Article 32 does not state whether the arbitration agreement must be in writing, apart from saying that ‘carriage of goods arbitration clauses are allowed’. The use of the word ‘clauses’, read in conjunction with the first sentence of the provision, which uses the words ‘clauses contained in the contract’, tentatively suggests that the agreement to arbitrate may be required to be in writing.

By whom

The consignor and the consignee have a right of action against the carrier under the amended and unamended versions of the Warsaw Convention (Art 14). However, it is possible that a person other than the consignee (e.g., the owner of the goods) may wish to sue the carrier. According to Art 14, the consignor or the consignee can sue in the interest of another, but it is possible that they may not wish to sue in the interest of one who owns the goods.103 Decisions in other jurisdictions

102Sidhu v British Airways plc [1997] 2 Lloyd’s Rep 76.

103This point was also made by Prichard J in a New Zealand case (Tasman Pulp and Paper Co Ltd v Brambles JB O’Loghlen Ltd [1981] 2 NZLR

225) as follows:

103The effect is that the owner of the goods is put completely in the hands of a nominal consignee who, for a variety of reasons, may be incapable of or averse to instituting proceedings against an airline. The consignee may be a customs agent or forwarding agent who is insolvent or in liquidation. Or the consignee may be a bank, the directors of which might well refuse to embark on costly litigation on behalf of a customer – even though that customer offered to indemnify the bank for costs. And, finally, however willing and able he may be, the action may not be one which the consignee is empowered to bring – his right to sue being limited to the rights conferred on him by Article 13 [at p 235].

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suggest that the provisions dealing with title to sue restricts the parties who can bring an action against the air carrier.104 However, the English courts have held that the convention’s silence in respect of the cargo owner’s right to sue should not be read as a removal of the rights he would normally have.105 In Gatewhite Ltd v Iberia Lineas Aeraes de Espana SA,106 the plaintiff, named as ‘notify party’ but not as consignee, who was the owner of a cargo of chrysanthemums, was regarded by the court as having title to sue, and, according to Gatehouse J, there was nothing in the convention that excluded him from having the right to sue the carrier, thus leaving to the forum to decide the issue. In his words:

In my view, the owner of goods damaged or lost by the carrier is entitled to sue in his own name and there is nothing in the convention which deprives him of that right. As the convention does not expressly deal with the position by excluding the owner’s right of action (though it could so easily have done so), the lex fori, as it seems, can fi ll the gap. While bearing in mind the need to guard against the parochial view of the common lawyer, I see no good reason why the civil lawyer’s approach to the construction of the convention, based on the importance of contract, should be of overriding importance. The fact is that the convention is silent where it could easily have made simple and clear provision excluding the rights of the ‘real party in interest’, had that been the framers’ intention.

It would be a curious and unfortunate situation if the right to sue had to depend on the ability and willingness of the consignee alone to take action against the carrier, when the consignee may be (and no doubt frequently is) merely a customs clearing agent, a forwarding agent or the buyer’s bank [at p 950].

The view expressed by Gatehouse J is sensible, and without doubt injustice will result if the owner has to rely on their goodwill to bring an action against the carrier.

In Western Digital Corp and Others v British Airways plc,107 the Court of Appeal approved the approach taken in Gatewhite and held that the owners of the consignment, not named as the consignee or the consignor or person entitled to delivery of the air waybill, had title, as principal, to sue. The court, after considering cases from a variety of jurisdictions (French, US, Guyana, New Zealand) and the wording of the provisions in the Warsaw Convention and approaching the issue from a pragmatic stance, concluded that it was sufficiently flexible to permit principals to have right of suit. According to Mance LJ:

In the view I take, the convention’s references to consignor and consignee should not therefore be read in an exclusive sense. The convention assumes, and to some extent (for example, in the context of Arts 13(3) and 30(3)) imposes, a particular contractual model. But that model also allows for fl exibility, both in the identifi cation of the consignor or consignee and, more importantly, in the identification of the principals of persons named in the air waybill as consignor or consignee.

104Bart v British West Indian Airways Ltd [1967] 1 Lloyd’s Rep 239 (heard in the Guyana Court of Appeal); in Manhattan Novelty Corp v Seaboard and Western Lines Inc (1957) 5 Avi Cas 17229, (NYSC), the judge said that Arts 12, 13, 14, 15 and 30 are exclusive and the plaintiff has no right of action despite having a proprietary interest.

105See Gatewhite Ltd v Iberia Lineas Aeraes de Espana SA [1989] 1 All ER 944, where the court considered judgments from other courts in arriving at their conclusion. See also Tasman Pulp and Paper Co Ltd v Brambles JB O’Loghlen Ltd [1981] 2 NZLR 225, where Prichard J said that the views expressed in Bart v British West Indian Airways Ltd and Manhattan Novelty Corp v Seaboard and Western Lines Inc were unreasonable.

106[1989] 1 All ER 944.

107[2001] QB 733.