The reasons of the primary judge and MacRobertson Miller
77 After setting out the agreed facts, the issues and the legislative scheme, the primary judge dealt with the approach to interpretation of the Convention. Much of what the primary judge said was orthodox and unexceptional, but at [19] and [20] of his reasons the primary judge threw doubt upon the United States' jurisprudence about the Warsaw Convention. He did this misunderstanding, with respect, what Mason P had said in Emery Air Freight 47 NSWLR at 704-705. The primary judge appeared to take from Mason P's reasons the propositions that the United States was not a party to the Warsaw Convention or later related conventions and that because of this the United States' decisions should be looked at "closely", meaning warily. This is not what Mason P said or meant. Mason P noted (Emery Air Freight at [51]) that the United States was not a party to "the Warsaw Convention as amended by the Hague Protocol and/or the Guadalajara Convention". This was not a statement by the President that the United States was not a party to the unamended Warsaw Convention. It is, and was in 1999 at the time of Mason P writing in Emery Air Freight, a party to the unamended Warsaw Convention. The "close examination" of the United States cases on the unamended Warsaw Convention was as to their potential value, not their potential unreliability. This doubt as to the value of the United States' jurisprudence may have contributed to the view taken by the primary judge that Aanestad and Hurley should be followed in preference to the overwhelming body of authority to which I have referred. The respondent's submission also was to the effect that Mason P in Emery Air Freight was casting doubt on the United States' authorities. I reject this submission.
78 The primary judge noted the decision of Knight DCJ in Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1. In that decision Knight DCJ had applied the authorities to which I have referred and refused to follow Aanestad and Hurley. In doing so Knight DCJ at 50 NSWLR 12[47] (correctly in my view) took from the text of the Warsaw Convention as amended by the Hague Protocol 1955 assisted by the overseas cases to which he referred that:
[T]he place of destination within the meaning of the Convention [is] the ultimate destination as determined from the contract evidenced by the ticket
79 Knight DCJ distinguished MacRobertson Miller. The primary judge said Knight DCJ was wrong to do so, in particular because he, Knight DCJ, did not refer to Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 8 NSWLR 242 (Court of Appeal) and (1988) 165 CLR 197 (High Court).
80 It is therefore important to understand what the High Court in MacRobertson Miller did, and did not, decide and whether any of the judgments in Oceanic Sun Line bears on the disposition of the appeal.
81 The issue in MacRobertson Miller was whether a completed ticket issued to a prospective passenger for a flight from Perth to Port Hedland and return was chargeable with stamp duty as "an agreement or any memorandum of an agreement" within the Stamp Act 1921 (WA). In the resolution of that issue, it was of importance to understand whether there was a binding contract made by the issue of the ticket or one that was already in existence of which the ticket was a memorandum. In either of these circumstances, the ticket would have been dutiable. On the other hand, if the ticket was a written offer which was accepted by the conduct of the passenger by him or her either retaining the ticket or boarding the plane, the ticket would not have been dutiable: see the cases cited in argument at 133 CLR 127-128. Also, if the ticket contained no promises at all and could be seen as illusory, there would be no offered consideration and therefore no contract and, once again, the ticket would not be dutiable.
82 Neither the Warsaw Convention nor the Montreal No 4 Convention was relevant. Thus, there was no discussion of the place of contract formation in international air carriage covered by any relevant convention, and in particular the place of Art 3 para 2 in the assessment of what contract had been formed.
83 Barwick CJ, after setting out a description of the ticket and coupons and the carrier's terms and conditions concluded that the carrier did not by its terms offer to assume any contractual obligation. The exemptions on the ticket "fully occupie[d] the whole area of possible obligation, leaving no room for the existence of a contract of carriage": 133 CLR at 133. Thus, for Barwick CJ, a contract only came into existence by any actual carriage that might take place, in which case it would be on the terms identified in the ticket. Barwick CJ also made some more general statements as to contractual formation in circumstances of airline booking and travel. At 134 he said:
The issue of the ticket, in my opinion, is mainly a receipt for the payment of the fare, though it also stipulates an occasion when the fare may not be refundable though actual carriage has not ensued. The payment made on the making of the reservation ought, in my opinion, to be regarded as no more than the prepayment of the fare payable for an actual carriage performed. Having regard to the continguencies [sic] of airline operation it would be incongruous to infer the making of a promise to carry from the mere payment of the fare and its acknowledgement by the issue of a ticket. The ticket, apart from any specific terms it may contain, would not be regarded as entitling its holder to a place on a particular flight. It should be regarded as doing no more than denominate the carriage which, if performed, will earn the prepaid fare. If, as in the present case, the ticket contains terms of carriage, these will, given the performance of the denominated carriage, regulate the relationship of the parties during and in connexion with such carriage and thus their respective rights in relation thereto.
84 Whatever may be the legitimacy of the above propositions (and without intending to cast doubt on them) they are not (and indeed could not be) binding authority as to the formation of any particular contract. Further, they do not assist with the assessment of contract formation in relation to carriage under the Act and the Convention by reference to the terms and effect of Art 3 para 2. Nor do these propositions assist in ascertaining whether the acceptance by the respondent of the carriage offered by this ticket, at the latest, by boarding in Beirut crystallised the formation of a contract for the provision of carriage for the whole round trip or only the formation of a contract of carriage for each leg for which check-in had been completed.
85 Here, unlike the facts in MacRobertson Miller, the terms of the Gulf conditions provided for substantial legal obligations on Gulf. The acceptance of any offer in the ticket and terms, by picking up the ticket or boarding the plane in Beirut, can be seen to crystallise a contract, albeit executory in part as to the future, for carriage on the four sectors identified in the ticket, with the place of destination being Beirut: see Art 3.3.5 of Gulf's general conditions. Further, nothing in the facts here or in the statements of Barwick CJ is any foundation to rebut the prima facie position directed by Art 3 para 2.
86 Stephen J focussed upon the timing and method of contract formation. After looking at various carriage and ticket cases he concluded that the ticket was no more than an offer capable of acceptance. Acceptance could be by the passage of a reasonable time to examine the ticket conditions or by boarding the plane. In either case, the ticket was not dutiable. Nothing said by Stephen J assists in gainsaying any proposition that the ticket in this case, after a reasonable time after issue or upon the respondent boarding at Beirut, evidenced a concluded contract for a round trip on Gulf's usual terms and conditions with Beirut as the (agreed) place of destination for the purposes of the Convention.
87 Jacobs J was also of the view that the ticket was not dutiable. Like Stephen J, he analysed the ticket as an offer to be accepted. Like Barwick CJ, he also thought that the exceptions and exclusions negatived any contractual obligation to carry. My comments in relation to Barwick CJ and Stephen J therefore also apply to his Honour's reasons.
88 Thus, I do not see how MacRobertson Miller can determine this case. The Convention, Art 3 para 2 has the force of law by reason of a law of the Parliament. Unless there is a basis, being evidence of a different agreement between the parties as to the place of destination, to rebut the prima facie position, there is a concluded contract and the contractual place of destination is as on the ticket. The time of bilateral formation between passenger and carrier can be accepted to be either a reasonable time after delivery of the ticket or upon boarding. Such acceptance, however, should be viewed as referable to the whole offer contained in the ticket - the round trip which the ticket describes and which the Convention treats as a concluded contract. Nothing in MacRobertson Miller provides a foundation to rebut the presumption in Art 3 para 2 and to require each flight or each group of flights covered by a check-in and boarding to be subject to a separate contract having a separate place of destination.
89 Nothing in Oceanic Sun Line in the Court of Appeal or the High Court affects the position. That was a ticket case in relation to an ocean cruise. The question at issue there, relevant for present purposes, was where the contract between the passenger and the carrier had been made. McHugh JA (with whom Glass JA agreed) distinguished MacRobertson Miller by reference to something Barwick CJ had said in MacRobertson Miller at 135:
… a promise to carry may be more appropriately made by a steamship company than by an airline operator. The marked degree of certainty on the one hand and of uncertainty on the other affords good ground for distinguishing the inferences which, apart from express provisions, might be drawn in the one case though not in the other.
90 In the High Court, MacRobertson Miller was distinguished: at 206-207 by Wilson J and Toohey J by reference to the facts there present and at 226-228 by Brennan J by reference to the facts, including the different width of the exclusion clauses.
91 Knight DCJ in Vertzyas was not in error in failing to deal with Oceanic Sun Line. That failure did not detract from his otherwise clear and powerful reasons.