The governing legislation
4There was no issue but that the flight in question was governed by the Convention for the Unification of Certain Rules Relating to International Carriage by Air done at Warsaw on 12 October 1929 (the "Warsaw Convention") as amended by the Protocol that was opened for signature at the Hague on 28 September 1955 (the "Hague Protocol") and by the Protocol done at Montreal on 25 September 1975 and called "Montreal Protocol No 4 to amend the [Warsaw Convention] as amended by the [Hague Protocol]" (the "Montreal Protocol"). The Warsaw Convention, the Hague Protocol and the Montreal Protocol are to be read and interpreted together as one single instrument that is set out as Schedule 5 to the Act. I will refer to the combined convention hereafter simply as "the Convention" and I will refer to the Warsaw Convention as amended by the Hague Protocol as the "Warsaw/Hague Convention". Part IIIC of the Act (ss 25J-25N) concerns carriage to which the Convention applies. In due course, it will be necessary to discuss provisions in other Parts of the Act; for the present, it is of assistance to set out relevant provisions of Pt IIIC and of the Convention.
5Section 25K in Pt IIIC of the Act gives the Convention the force of law:
"(1) Subject to this Part, the Convention has the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.
(2) A reference in this Part to the Convention is to be read, unless the contrary intention appears, as a reference to the Convention as having the force of law because of this section."
(The phrase "the Convention" is defined by s 25J and s 5(1) in the same way I have above.)
6By s 25L, certain provisions of Pt IV of the Act are to apply when the Convention applies:
"Sections 35 to 39 (inclusive) apply to carriage to which the Convention applies in the same way as they apply to carriage under Part IV, and for that purpose:
(a) a reference in section 37 to Part IV is taken to be a reference to this Part and the Convention; and
(b) any other reference to Part IV is taken to be a reference to the Convention."
7Sections 35 to 39 that are incorporated into Pt IIIC by s 25L are contained in Pt IV of the Act, which deals with carriage that is inter-State, from a Territory, within a Territory or from Australia that is not carriage to which the various international conventions apply. Its provisions (ss 26-41) set out a regime, the language of which derives from the conventions.
8Section 35 deals in detail with liability in respect of the death of a passenger, identifying those who can sue and the damages that can be recovered. Section 35(2) is in the following terms:
"Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger."
9Section 36 deals with liability in respect of injury of a passenger. It is in the following terms as amended by s 25L for its incorporation into Pt IIIC:
"Subject to the next succeeding section, the liability of a carrier under [the Convention] in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury."
10Section 37 is central to the resolution of the controversy and is in the following terms, as amended by s 25L for its incorporation into Pt IIIC:
"Nothing in [Pt IIIC and the Convention] shall be deemed to exclude any liability of a carrier:
(a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers' compensation; or
(b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger;
but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part."
(Section 37 has counterpart provisions in ss 9F and 14 of the Act.)
11Section 38 deals with proceeds of insurance policies and other subventions.
12Section 39 deals with contributory negligence.
13It is important to note that s 34, which is not incorporated into Pt IIIC, deals with limitation of actions and provides for a two year time bar, the language of which can be seen to be taken from Art 29 of the Warsaw Convention and the Convention, as follows:
"The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination:
(a) the date on which the aircraft ought to have arrived at the destination; or
(b) the date on which the carriage stopped;
whichever is the later."
14There are a number of provisions of the Convention that are relevant as having the force of law in the resolution of the controversy. For reasons that will become apparent it is also necessary to have regard to cognate provisions of the Warsaw Convention.
(a) The scope of application is to all international carriage. Agreement between the parties is, however, central. Article 1 rr 1 and 2 are in the following terms (being identical to the same provisions in the Warsaw Convention):
"1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
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 purpose of this Convention."
(b) The requirement for a ticket and the central place of the contract can be seen in Art 3 which is different in form, but similar in substance, to Art 3 in the Warsaw Convention. Article 3 in the Convention is in the following terms:
"1. In respect of the carriage of passengers a ticket shall be delivered containing:
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the Territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;
(c) a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.
2. The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention. Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by paragraph 1 (c) of this Article, the carrier shall not be entitled to avail himself of the provisions of Article 22."
(c) The liability of the carrier is provided for by Art 17. This creates a cause of action and is in the following terms (being identical to Art 17 of the Warsaw Convention):
"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."
(d) Article 18 deals with damage to baggage or cargo. Article 19 deals with delay.
(e) The question of fault and onus is dealt with in Art 20. Similar, but differently worded, provisions exist in the Warsaw Convention. Article 20 is in the following terms:
"In the carriage of passengers and baggage, and in the case of damage occasioned by delay in the carriage of cargo, the carrier shall not be liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures."
(f) Contributory negligence is dealt with in Art 21 r 1, which is in the following terms (being similar to relevant provisions in the Warsaw Convention):
"In the carriage of passengers and baggage, if the carrier proves that the damage was caused by or contributed to by the negligence of the person suffering the damage the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability."
(g) Limits of liability are dealt with in Art 22, somewhat more elaborately than in the Warsaw Convention. It is appropriate to set out the terms of Art 22 because they help illuminate the role played by the words "fixed by or in accordance with this Part" in s 37. Article 22 is in the following terms:
"1. In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
2. (a) In the carriage of registered baggage, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the passenger's or consignor's actual interest in delivery at destination.
(b) In the carriage of cargo, the liability of the carrier is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the consignor's actual interest in delivery at destination.
(c) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
3. As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger.
4. The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.
5. The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.
6. The sums mentioned in terms of the Special Drawing Right in this Article shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgment. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that High Contracting Party.
Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 2 (b) of Article 22 may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier in judicial proceedings in their territories is fixed at a sum of two hundred and fifty monetary units per kilogramme. The monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. This sum may be converted into the national currency concerned in round figures. The conversion of this sum into the national currency shall be made according to the law of the State concerned."
(h) Article 24 r 1 is important. The applicant's argument was to the effect that the action for indemnity and contribution was conditioned by the time limit in Art 29. One route to that conclusion was the argument that the action for indemnity or contribution was a cause of action created or recognised by the Convention, Arts 17 and 24, the consequence of which was, it was submitted, that it was limited or conditioned by the time bar. Article 24 is in the following terms:
"In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights."
(i) The words of the English text of Art 24 of the Warsaw Convention are slightly different, but essentially similar.
"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."
(j) The time bar provision, Art 29, is in the following terms (being the same as in the Warsaw Convention and the Warsaw/Hague Convention):
"1. The right to damages shall be extinguished if an action is not brought within two 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.
2. The method of calculating the period of limitation shall be determined by the law of the Court seised of the case."
(k) Article 30A provides for rights of recourse of a person liable under the Convention in the following terms:
"Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person."
15Section 8(2) of the Act provides for the primacy of the French texts of the instruments making up the Convention, and all other conventions referred to in s 8 other than the Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999 (the "1999 Montreal Convention"). It will be necessary to refer to the French text of some relevant provisions in due course.