Sidhu v British Airways Plc

The Warsaw Convention, as amended at The Hague, provides an exclusive and uniform code in the fields with which it deals. In relation to an air carrier’s liability, a passenger may bring an action for damages only on the conditions and within the limits prescribed by the Convention.

Accordingly, a passenger cannot rely on domestic common law to obtain damages for loss arising from international carriage by air merely because the Convention supplies no remedy on the facts. Article 24 covers all passenger claims arising from such carriage, save for the distinct baggage and delay claims governed by articles 18 and 19. This construction preserves the Convention’s balance of passenger protection, carrier liability limits, certainty and international uniformity.

Fare-paying passengers on a scheduled international flight from London to Kuala Lumpur were detained by Iraqi forces after the aircraft landed at Kuwait during the Iraqi invasion. They alleged physical and psychological injury, and some claimed baggage loss. Their claims against British Airways Plc were framed in common-law negligence or contract, rather than under article 17 of the Warsaw Convention.

The English claim was dismissed by Brentford County Court and the Court of Appeal dismissed the passengers’ appeal. The Scottish claim was dismissed as irrelevant by the Lord Ordinary, and the Extra Division refused the pursuer’s reclaiming motion: 1996 S.L.T. 529.

The House heard the English and Scottish appeals together. The central question was whether the Convention provided the exclusive cause of action and remedy for loss, injury and damage arising from international carriage by air.

1. Both appeals were dismissed unanimously. Lord Hope of Craighead delivered the substantive speech, with which Lords Browne-Wilkinson, Jauncey of Tullichettle, Mustill and Steyn agreed.

2. Per Lord Hope, the Convention required a purposive construction directed to international uniformity. It was a partial harmonisation: it did not regulate every aspect of international carriage by air. But it was intended to be exhaustive in the areas it did regulate, including the carrier’s liability.

3. Chapter III formed a balanced scheme. Articles 17 to 19 prescribed the circumstances in which liability arose. Articles 22 and 23 restricted the carrier’s ability to exclude or reduce liability, while article 24 required any action for damages, however founded, to be brought subject to the Convention’s conditions and limits. Articles 28 and 29 further supported a single, certain regime for jurisdiction and limitation.

4. The expression “the cases covered by article 17” in article 24(2) was not confined to claims in which the facts established liability under article 17. It extended to passenger claims against the carrier arising from international carriage by air, other than registered-baggage claims under article 18 and delay claims under article 19. Thus a passenger could not pursue a domestic common-law claim simply because article 17 afforded no remedy.

5. Although the result left the appellants without compensation for their alleged personal injuries, that was inherent in the Convention’s compromise. Domestic courts could not create a separate remedy without undermining the uniform code. The baggage claim was also extinguished by article 29 because proceedings were brought after two years.

• House of Lords: dismissed the English and Scottish appeals, holding that the Convention excluded the asserted common-law remedies.
• Court of Appeal (Civil Division): dismissed the Sidhu appellants’ appeal from Brentford County Court: Court of Appeal (Civil Division) Transcript No. of 1995.
• Extra Division, Court of Session: refused Abnett’s reclaiming motion against dismissal of the common-law claim: 1996 S.L.T. 529.
• Brentford County Court / Outer House, Court of Session: dismissed the respective claims. The Lord Ordinary held the Scottish court had jurisdiction but dismissed the action as irrelevant.