Fellowes or Herd (A.P.) and another (A.P.) v. Clyde Helicopters Limited

The House of Lords held that the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) and Schedule 1 to that Order (the United Kingdom rules derived from the Hague/Warsaw provisions) applied to the fatal flight and therefore provided the exclusive statutory code governing liability for the death of Sergeant Herd. In particular, the court concluded that (i) the helicopter was being operated by the respondents as carrier for reward under the contract with Strathclyde Regional Council; (ii) Sergeant Herd was being "carried" and for the purposes of the Schedule was a "passenger" despite being on board to perform police duties; and (iii) the Schedule (notably articles 1, 17, 22 and 24(2)) limits the carrier's liability and excludes parallel common law negligence remedies. The court rejected the submission that application of the Order required the deceased to be a party to, or to have consented to, the contract of carriage. The House considered foreign authorities and purposive/contextual arguments but concluded the ordinary meaning of the Order and its articles governed. The appeal was dismissed.

This was an appeal from the Scottish courts concerning an action in reparation brought by the relatives of Sergeant Malcolm Herd, a police officer killed in a helicopter crash while on operational duty. The respondents, Clyde Helicopters Ltd., had supplied and operated the helicopter under a contract with Strathclyde Regional Council. The pursuers sued in negligence at common law. The respondents contended that the Carriage by Air Acts (Application of Provisions) Order 1967 applied and thereby limited and regulated any liability, excluding ordinary common law causes of action.

Procedural posture:

• The Lord Ordinary (Lord Milligan) found for the respondents on the applicability of the Order. On reclaiming motion the Second Division of the Court of Session adhered to that interlocutor (1996 S.L.T. 976) with one dissent. The appellants appealed to the House of Lords.

Nature of the claim and issues:

• (i) The claim sought damages for death arising from alleged common law negligence by the respondents' pilot.
• (ii) Issues framed by the court included whether the Order and Schedule 1 applied to the fatal flight, whether Sergeant Herd was a "passenger" for the purposes of the Schedule, whether carriage for reward existed even though the contract was between the carrier and the police authority, and whether the Schedule displaced common law remedies.

Decision and reasoning (concise):

• The House held that Schedule 1 to the 1967 Order applied. The contract between the respondents and the police authority required the respondents to supply aircraft and crew for the police service, was for reward, and made the carrier responsible for operation. The carrying of police officers pursuant to that contract fell within the ordinary meaning of "carriage of persons . . . performed by aircraft for reward" (article 1) and Sergeant Herd was therefore a passenger for the purposes of the Schedule. Article 17 created carrier liability for death or wounding of a passenger where the accident occurred on board; article 24(2) limited remedies to those provided by the Schedule; and article 22 limited the amount recoverable for each passenger.
• The Lords rejected the argument that the rules only applied where the person carried was a party to a contract of carriage or where the contract specified places of departure and destination. They examined purposive considerations, the enabling power in section 10(1) of the Carriage by Air Act 1961, and foreign jurisprudence (France, United States, Canada) but concluded none required departure from the plain meaning of the Order.
• The House noted the advantages of the statutory scheme in providing a defined liability regime where proof of fault may be difficult. The appellants' negligence claim was therefore excluded and the statutory scheme provided the exclusive remedy. The Lords also decided, after considering statutory provisions on legal aid and costs, that costs consequences and an application to the Scottish Legal Aid Board should be addressed as indicated in the speeches.

Appeal dismissed. The House of Lords held that the Carriage by Air Acts (Application of Provisions) Order 1967 and Schedule 1 applied to the flight in question; Sergeant Herd was a "passenger" carried for reward under the contract between the carrier and the police authority; accordingly the Schedule provided the exclusive code governing liability (articles 1, 17, 22 and 24(2) in particular), displacing any separate common law negligence claim.

Lord Ordinary (Lord Milligan) found for the respondents; on reclaiming motion the Second Division of the Court of Session adhered to that interlocutor (1996 S.L.T. 976) with Lord Murray dissenting; appealed to the House of Lords, decided [1997] UKHL 6 (reported [1997] AC 534).