Herd v Clyde Helicopters Ltd (Fellowes v Clyde Helicopters Ltd)

The domestic air-carriage rules apply to all carriage of persons by aircraft for reward. Their application does not require the person carried to be a party to a particular form of contract, nor does it depend on an agreed route or destination.

A person carried to perform duties unconnected with operating the aircraft may be a passenger. Where the death or injury of such a passenger falls within article 17 of Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967, article 24 makes the statutory remedy exclusive. Any action for damages, however founded, remains subject to the Schedule’s conditions and limits.

A police sergeant was killed while conducting surveillance aboard a helicopter supplied and flown by Clyde Helicopters Ltd under a contract with Strathclyde Regional Council. His relatives claimed reparation in negligence. The carrier contended that Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 governed the accident and excluded the common-law claim.

The Lord Ordinary upheld that contention. The Second Division of the Court of Session, Lord Murray dissenting, adhered to his interlocutor: 1996 S.L.T. 976. The relatives appealed. The central questions were whether this operational flight constituted carriage for reward, whether the sergeant was a passenger, and whether the statutory scheme supplied the exclusive remedy.

1. The appeal was dismissed unanimously. Lord Mackay of Clashfern L.C. delivered the principal speech. Lord Nicholls, Lord Hoffmann and Lord Clyde agreed with his reasons. Lord Hope agreed with the result and supplied further reasoning.

2. Per Lord Mackay L.C., Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 applied according to its ordinary language. The police authority paid for a service which included carrying the officers required by the Chief Constable. The sergeant was therefore being carried by aircraft for reward within article 1. It was unnecessary that he personally be a party to the contract or that the agreement take any particular contractual form.

3. Per Lord Mackay L.C. and Lord Hope, the sergeant was a passenger for article 17. His police duties included directing surveillance and communicating operational requirements, but the pilot alone controlled and flew the helicopter. The sergeant did not contribute to the carriage or operation of the aircraft. His presence for the performance of police duties did not alter his status as a passenger.

4. Per Lord Mackay L.C., article 24(2) excluded any action for damages outside the Schedule’s conditions and limits. The rules operated as rules of law governing carriers, passengers and other affected persons. They were not merely terms incorporated into a contract between carrier and passenger. The relatives’ remedy was consequently confined to the liability created by article 17 and limited by article 22.

5. Per Lord Hope, neither the international conventions underlying the Order nor the foreign decisions required a narrower construction. The rules were capable of accommodating new uses of aircraft and contractual arrangements without an agreed route or destination. Their general language, their no-fault liability and their purpose of providing certainty supported their application to the helicopter operation.

6. The appellants were found liable in the expenses of the appeal as assisted persons, but that liability was modified to nil. Subject to the Scottish Legal Aid Board having an opportunity to make representations, the Board was to meet the respondents’ expenses from the Scottish Legal Aid Fund.

• House of Lords: Dismissed the appeal and affirmed the conclusion that Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 governed the claim exclusively.
• Second Division of the Court of Session: Lord Justice Clerk Ross and Lord Morrison, Lord Murray dissenting, adhered to the Lord Ordinary’s interlocutor: 1996 S.L.T. 976.
• Lord Ordinary: Lord Milligan decided that the statutory air-carriage scheme excluded the pleaded common-law negligence claim.