Western Digital Corpn v British Airways Plc

The Warsaw and Guadalajara Conventions regulate the nature and standard of liability, but do not generally confine cargo claims to persons named as consignor or consignee in an air waybill.

A principal of a named consignor or consignee may sue where domestic law treats the principal as party to the contract of carriage. An owner or person entitled to immediate possession may also have a non-contractual claim against an actual carrier, subject to the Convention’s liability scheme.

A complaint under article 26(2) must objectively identify, at least in general terms, the damage relied upon in the later action. A notice concerning the condition of goods does not constitute timely notice of their non-delivery.

Western Digital Singapore supplied computer equipment to Western Digital Nederlands. The consignments were consolidated by LEP International and carried under a Qantas air waybill. British Airways performed the relevant flight.

The claimants appealed declarations by David Steel J that they lacked a cause of action under the Warsaw Convention and an order striking out an amended alternative case based on LEP’s house air waybills. British Airways cross-appealed a ruling that letters sent within the prescribed period complied with article 26(2).

The principal issues were whether an unnamed principal or owner could sue an actual carrier, whether the proposed amendment introduced a new and time-barred cause of action, and whether the letters constituted a sufficient complaint concerning the lost cargo.

1. The appeal and cross-appeal were decided by a unanimous Court of Appeal. Mance LJ gave the leading judgment; Harrison J and Morritt LJ agreed.

2. The proposed paragraph 3A relied on a different contract, contracting carrier and source of authority from the case pleaded within two years. It therefore introduced a different cause of action. Article 29(1) extinguished that right to damages, and the amendment was rightly disallowed. The decision in The “Jay Bola” was consistent with that conclusion.

3. The Convention operates as a code governing the nature and standard of liability. Following Sidhu v British Airways, common-law claims cannot be used to evade the Convention’s conditions and limits. That principle does not answer the separate question of who has title to sue.

4. The references to consignor and consignee are not exclusive. The Convention does not require their identity to appear in the air waybill, does not define those expressions exhaustively, and does not exclude domestic rules under which a principal may sue through a named agent. A principal with a properly arguable contractual claim could therefore sue British Airways as actual carrier under the Guadalajara Convention.

5. The Court further held that an owner or person with an immediate right to possession may have a non-contractual claim against an actual carrier under domestic law. The Convention nevertheless governs the nature and standard of liability. The contrary declaration was set aside.

6. Article 26(2) imposes an objective requirement. A timely complaint must at least embrace the damage relied upon in the subsequent action. The letters referred only to the condition of identified goods and did not indicate that those goods had not arrived. They therefore did not comply with article 26(2), and article 26(4) barred the action.

7. Qantas’s 120-day clause for non-delivery could not artificially be construed as applying to partial non-delivery. Partial non-delivery fell within the contractual provisions concerning damage. The claim consequently failed for want of timely complaint.

• Court of Appeal: The claimants’ appeal succeeded as to the declarations concerning title to sue, but failed as to the amendment introducing paragraph 3A. British Airways’ cross-appeal succeeded on article 26(2), and the action was dismissed for want of a timely complaint.
• High Court, Queen’s Bench Division, Commercial Court: David Steel J declared that the claimants had no cause of action against British Airways and struck out paragraph 3A. He held that the letters complied with article 26(2).