Fujitsu Computer Products Corp & Ors v Bax Global Inc & Ors

Article 8(c) of Warsaw-Hague requires a recognisable, discrete notice warning that the Convention may apply, governs the carrier’s liability and generally limits that liability. The notice need not use prescribed words or a particular format, and information on the face and reverse of an air waybill may be read together. However, contractual conditions do not constitute the required notice merely because the relevant information can be extracted from them by careful analysis. The notice must be clear and directly informative. Where the air waybill omits the required notice, Article 9 prevents the carrier relying on the Article 22(2) limitation.

The claimants sought damages for the theft of hard disk drives carried by air from Manila to Glasgow under an air waybill governed by Warsaw-Hague. The carrier accepted potential liability under Article 18, but disputed whether its liability was unlimited.

The preliminary issue was whether the air waybill complied with Article 8(c), and, if not, whether Article 9 prevented reliance on the Article 22(2) limitation. The document referred on its face to a carrier’s limitation of liability and incorporated conditions printed on its reverse, but contained no discrete notice in the recommended form.

1. Preliminary issue answered yes. The air waybill did not contain the notice required by Article 8(c). Accordingly, by Article 9, the carrier could not rely on the limitation in Article 22(2). This determination concerned the preliminary issue only; title to sue, quantum and the allegation of conduct engaging Article 25 remained to be established.
2. Warsaw-Hague was construed in accordance with the ordinary meaning of its terms, their context and the Convention’s object and purpose. Article 31 of the Vienna Convention on the Law of Treaties represented the correct interpretative approach, although it did not have the force of law in the proceedings.
3. The words “a notice” required something recognisable as a discrete form of words warning of the Convention’s possible application and its effect on liability. Article 8(c) did not prescribe particular wording, a heading, format or separation from other text. Nevertheless, a reader could not be expected to derive the notice from a combination of contractual conditions by careful study.
4. The face and reverse of an air waybill could be read together. It was unnecessary to set out the definition of international carriage or identify the High Contracting Parties. The relevant wording nevertheless had to convey that the Convention governed liability and that limitation was the general operation of the Convention, subject to exceptions.
5. The air waybill’s conditions referred to Convention liability rules, special declarations and a contractual limit of US$20 per kilogram. They did not state that the Convention itself limited liability. The reference on the face to the carrier’s limitation naturally referred to a contractual limitation, and could not supply the missing Article 8(c) notice.

First-instance decision in the High Court (Commercial Court). No appellate history was stated in the judgment.