Laroche v Spirit of Adventure (UK) Ltd

The Non-International Rules governing domestic carriage by air apply to a commercial hot-air balloon flight. A balloon may be an aircraft, and a person carried for leisure may still be a passenger carried for reward. Where the Rules apply, they provide the exclusive cause of action and remedy, excluding negligence and contractual claims under domestic law.

The two-year period under article 29 is a substantive prescription period which extinguishes the right of action. Article 29 does not permit suspension, interruption or extension, and domestic limitation provisions, restoration of a dissolved company, estoppel or waiver cannot alter that result.

The claimant was injured during a commercial hot-air balloon flight arranged by the defendant. The flight took place wholly within England and was purchased through a voucher. The defendant’s insurers initially indicated that liability was not disputed, but later relied on the Warsaw Convention regime and its two-year prescription period.

The court determined preliminary issues concerning whether the Carriage by Air Acts (Application of Provisions) Order 1967 applied, whether it supplied the exclusive remedy, whether the claim was brought in time, whether section 651 of the Companies Act 1985 could suspend time after dissolution, and whether estoppel or waiver prevented reliance on article 29.

1. Application of the Rules. The Non-International Rules applied to the flight. A hot-air balloon designed and regulated for carrying passengers was an “aircraft”. The claimant was being carried as a passenger, notwithstanding that the flight was for leisure and had no fixed destination. The voucher and agreed contract established carriage “for reward”.
2. Construction. The Rules were to be construed in the same manner as the Warsaw Convention. The court applied natural meaning, a purposive construction of the Convention as a whole, broad international principles of interpretation, relevant travaux préparatoires, subsequent practice and persuasive jurisprudence from other signatory jurisdictions.
3. Exclusivity. Articles 1, 17 and 24 established that the Rules governed the claim exclusively. They therefore ousted any alternative action in negligence or breach of contract under domestic law.
4. Prescription. Article 29 extinguished the right of action after two years. Article 29(2) left the lex fori only limited questions concerning calculation and procedural commencement. It did not confer a discretion to suspend, interrupt or extend the period. Section 39 of the Limitation Act 1980 reinforced the priority of the special prescription regime.
5. Dissolution, regulation and estoppel. Section 651 of the Companies Act 1985 could not assist because the primary period had expired before dissolution and the Rules contained no power to extend time. Council Regulation (EC) No 2027/97 did not apply, and the defendant was not a Community air carrier. Estoppel and waiver could not displace a mandatory statutory regime. In any event, there was no sufficient representation, reliance or communicated common assumption.
6. The answers to the preliminary issues were: yes; yes; no; no; and no. The claimant’s only available route was therefore time-barred.