Laroche v Spirit of Adventure (UK) Ltd

The Warsaw Convention framework, as applied domestically by Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967, is not confined merely because a flight is recreational. The court must construe “aircraft”, “carriage” and “passenger” by their ordinary meaning in the Convention’s purposive context. A passenger-carrying hot-air balloon is an aircraft where it is designed for and capable of international transport; it need not be a regular or obvious means of transport. Carriage does not require a destination agreed before take-off. A person remains a passenger where he contributes nothing to the flight and his predominant purpose is to be carried, even if the destination is unpredictable and the journey is for pleasure. The Schedule’s two-year time bar is substantive and exclusive: domestic law cannot suspend, interrupt or extend it.

The claimant was injured when a hot-air balloon operated by the respondent crashed. He brought claims in contract, negligence and breach of statutory duty more than two years after the accident. Eady J held that Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 applied, provided the exclusive cause of action and remedy, and extinguished the claim under article 29. The claim was dismissed.

On appeal, the claimant challenged the classification of the balloon as an aircraft, the existence of carriage and his status as a passenger. He also sought permission to appeal on whether the respondent’s voluntary liquidation suspended the two-year period. The central issues concerned the scope of Schedule 1 and the effect of article 29.

1. Disposition. The appeal was dismissed. Permission to appeal on the voluntary-liquidation ground was refused. Eady J was right to hold that Schedule 1 applied and that the claim was extinguished because proceedings were issued outside the two-year period.
2. Construction. Schedule 1 should be construed in a similar manner to the Convention. The natural and ordinary meaning of the words is the starting point, but the Convention’s purpose and international context must also be considered. Technical domestic rules do not control the interpretation.
3. Recreational purpose. The fact that a flight is recreational does not, by itself, exclude the Convention or Schedule 1. The purpose of the flight may assist in deciding whether there was carriage and whether a person was a passenger, but it is not independently determinative.
4. Aircraft. The ordinary meaning of “aircraft” includes a passenger-carrying hot-air balloon. The purposive construction supports that conclusion because hot-air balloons are capable of international transport. Their lack of regularity or obviousness as a means of international transport, and the recreational nature of the flight, were immaterial. The Air Navigation Order 2000 provided supporting legislative context because passenger-carrying balloons were subject to basic regulatory controls for public transport.
5. Carriage and passenger. Carriage does not require a contract of a particular type or prior agreement on the precise destination. A passenger is someone who does not contribute to the carriage of himself or others and whose predominant purpose is to be conveyed from one place to another. The claimant was passive, was not crew or a trainee, and was being carried from the starting point to wherever the balloon landed. An unpredictable destination did not prevent passenger status.
6. Article 29. Article 29 imposed a substantive, not merely procedural, time bar. Schedule 1 was an exclusive code, so domestic law could not suspend, interrupt or extend the two-year period. Article 29(2) left only the calculation of the relevant dates and whether proceedings were brought in time. The respondent’s voluntary liquidation therefore did not suspend the running of time.

Lord Justice Jacob and Lord Justice Mummery agreed with the judgment of Lord Justice Dyson.

1. Court of Appeal (Civil Division) — The appeal was dismissed and permission to appeal on the voluntary-liquidation issue was refused: [2009] EWCA Civ 12.
2. High Court, Queen’s Bench Division — Eady J held on 17 April 2008 that Schedule 1 applied, was exclusive, and extinguished the claim under article 29; the claim was dismissed.