Noble Caledonia Ltd v Air Niugini Ltd

The Warsaw Convention provides a comprehensive and exclusive code for liability and jurisdiction in international carriage by air. Where it applies, domestic contractual remedies cannot be added to the remedies provided by the Convention. Article 28 jurisdiction depends on the carrier’s ordinary residence, principal place of business, an establishment through which the contract was made, or the place of destination. An agent’s activities will constitute such an establishment only where the facts satisfy the Convention’s wording. Courts should not adopt purposive constructions designed to cure perceived gaps or avoidance problems in a statutory international code.

The claimant tour operator arranged carriage for passengers on a flight from Singapore to Port Moresby operated by the defendant Papua New Guinea airline. The flight was unavailable in time for the passengers to join their cruise. The claimant pleaded breach of contract and sought to amend its claim to rely on article 19 of the Warsaw Convention, incorporated into English law by the Carriage by Air Act 1961.

The claimant applied for permission to serve the claim form outside the jurisdiction under CPR 6.36 and to amend its Particulars of Claim. The central issues were whether England and Wales had jurisdiction under article 28, whether the defendant’s agent in England was an establishment through which the contract had been made, and whether the claim could proceed as a domestic contractual claim.

1. The application for permission to serve out of the jurisdiction and the application to amend the Particulars of Claim were refused.

2. The Warsaw Convention is a complete and exclusive code in the fields it covers. Where it provides no remedy, domestic law cannot supply one. The Convention’s allocation of liability and jurisdiction reflects a balance between compensation, certainty and the carrier’s freedom to limit contractual exposure.

3. Article 28 is a self-contained jurisdictional code, not merely a provision concerning service. The relevant question was whether the defendant had an establishment through which the contract had been made. The court rejected the submission that the CPR 6.9 test should be materially different from the article 28 test.

4. On the findings made in the earlier judgment, the activities of the defendant’s English agent did not amount to an establishment within article 28. The United Kingdom therefore had no jurisdiction. The proper jurisdiction was Papua New Guinea, where the carrier was ordinarily resident or had its principal place of business.

5. The court regarded Berner v United Airlines as persuasive where the agency relationship involved extensive operational obligations and the contract was made through the agent. It declined to adopt the broader reasoning in Eck v United Arab Airlines, which sought to address a perceived problem of avoidance by considering what the Convention’s framers might have intended had they faced the present facts.

6. Because the carriage was governed by the Convention, a claim outside article 19 could not proceed as a breach of contract claim. The court made no determination on forum conveniens because article 28 was decisive.

The judgment refers to an earlier judgment handed down on 12 May 2017, which decided that service had not been effected on the defendant. This judgment determined the claimant’s applications for service out and amendment.