Air New Zealand Ltd v Disputes Tribunal [2016] NZHC 393
High Court of New Zealand
Facts
1 Mr and Mrs Green (not their real names) travelled to England on Air New Zealand in November 2015. It was autumn in England. They were to attend a significant event and related social functions at one of England’s oldest and most respected institutions. Appearances were going to be important and they no doubt wished to dress accordingly.
2 One of Mr and Mrs Green’s suitcases did not arrive with them at London. The day after their arrival, they were advised it was in Los Angeles. Despite frequent contact with Air New Zealand representatives in London, always initiated by Mr or Mrs Green rather than Air New Zealand, their luggage was not made available to them in London until some nine days after their arrival.
3 In the meantime, Mr and Mrs Green were told by Air New Zealand representatives that they could replace the items they were missing but that they should keep the receipts. Mrs Green said she specifically asked whether this meant they could replace the clothes they had lost on a like-for-like basis. She was told they could. Mr and Mrs Green spent over $26,000 on replacing the items they had lost. They recovered $1,900 from an insurer on a travel policy they had taken out. They brought a claim in the Disputes Tribunal for $15,000, the extent of the Tribunal’s jurisdiction, for costs they had been put to by reason of their baggage going astray.
4 The Greens’ claim in the Disputes Tribunal was accompanied by statements from Mr and Mrs Green which provided details of the dispute and their contact with Air New Zealand. Their account of what happened has been summarised above. The statement also recorded:
On receipt of our claim for £10,000 sterling approximately, Air NZ advised us that reimbursement was governed by the “Montreal Convention” and limited to NZ$2,125.90. This was the first time this convention had been made known to us.
Issue(s)
The Disputes Tribunal had held that Air New Zealand was estopped from raising the Montreal Convention of 1999 and the relevant limits of liability for baggage in Article 22(2) of that Convention. Could this decision of the Disputes Tribunal stand?
Discussion
From the judgment of Nation J:
65 I accept Mr Gedye’s submission that the Convention is intended to provide certainty for all those who are engaged in the aviation business within signatory countries where they accept their business will be governed by the terms of the Convention. Passengers and airlines travel between different jurisdictions where there may be differences in domestic law. Airlines will be represented or staffed by people in different countries, often not under the direct control of the principal airline concerned. Those who operate airlines and those who deal with them, including insurers, all benefit from having certainty as to the extent and circumstances in which an airline will be liable to its passengers for delays. It will create uncertainty if claims can be brought outside the limits provided for in the Convention.
66 There is the potential for some exceptions or variation and some uncertainty if carriers contract to have a liability greater than that provided for by the Convention. Nevertheless, the scope for that will be much less if the exceptions or variations can arise only by reason of a legal contract with all the essential elements of contract, including consideration and certainty. Moreover, the contracting parties will have control over whether they create an additional liability and the extent of that liability. By contrast, the circumstances in which a claim might arise by reason of an estoppel or otherwise in equity, and the extent of any such liability, are wide open and variable and potentially created by a judgment of the Court rather than conscious decisions of the parties.
Conclusion – error of law
67 I accordingly find the Disputes Tribunal made an error of law in holding Air New Zealand could be liable to Mr and Mrs Green by reason of an estoppel and in determining Air New Zealand has to pay a sum in excess of the limitations on liability in the Convention and Civil Aviation Act.
Useful for
No local law damages for baggage beyond the Convention limits
Waiver requires clear and unambiguous wording
Treaty provisions considered
Legislation considered
None identified.Key subjects or concepts
Baggage/ Exclusivity/ Waiver/Appeals history
No relevant appeals or appeal history identified for this case.Other case information
Lawyers or counsel before the High Court of New Zealand:Additional case references or citations:
[2016] 2 NZLR 713; (2016) 22 PRNZ 819.
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