Lulseged v British Airways Limited [2007] ZMSC 8
Supreme Court of Zambia
Facts
The facts, that are not disputed, are that the Respondents, a British Company, registered in the business of carrying passengers by air, as defined in the Carriage by Air Act.(11), sold a discounted fare ticket to the Appellant, who is a business woman of Lusaka and who was a frequent passenger of the Respondent, holding a Silver Card.
On or about 28th June, 2004, she purchased this discounted fare passenger ticket, reference No. 125-2309404325 at US$1,900, from the Respondent’s office at Holiday in, Lusaka. This ticket was Lusaka/ Johannesburg/Istanbul/London/New York and a return trip, New York/London/Lusaka. She successfully made her trip to New York where she purchased these items: one men’s suit, jewellery, associated rings, earrings, bracelets; neck chains, gold plated watches – men and women’s set and associated goods inter alia worthy U$6,000.00 (US Dollars). She was issued with a receipt for all these items. She, on route back boarded a British Airways flight No. 176/AB255 at JFK International Airport in New York. She checked in and registered four (4) suitcases and two hand luggage consignments. One of these suitcases contained these items purchased in New York, together with a receipt issued to her, on purchasing the items catalogued earlier. All these pieces of luggage were to be forwarded to Lusaka International Airport. The luggage was No. NA 23WHX. The Respondent accepted and took charge of this luggage. On arrival at Lusaka International Airport, the Appellant only received three suitcases and two hand luggage. The 4th suitcase, which contained the items purchased in New York, did not arrive. She reported this missing suitcase to the Respondent immediately and later on, after seven days, she reported in writing to the Respondent this missing suitcase. She made several visits to the Respondent’s office at Holliday Inn, in Lusaka, inquiring about the whereabouts of this missing suitcase. The Respondent’s office in Lusaka made several contacts with its counterpart offices in London, Heathrow Airport.
The Appellant’s story, which was disputed by the Respondent, is that during her visits to the Respondent’s office in Lusaka, one employee, by the name of Beauty, assured her that her suitcase had been found. Her case before the High Court is also that even the correspondence, between the Respondent’s office in Lusaka and its office in London, indicated that the missing bag was found. It was at terminal 1 RACK 3 at London Heathrow. She further testified that one of the Respondent’s employees called Beauty even called her to assure her that the missing suitcase was found and that she had to travel to London to physically check the contents of the missing bag. (See page 45 – 51 on the record). This luggage was never forwarded. The Appellant’s contention therefore was that, since the Respondent communicated to her that this luggage was found and that it would be forwarded to her, it was the Respondents recklessness which caused the suitcase to be lost and as such this conduct comes under the ambit of Article 25 of the Warsaw Convention as amendment by Article XIII of the Protocol as domesticated under the Carriage by Air Act Cap 447 (7) and not Article 22 of the Convention as amended by Article XI of the Protocol.
The Respondents’ case, before the High Court, was that the Appellant knew the conditions of her being a passenger on that flight and that these conditions were set out at the back of her ticket. One of these conditions was about the limitation of its liability, should any of her pieces of luggage go missing. Its case was that the language was lost and as such although liable, their liability was limited to only US$640 as per Article 22 of the Convention amended by Article XI of the Protocol.
The learned trial Judge found as a fact that: (1) the Appellant boarded the Respondent’s flight from New York to Lusaka and that upon the arrival at Lusaka, the Appellant discovered that one of her suitcases was missing; (2) that the ticket bought by the Appellant was subject to the conditions and limitations placed on it. Therefore, he concluded that Article 22 of the Convention as amended by Article XI of the Protocol applied, and as such although the Respondent was liable its liability was limited to US$20 per kilo on any lost baggage. As such the Appellant was only entitled to US$640 not US$6,000.00 as claimed. The Appellant, being aggrieved by this decision, has now appealed to this court.
Issue(s)
Before this court, the Appellant advanced two grounds of appeal. These are:
That the court below misdirected itself at Law by failing to take into account evidence that, the Appellant’s luggage was found by the Respondent: but the Respondent deliberately refused to hand over the same to the Appellant.
That the court below misdirected itself at Law by failing to give any reasons justifying any of his findings; particularly the finding that, the Appellant is only entitled to US$20.00 per kilo and/orUSD650.00 (sic).
Discussion
Given this scenario, we agree with Mr Wright that in line with the case of Cannaught Laboratories v. British Airways (5), and Article 20, failure by the Respondents to explain what actually happened to the missing bag, lead irresistibly to an adverse inference that more probable than not, this missing suitcase was stolen by an employee/agent of the Respondent or with the complicity of an employee of the Respondent. This inference would lead to another irresistible inference that, more probable than not the employee/ Argent of the Respondent stole this missing suitcase of the Appellant in course of or under the scope of his employment. This would lead to the conclusion that, such conduct meets the Article 25 test. To buttress this conclusion, we are equally persuaded to adopt the ratio in the Canadian case of Nuvo Electronics v. London Assurance(6) This matter in this case arose out of the loss of 15 cartons of integrated circuits valued at US1,403,000 and carried by air from San Francisco to Toronto. The shipment left San Francisco on August 10, 1996, and arrived at Toronto on the morning of August 11, 1996. It was then placed in the Air Canada cargo warehouse but was never seen again. The Plaintiff consignee commenced this action for the value of the lost cargo against its cargo underwriter and the air carrier. The air carrier defended the action arguing that the Plaintiff has not proven the value or the contents of the cargo, that it has delivered the goods to a courier for delivery to the Plaintiff and that it was, in any event, entitled to limit its liability pursuant to the Warsaw Convention. The only evidence adduced at trial as to the value and content of the shipment was the air waybill, the packing list and the commercial invoice. The carrier objected to the admission of these documents on the basis that they were hearsay and not properly admissible. The Court, however, held that these documents were admissible to prove the content and value of the shipment. The carrier’s second argument, that it has delivered the cargo to a courier, was also rejected by the Court. The Court found as a fact that although the courier driver had signed for the cargo he did not in fact receive the cargo as it would not be located by the air carrier. The Court next considered whether the air carrier would limit its liability under the Warsaw Convention and held that it could not. There were two reasons advanced by the Court for this decision. First, the Court found that the air waybill was not in conformity with Article 8 of the Convention in that it did not contain the name of the airport departure, the name of the first carrier, whether the weight was in pounds or kilograms and the nature and quantity of the goods. Relying upon American case law, the court held that if an air carrier fails to include the particulars required by Article 8 of the Convention in the air waybill then, pursuant to Article 9, the carrier is not entitled to limit liability. Secondly, (and this is the relevant consideration),) the court held that the Plaintiff had proven that it was more probable than not that the cargo was stolen by an employee of the carrier or with the complicity of an employee of the carrier and that there was an irresistible inference that such employee was in the course and scope of his employment when the theft occurred.
Accordingly, the Court held that there was “wilful misconduct” and that the carrier was not entitled to limit its liability. The Canadian court drew an inference of ‘wilful misconduct’ using a subjective test. Therefore it concluded that the carrier was not entitled to limit its liability. Therefore, relying on these authorities, the answer to the question whether or not the Appellant discharged the burden of establishing on a balance of probabilities that the Respondent’s conduct, was a wilful conduct, is in the affirmative. We hold that the evidence before the court created a strong prima facie case that the suitcase in question was found and it was to be forwarded to the Appellant. In the absence of any explanation by the Respondent, we hold therefore that, in line with O’Connor CJ’s dictum, already referred to at J22, the gist of which is that Article 25 can only apply when the claimant establish a fault on the part of the carrier, there was a fault on the part of the Respondent and/or its servants or agents. Article 22 which operate in normal circumstances, and which provide for limited recompense as the normal award to any passenger who has been injured or whose luggage has been lost or destroyed, does not apply in this case. Ngulube CJ (as he was then) in the case of AMI Zambia and Chibuye put it this way: “if on facts the Respondents would not have been exempted from their wrong doing by misconduct of their staff, then they can not plead the limitation clause”
We are therefore satisfied that the Learned trial Judge misdirected himself in drawing a conclusion which flew in the teeth of the all the evidence. We are of the view that the learned trial Judge failed to evaluate the evidence before him and that he failed to take advantage of observing the witnesses who were before him, because he gave no reasons for rejecting the evidence of the Appellant. Following the case Manal Investment Limited and Lamise Investment Limited(1), this court must then disturb the lower court’s findings. The appeal therefore succeeds. We quash the lower court’s conclusions. Because of this conclusion, we have drawn in the main appeal, the Cross Appeal is therefore dismissed. The costs follow the event.
Useful for
Baggage limits breakable for misconduct
