Western Digital Corporation & Ors v British Airways Plc [2000] EWCA Civ 153 (12 May 2000)
Facts
No summary of facts drafted yet for this case.Issue(s)
Whether the owner of goods could bring suit under the Convention despite not being a consignor or consignee on the relevant air waybill?
Discussion
I adopt the view, taken by other courts which have considered this problem, that there are, in this respect, strong considerations of commercial sense in favour of an interpretation which recognises and gives effect to the underlying contractual structure, save in so far this is positively inconsistent with the Warsaw and Guadalajara Conventions. These considerations were well expressed by Prichard J. in Tasman Pulp & Paper Co. v. Brambles [1981] 2 NZLR 225, 235:
“The effect is that the owner of goods is put completely in the hands of a nominal consignee who, for a variety of reasons, may be incapable of or averse to instituting proceedings against an airline. The consignee may be a customs agent or forwarding agent who is insolvent or in liquidation. Or the consignee may be a bank, the directors of which might well refuse to embark on costly litigation on behalf of a customer – even though that customer offered to indemnify the bank for costs. And, finally, however willing and able he may be, the action may not be one which the consignee is empowered to bring – his right to sue being limited to the rights conferred on him by Article 13.”
It may be, as I have indicated earlier in this judgment, that the last point made in this extract can be answered by both interpreting article 13(3) as a condition to loss (perte) claims and by extrapolating a general underlying intention to confer rights of suit for loss (perte) or damage (avarie) on the consignor or consignee, irrespective of their interest and of any actual damage which they may have sustained. There is still no reason to infer an equally general and unstated exclusion of any right of suit by any principal of the consignor or consignee who has really sustained the relevant damage.
Further, the points made in the first three sentences of the passage from Prichard J’s judgment are valid in any event. Litigation is a costly and committing affair, and the analysis urged by British Airways would require named consignors and consignees to be prepared to litigate against air carriers at peril of liability for costs, in matters in which they had no real interest. Prichard J’s observations can, I think, be further reinforced by the consideration that, if an airline can insist upon restricting its sights to the particular named consignor, consignee or person entitled, it would, presumably, follow that it can set off, in the liquidation of any such consignor, consignee or person entitled, debts which it may be owed (e.g. for freight unpaid) arising out of mutual dealings with that person quite unconnected with the present carriage, even though such debts would be incapable of set off because the carrier was on notice or had been given notice of the interests of the goods-owner really concerned: see Bowstead and Reynolds on Agency 16th Ed. Article 83 (and, regarding the civil law position, the concluding sentence of paragraph 1-018).
5) I am not persuaded to a contrary view by the argument that a carrier must know in advance by whom he will be sued. There is no requirement even to identify any consignor or consignee in any document of carriage. Actual carriers are under the Guadalajara Convention exposed to suits by persons unknown relying on agreements to which actual carrier was not party. After any loss, damage or delay, it will become clear who is claiming, and it seems to me that there may even be potential advantages on both sides, if those with the incentive and information to mount a claim are at least able to do so. On any view, however, the considerations favouring a conclusion that cargo-interests should be able to intervene and to sue for loss and damage as a principal on a contract evidenced by an air waybill issued to his shipping or customs agent appear to me considerably to outweigh any argument based on the supposed inconvenience or uncertainty that this might involve for air carriers.
6) It is no answer to the claimants’ submissions that, if the claimants had raised their alternative case in time, they might have succeeded in relying on the LEP air waybill as evidencing a contract for air carriage with LEP and in holding British Airways liable under the Guadalajara Convention accordingly. This was an alternative case which would be inapplicable if the claimants are right on their primary case. On their primary case, deriving from their analysis of LEP’s conditions and of the contractual position, the LEP air waybill does not evidence any contract for air carriage. Rather, it evidences an agency, and the issue is whether the claimants are entitled to assert LEP’s agency on their behalf in relation to the making of the contract for air carriage with Qantas. As I have indicated, nothing suggests that agency situations are uncommon in the consignment of goods by air and the fact that they have arisen for consideration in a number of prior cases indicates that they are not.
7) The interests of international uniformity no longer point towards a restriction of the right of suit to any named consignor, consignee or person entitled under article 12(1). The new magnetic pole of international jurisprudence draws quite strongly towards conclusions that there is no such general restriction in the Convention, and that, at least under systems which recognise the rights of unnamed or even undisclosed principals, there is nothing in the Conventions to prevent such principals of the named consignor or consignee intervening and suing (or being sued) in reliance on the relevant contract for carriage by air. As principals they will necessarily be subject to any limitations on suit which the Convention imposes on their consignor or consignee agents.
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Owner of cargo may sue carrier
