Impala Platinum Ltd. v Koninklijke Luchtvaart Maatschappij NV and Another (315/05) [2006] ZASCA 69; [2006] SCA 69 (RSA); 2008 (6) SA 606 (SCA) ; [2007] 1 All SA 545 (SCA) (30 May 2006)

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[2006] ZASCA 69
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Impala Platinum Ltd. v Koninklijke Luchtvaart Maatschappij NV and Another (315/05) [2006] ZASCA 69; [2006] SCA 69 (RSA); 2008 (6) SA 606 (SCA) ; [2007] 1 All SA 545 (SCA) (30 May 2006)

Links to summary

Case no: 315/05
In
the matter between:
IMPALA
PLATINUM LIMITED
Appellant
and
KONINKLIJKE
LUCHTVAART
First Respondent
MAATSCHAPPIJ
NV
NORTHWEST
AIRLINES INC
Second Respondent
_______________________________________________________
Coram
:
Howie
P, Farlam, Navsa, Cloete JJA et
Cachalia AJA
Date of hearing:
11
May 2006
Date
of delivery:
30 May 2006
Summary
: International
air carriage ─ lost cargo ─ title to sue in terms of Warsaw
Convention ─ essential character and purpose of
Convention
discussed ─ held that in cases of successive carriage Convention
entitled consignor or consignee to sue.
Neutral citation:
This judgment
may be referred to as
Impala Platinum v KLM
[2006] SCA 69
(RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] This appeal concerns the
application of The Convention for the Unification of Certain Rules to
International Carriage by Air (generally
referred to as the Warsaw
Convention), as ratified by s 2 of the Carriage by Air Act 17 of 1946
(as amended by Proclamation R294
of 1967). It is directed against a
judgment of Goldstein J in the Johannesburg High Court, in terms of
which he held that the appellant
company had no
locus standi
to
sue for the loss of cargo and consequently dismissed its claim and
ordered it to pay costs including the costs of two counsel.
[2] The background to the appeal,
derived in the main from the parties’ agreement in the court below
to separate an issue for determination
in terms of Rule 33(4) of the
Uniform Rules of Court, is set out hereafter.
[3] On 18 June 2001 the appellant
company (Implats), which has its principal place of business in
Houghton, Johannesburg, was, in
terms of two written agreements of
air carriage as set out in two properly completed waybills, the
consignor of two parcels containing
platinum sponge and thirteen
parcels containing palladium sponge. The carriage in terms of the
waybills constituted international
carriage within the meaning of
article 1(2) of the Warsaw Convention (the Convention). The consignee
of the aforesaid cargo was Johnson
Matthey Incorporated of
Westchester, Philadelphia, United States of America.
[4] On 18 June 2001 the cargo was to
be transported by air as follows:
(a)
From Johannesburg International Airport to Amsterdam, in the
Netherlands, by the first respondent, Koninklijke Luchtvaart
Maatschappij
NV (KLM), an Amsterdam company conducting business as an
international carrier styled as KLM Cargo at Johannesburg
International
Airport;
(b)
From Amsterdam to Minneapolis, USA by KLM;
(c)
From Minneapolis to Philadelphia USA by Northwest Airlines
Incorporated (Northwest), an American company conducting business in
Minnesota USA.
[5] KLM or Northwest failed to deliver
the platinum and one of the parcels of palladium. To date delivery
has not been effected.
[6] Insofar as the platinum was
concerned, it had, in fact, been sold to Delphi Automotive Systems
LLC in terms of a written precious
metals supply agreement dated
December 2000, which provided that the delivery would be ‘CIP
[carriage insurance paid] any
International Airport’. Payment was
made by Delphi on 3 July 2001. The loss of the platinum was
only reported to Implats
on 10 August 2001. Implats had, at
own expense, insured the cargo and on 29 October 2001 its
insurers paid Delphi
for the loss of the platinum.
[7] The palladium, on the other hand,
had been sold to Sumitomo Corporation Europe in accordance with a
written precious metals supply
agreement (also ‘CIP’) which
wrongly stipulated the place of delivery as Tokyo airport instead of
Philadelphia airport. The loss
of the palladium was determined prior
to payment by Sumitomo. The cargo had been insured at own expense by
Implats, which, after
submitting a claim, was indemnified by its
insurers.
[8] Implats sued KLM and Northwest
jointly and severally for payment of US$ 298 665-00 and US$ 155
116-00, being the alleged
value of the lost platinum and palladium
respectively. It is common cause that Implats suffered no financial
loss.
[9] The parties agreed, in terms of
Rule 33(4), to separate the issue of whether, on the facts referred
to earlier, Implats had
locus standi
in terms of the
Convention to sue for the value of the lost cargo
.
Following
an order in that regard Goldstein J, as stated above, decided the
matter against Implats. He held, after referring to this
court’s
decision in
Pan American Airways Incorporated v SA Fire and
Accident Insurance Co Ltd
1965 (3) SA 150
(A) (the
Panam
case), that the right afforded to sue for lost cargo vests in the
consignor or consignee
who has in fact
suffered loss and that
a nominal consignor or consignee who suffered no loss does not have
title to sue. The learned judge concluded
that as Implats had
suffered no loss it had no claim and consequently dismissed the
plaintiff’s claim in the terms set out in para
[1]. It is against
that decision that Implats appeals with the leave of the court below.
[10] In arriving at the conclusion
referred to in the preceding paragraph, Goldstein J relied on the
following dictum of Steyn CJ
from the
Panam
case (at 166C-D):
‘
[T]he
nominal consignor or consignee would not be able to sue because he
would have suffered no damages . . .’
With
respect, the learned judge erred in his reliance on that case as
being decisive of the question before him. In the
Panam
case
the question addressed was whether the respondent, an insurance
company that was the cessionary of a diamond merchant who had
dispatched a parcel that had been lost, allegedly negligently, had
locus standi.
The question in that case was thus whether, in
the circumstances of the case, someone other than a consignor or
consignee had a right
of action in terms of the Convention. It is a
very different question from the one the learned judge in the court
below was required
to address, namely, whether a named consignor had
standing to sue for loss of cargo even though it suffered no loss.
The statement
by Steyn CJ, on which Goldstein J relied, must be
understood in the light of what preceded it and be related to the
conclusion arrived
at. Steyn CJ dealt with the proposition by counsel
for the airline, that in terms of article 24 of the Convention, the
right to bring
any action for damages in respect of goods was limited
to consignors and consignees. He doubted the correctness of this
proposition
but, for the purposes of the case before him, was willing
to assume that a right of action in terms of the Convention was so
limited.
1
He went on to consider article 8 which requires that an air
consignment note should contain a statement that the carriage is
subject
to the rules relating to liability established by the
Convention. He related this requirement to the provisions of article
9 which
then read as follows:
‘
If
the carrier accepts goods without an air consignment note having been
made out, or if the air consignment note does not contain
all the
particulars set out in art 8(
a
) to (
i
) inclusive and
(
q
), the carrier shall not be entitled to avail himself of the
provisions of this Convention which exclude or limit his liability.’
2
He
reasoned that this meant that, where a consignment note did not
comply with article 8 (in the present case we are dealing with
a duly
completed and regular consignment note), a carrier’s liability was
not restricted to the consignor or consignee as provided
for in the
Convention. He thus concluded that, since a consignment note
complying with article 8 was a prerequisite for a carrier
to avoid
liability to persons other than a consignor or consignee, and
considering that the onus rested on the carrier in this regard,
the
plea disclosed no defence as it failed to allege that essential
fact.
3
En route to that conclusion the statement on which the court below
relied was made
en passant
.
[11] An examination of the written
argument by counsel in the
Panam
case reveals that the issue
of whether or not a nominal consignor or consignee (or put
differently, a consignor or consignee that
did not suffer loss) could
sue, was not addressed. None of the other three judgments in that
case dealt pertinently with that issue.
They refer to a consignor or
consignee in unqualified terms albeit with some indication that who
those persons are might need definition.
Seen in proper perspective
the judgment in the
Panam
case does not assist to resolve the
issue before us.
[12] Turning to the Convention itself
in order to answer the question posed, its terms should be viewed in
the context of its essential
character and purpose. A consideration
of relevant decisions in other countries is useful for a proper
appreciation of how the Convention
should be approached and applied.
[13] More
than thirty years have passed since the decision in
Panam
.
Since then there have been further developments in international
jurisprudence concerning the application of the Convention. The
cases
are not always harmonious but there are judgments which commend
themselves for their persuasiveness and their useful summary
of
developments since the Convention’s inception.
[14] We were referred to numerous
foreign cases and authorities in relation to the application of the
Convention involving the loss
of cargo or involving personal injury
during air transportation and which deal mainly with the question of
whether the right to sue
for loss extends beyond a consignor or
consignee, so described in the waybill. In none that we have been
referred to, or could find,
was the present problem addressed. That
is a significant aspect to which I will return in due course.
[15] The cases to which we were
referred, including the
Panam
matter,
reveal that, from
the earliest times, courts in different countries stressed the
desirability of attempting to attain uniformity in
relation to
international air transportation when the provisions of the
Convention were considered in relation to the issues they
were called
upon to address.
[16] In a recent decision in England,
namely,
Morris v KLM Royal Dutch Airlines, King v Bristow
Helicopters Ltd
[2002] UKHL 7
;
[2002] 2 All ER 565
(HL), Lord Hobhouse (para 146
at 610g-611a) considered the historical context in which the
Convention was set and described its essential
character and purpose:
The
historical context in which the Warsaw Convention of 1929 is set was
not only the emergent business of commercial international
carriage
by air of passengers and goods but also the framework of existing
international conventions and agreements covering carriage
by sea
which was at the time and was, for the following decades, to continue
to be the dominant means of international transport.
The Warsaw
Convention substantially incorporated the same scheme and the same
features as those earlier conventions. Thus there is
a recognition of
the basic contractual relationship pursuant to which the transport is
being performed and the requirement of the
compulsory application of
the internationally agreed terms to the contracts of carriage and the
compulsory inclusion of statements
to that effect into the
contractual documentation. . . .
It
provides uniformity and certainty; conflicts of laws problems are
avoided as far as possible; the incidents of where any accident
or
litigation may occur are sought to be removed as far as possible; the
negotiation and acceptance of the “ five freedoms” of
international air transport were facilitated.’
In
Sidhu and others v British Airways plc, Abnett (known as Sykes) v
British Airways plc
[1996] UKHL 5
;
[1997] 1 All ER 193
(HL) at 204d-e Lord Hope
stated:
‘
The
convention describes itself as a “Convention for the Unification of
Certain Rules relating to International Carriage by Air”.
The
phrase “Unification of Certain Rules” tells us . . . the aim of
the convention is to unify the rules to which it applies.
If this aim
is to be achieved, exceptions to these rules should not be permitted,
except where the convention itself provides for
them.’
Later,
at 204g-h:
‘
It
is clear from the content and structure of the convention that it is
a partial harmonisation only of the rules relating to international
carriage by air. That is sufficient to give content to the phrase
“Certain Rules”. I do not find in that phrase an indication
that,
in regard to the issues with which the convention does purport to
deal, its provisions were intended to be other than comprehensive.’
At
212d-e the following appears:
‘
I
believe that the answer to the question raised in the present case is
to be found in the objects and structure of the convention.
The
language used and the subject matter with which it deals demonstrate
that what was sought to be achieved was a uniform international
code,
which could be applied by the courts of all the High Contracting
Parties without reference to the rules of their own domestic
law. The
convention does not purport to deal with all matters relating to
contracts of international carriage by air. But in those
areas with
which it deals ─ and the liability of the carrier is one of them ─
the code is intended to be uniform and to be exclusive
also of any
resort to the rules of domestic law.’
[17] The dictum referred to at the end
of the preceding paragraph was cited with approval in
Morris
(at 611 b-c). Lord Hobhouse went further and said the following (at
611c-d):
‘
It
is not right to attempt to construe the words of the convention by
reference to the rules of any domestic law, English, American,
German
or even French. We know that those rules were and are not all
identical. The purpose of uniformity means that it is the duty
of the
national court to put to one side its views about its own law and
other countries’ laws. Quite apart from defeating uniformity,
such
a course can only lead to the complication of simple issues, the
inadequately informed investigation of other legal systems
and, most
importantly, to uncertainty.’
[18] In a case in the United States
Supreme Court ─
El Al Israel Airlines Limited v Tsui Yuan Tseng
(1999) 525 US 155
, USSC ─ a passenger claimed that she had
sustained psychosomatic injuries as a result of an intrusive body
search. It was accepted
that there was no bodily injury within the
meaning of that expression in the Convention but the passenger
contended that she was
not precluded from pursuing a separate action
for damages under domestic law. The court said the following (at para
6):
‘
To
allow passengers to pursue claims under local law in circumstances
when the Convention does not permit such recovery, could produce
several anomalies. Carriers might be exposed to unlimited liability
under diverse legal regimes but would be prevented in terms of
the
treaty from contracting out of such liability. Passengers injured
physically in an emergency landing, might be subject to the
liability
caps of the Convention, while those merely traumatized in the same
mishap would be free to sue outside of the Convention
for potentially
unlimited damages.’
The
court held that the Convention precluded a passenger from pursuing an
action for personal injury and damages under domestic law
when the
claim did not satisfy the conditions for liability under the
Convention.
[19] As in the
El Al
case the
aforesaid two decisions of the House of Lords dealt with claims
different from the claim before us.
[20] In the
Sidhu
case the
issue was
whether, in relation to injuries
sustained whilst in an airport terminal in Kuwait during the Iraqi
invasion of that country, passengers
could claim for damages from
the carrier transporting them from London to Malaysia via Kuwait. The
question to be addressed was stated
as follows (at 201j):
‘
So
the stark issue which is before us in this appeal is whether a
passenger who has sustained damage in the course of international
carriage by air due to the fault of the carrier, but who has no claim
against the carrier under art 17 of the convention, is without
remedy.’
As
can be deduced from what was stated earlier, the House of Lords took
the view that the Convention provides the exclusive cause
of action
and sole remedy for passengers and, since the claims were not within
the terms of the Convention, the claimants in
Sidhu
were held
to be without a remedy.
[21] In the
Morris
case, art 17
of the Convention was considered yet again and in particular the
expression ‘bodily injury’ as it appears therein.
It was held
that the expression did not cover a mental injury or illness which
lacked a physical cause and that, since the Convention
was the sole
basis on which claims could be advanced, the claimants were without a
remedy.
[22] In
Potgieter v British Airways
plc
[2005] ZAWCHC 5
;
2005 (3) SA 133
(C) the plaintiff and his male partner,
during a flight to London, had kissed and hugged each other.
According to the particulars
of claim flight attendants approached
them requesting them to desist from this behaviour as it offended
other passengers. The plaintiff
alleged that he was humiliated and
that his dignity was impaired. He claimed damages without alleging
any physical harm. Exception
was taken to the claim on the basis that
the Convention provided the exclusive cause of action to a passenger
who claimed for loss,
injury and damages sustained in the course of
or arising out of his international carriage. Davis J followed the
decisions in
Sidhu
,
Morris
and
El Al
and upheld
the exception.
[23] In
Western Digital Corp and
others v British Airways plc
[2001] 1 All ER 109
(CA), decided
after
Sidhu
but before
Morris
,
the Court of
Appeal, in dealing with a claim for lost cargo, had to consider
whether an owner of lost items who had not been named
as consignor or
consignee had
locus standi
to sue for loss in terms of the
Convention. The court held that although the Convention did not in
terms give specific rights to persons
such as owners (who were not
consignors or consignees) and, even though the nature and standard of
any liability on the part of a
carrier had to be decided in terms of
the Convention, title to sue fell to be determined by domestic law.
Consequently, owners and
others with recognisable interests were not
without remedy. The court was of the view that the decision in
Sidhu
did not
preclude this conclusion.
[24] In
Gatewhite Ltd and another v Iberia Lineas Aereas de España
SA
[1989] 1 All ER 944
(QB) (cited in
Western Digital
),
Gatehouse J, after referring to judicial decisions in a number of
countries (including United States of America
4
,
Guyana
5
,
Hong Kong
6
,
New Zealand
7
and South Africa
8
)
said the following (at 950d-g):
‘
In
my view the owner of goods damaged or lost by the carrier is entitled
to sue in his own name and there is nothing in the convention
which
deprives him of that right. As the convention does not expressly deal
with the position by excluding the owner’s right of
action (though
it could so easily have done so) the lex fori, as it seems to me, can
fill the gap. While bearing in mind the need
to guard against the
parochial view of the common lawyer, I see no good reason why the
civil lawyer’s approach to the construction
of the convention,
based on the importance of contract, should be of overriding
importance. The fact is that the convention is silent
where it could
easily have made simple and clear provisions excluding the rights of
the “real party in interest”, had that been
the framers’
intention.
It
would be a curious and unfortunate situation if the right to sue had
to depend on the ability and willingness of the consignee
alone to
take action against the carrier, when the consignee may be (and no
doubt frequently is) merely a customs clearing agent,
a forwarding
agent or the buyers’ bank. It would seem artificial in the extreme
to require a special contract in the air waybill
itself under art
15(2) to provide the goods owner with a remedy in such a normal
situation.’
The
latter part of this passage is a recurrent theme in a number of cases
which extended the right to sue beyond the consigner or
consignee
and, as will become apparent, is significant in addressing the issue
in this appeal.
[25] In
Sidhu
the correctness
of the approach of filling in the gaps in the Convention concerning
title to sue by resorting to the lex fori was
doubted but not
finally pronounced upon. The following
was stated (at 210 a-b) as regards
Gatewhite
:
‘
This
decision, however, does not sit easily with the idea that the object
of the convention, in the areas with which it deals, was
to provide
uniformity of application internationally.’
In
Sidhu,
the court noted (at 210b-c):
‘
[T]he
rule in civil law countries is that only a party to a contract of
carriage, or a principal for whom he was acting, is regarded
as the
appropriate plaintiff. In common law countries the proper plaintiff
is the owner of the goods, whose right to sue depends
on his interest
in the goods, not on the fact that he may also be a party to the
contract.’
The
court held the following view (at 210c-d):
‘
It
would seem to be more consistent with the purpose of the convention
to regard it as providing a uniform rule about who can sue
for goods
which are lost or damaged during carriage by air, with the result
that the owner who is not a party to the contract has
no right to sue
in his own name.’
[26] We are not called upon to decide
whether the position adopted in the
Gatewhite
case sits
happily alongside the decisions in
Sidhu
and
Morris
.
9
As will be demonstrated, the Convention caters for the facts of the
present case. The approach that, where the Convention specifically
deals with an issue it should be regarded as exhaustive and exclusive
of domestic law, is in line with the exigencies of modern day
international carriage by air and promotes uniformity and comity.
[27] Whilst the stated case is less
detailed and specific than might be ideal, it nevertheless is
sufficient to enable a decision
on the limited issue we are called
upon to decide. I turn to consider provisions of the Convention.
[28] Article 12 of the Convention
provides:
‘
(1)
Subject to his liability to carry out all his obligations under the
contract of carriage, the consignor has the right to dispose
of the
goods by withdrawing them at the aerodrome of departure or
destination, or by stopping them in the course of the journey on
any
landing, or by calling for them to be delivered at the place of
destination or in the course of the journey to a person other
than
the consignees named in the air consignment note, or by requiring
them to be returned to the aerodrome of departure. He must
not
exercise this right of disposition in such a way as to prejudice the
carrier or other consignors and he must repay any expenses
occasioned
by the exercise of this right.
(2) If it is impossible
to carry out the orders of the consignor the carrier must so inform
him forthwith.
(3)
If the carrier obeys the orders of the consignor for the disposition
of the goods without requiring the production of the part
of the air
consignment note delivered to the latter, he will be liable, without
prejudice to his right of recovery from the consignor,
for any damage
which may be caused thereby to any person who is lawfully in
possession of that part of the air consignment note.
(4)
The right conferred on the consignor ceases at the moment when that
of the consignee begins in accordance with Article 13. Nevertheless,
if the consignee declines to accept the consignment note or the
goods, or if he cannot be communicated with, the consignor resumes
his right of disposition.’
The rights of a consignor in this
article are rights of disposition, the precise ambit of which it is
unnecessary for present purposes
to investigate.
[29] Article 13 deals with the rights
of a consignee at the end of a journey:
‘
(1) Except in the
circumstances set out in the preceding Article, the consignee is
entitled, on arrival of the goods at the place
of destination, to
require the carrier to hand over to him the air consignment note and
to deliver the goods to him, on payment of
the charges due and on
complying with the conditions of carriage set out in the air
consignment note.
(2)
Unless it is otherwise agreed, it is the duty of the carrier to give
notice to the consignee as soon as the goods arrive.
(3) If the carrier admits
the loss of the goods, or if the goods have not arrived at the
expiration of seven days after the date on
which they ought to have
arrived, the consignee is entitled to put into force against the
carrier the rights which flow from the
contract of carriage.’
[30] Article 14 enables the consignor
and consignee to enforce the aforesaid rights either in their own
name, in their own interests,
or in the interests of others, provided
that they carry out their obligations in terms of the contract of
carriage.
[31] Article 18, without specifying
who has title to sue, states the following:
‘
(1) The carrier is
liable for damage sustained in the event of the destruction or loss
of, or of damage to, any registered luggage
or any goods, if the
occurrence which caused the damage so sustained took place during the
carriage by air.
(2)
The carriage by air within the meaning of the preceding paragraph
comprises the period during which the luggage or goods are in
charge
of the carrier, whether in an aerodrome or on board an aircraft, or,
in the case of a landing outside an aerodrome, in any
place
whatsoever.
(3) The period of the
carriage by air does not extend to any carriage by land, by sea or by
river performed outside an aerodrome.
If, however, such a carriage
takes place in the performance of a contract for carriage by air, for
the purpose of loading, delivery
or trans-shipment, any damage is
presumed, subject to proof to the contrary, to have been the result
of an event which took place
during the carriage by air.’
It is clear that the carrier’s
liability in the present case is liability of the kind envisaged by
this article.
[32] Article 24(1) provides:
‘
In the cases covered
by Articles 18 and 19 any action for damages, however founded, can
only be brought subject to the conditions
and limits set out in this
Convention.’
[33] Article 30 reads as follows:
‘
(1)
In the case of carriage to be performed by various successive
carriers and falling within the definition set out in the third
paragraph of Article 1, each carrier who accepts passengers, luggage
or goods is subject to the rules set out in this Convention,
and is
deemed to be one of the contracting parties to the contract of
carriage in so far as the contract deals with that part of
the
carriage which is performed under his supervision.
(2)
In the case of carriage of this nature, the passenger or his
representative can take action only against the carrier who performed
the carriage during which the accident or the delay occurred, save in
the case where, by express agreement, the first carrier has
assumed
liability for the whole journey.
(3)
As regards luggage or goods, the passenger or consignor will have a
right of action against the first carrier, and the passenger
or
consignee who is entitled to delivery will have a right of action
against the last carrier, and further, each may take action
against
the carrier who performed the carriage during which the destruction,
loss, damage or delay took place. These carriers will
be jointly and
severally liable to the passenger or to the consignor or consignee.’
This
article applies to the present case and on the face of it gives a
consignor the right to sue for loss.
[34] In
Giemulla/Schmid
Warsaw Convention
(2002) p 64, the authors
state what one would consider to be the obvious meaning of the
article:
‘
Thus, Article 30
clearly states who the entitled claimants are, albeit only in the
exceptional case of successive carriage. The consignor
and the
consignee of the cargo are expressly named as the entitled
claimants.’
The authors question whether there is
any good reason why the consignor and consignee’s rights should
apply
only
in the exceptional case of successive carriage and
not to ordinary carriage performed by one carrier. In the present
case we are
not concerned with that issue. The authors state the
following (p 65):
‘
Due
to the fact that, particularly in the carriage of cargo, forwarders
frequently function as contractual consignor or consignee
of cargo,
without being its actual owner, we
often
find the situation
that damage is not sustained by the person who is formally entitled
to claim.’
(Emphasis
added).
[35] In Philipson et al
Carriage by
Air
(2001) under the heading
Title to sue
(para 8.34 p
116), the following is stated:
‘
The
general rule at common law is that it is the owner of the cargo or
baggage that is entitled to sue for damage or loss; by contrast
in
civil law jurisdictions, it is generally only the parties to the
contract of carriage who have title.
Under the Convention, the
consignor or the consignee expressly has title to sue
. Where the
goods have already been sold, it is the consignee who has title to
sue and the consignor is considered to have acted as
the consignee’s
agent in arranging the contract for carriage.’
(Emphasis
added).
At para 8.34 (p 116) the authors
state:
‘
As
for the title of third parties to sue the carrier, a number of
foreign courts have come to the conclusion that the Convention gives
title
only
to the consignor or consignee and no others.’
(Emphasis
added).
The
authors then continue with the discussion of the
Western Digital
case and the approach of ‘filling in the gaps’.
[36] In Clarke
Contracts of
Carriage by Land and Air
(2004) (para 3.194 p 358) under the
heading
Entitlement to sue
the following is part of the
commentary on
article 30 of the Convention:
‘
Are
the consignee and the consignor, the only persons mentioned in
Article 30, the only persons entitled to sue in respect of lost
or
damaged cargo? The question arose in
Western Digital
, in which
the question was whether a claim could be brought by a cargo owner
not named in the waybill. In line with an earlier English
decision
[
Gatewhite
] an affirmative answer was given by the Court of
Appeal. A similar conclusion has been reached in New Zealand
[
Tasman
]. In certain other countries, however, the decisions
have been more restrictive [Court of Cassation and the
Panam
case].’
At para 3.195 the following appears:
‘
Article 30 is the only
provision . . . that addresses the question of entitlement to sue,
and then only in relation to successive
carriage.’
[37] In
The Liability Regime of the
International Air Carrier – A commentary on the present Warsaw
System
(1981), Dr René H Mankiewicz states the following
(para 209 p 177):
‘
The only persons
entitled to claim compensation for damage to, or loss, destruction or
delay of cargo are the persons designated as
consignor and consignee,
respectively, on the air waybill, and those persons who have
succeeded into their rights. . .
Persons who are not named
either as consignor or consignee in the air waybill have no standing
in an action for damages, for instance:
the buyer and ultimate
recipient of the cargo; the bank which had financed the sale of the
cargo and was to be notified of its arrival
at the place of
destination; the customs broker, the freight forwarder or agent of
the consignee. . .’
This
authority is dated and therefore does not include the more recent
decisions extending the right to sue in specific instances
beyond
consignors and consignees.
[38] As stated earlier, the decisions
to which we were referred including
Western Digital
,
Gatewhite
and those referred to in footnotes 4, 5, 6 and 7 were concerned with
extending the right to sue to persons
other than
consignors
and consignees. It appears to have been taken for granted that
consignors and consignees had, without more, title to sue.
The last
part of the
dictum
in the
Gatewhite
case, set out in
para [27] above, addressed the desirability of granting the right to
sue to others who have recognisable interests
so as to ensure that
persons such as true owners of lost cargo are not at the mercy of
persons such as clearing or forwarding agents.
[39] In the
Tasman Pulp
case,
10
the High Court of New Zealand, stated the following (at 235 lines
12-16):
‘
The truth of the
matter is that a right of action is expressly conferred on consignor
and consignee in certain circumstances for the
good and sufficient
reasons that consignors and consignees with no proprietary interests
could not, at common law, maintain any sort
of action against the
carrier. It does not at all follow that the right of the owner of the
goods is therefore abrogated.’
In the
Western Digital
case the
court (at 139-140) expressly approved the passage quoted in the
preceding paragraph.
[40] It is therefore evident that
textbook writers and courts have considered that consignors and
consignees are frequently nominally
involved and are entitled by the
Convention to sue in order to vindicate the rights of others who have
a recognisable interest in
the cargo.
[41] In cases in which carriers
resisted the extension of the right to sue beyond consignors and
consignees, they did so on the basis
that their liability should be
restricted to the persons whose names appear on the waybill because
this would lead to certainty as
these are the persons with whom they
have direct dealings. In the present appeal, no doubt further
emboldened by the basis on which
the matter was decided by the court
below, the carriers are contending that they should not be liable on
the previously preferred
basis.
[42] In my view, it is clear why there
is no case since the inception of the Warsaw Convention dealing with
whether or not a consignor
or consignee who in fact suffered no loss
has title to sue ─ the answer is that the right to sue is obvious,
not only because of
the clear wording of the Convention, but because
it is the basis on which the international air carriage industry
operates. In decisions
dealing with the extension of the right to sue
it was readily and correctly assumed to exist. To decide this matter
in favour of
the respondents would be to disregard the realities of
modern day international air carriage, would make no commercial sense
and
would offend against the need for uniformity.
[43] For the reasons stated it follows
that the court below should have decided the question of title in
favour of Implats. The following
order is made:
1. The
appeal is upheld with costs including the costs of two counsel.
2. The
order of the court below is set aside and for it is substituted the
following:
‘
1. It is held that the
plaintiff has title to sue.
2. The defendants are
ordered jointly and severally to pay the plaintiff’s costs incurred
in the determination of the issue referred
to in 1.’
_________________
M
S NAVSA
JUDGE
OF APPEAL
CONCUR:
HOWIE P
FARLAM JA
CLOETE JA
CACHALIA AJA
1
At
164A-G.
2
Article
9 has since the
Panam
case been amended.
3
At
167A-B.
4
Manhattan
Novelty Corp. v Seaboard & Western Airlines Inc.
137
N.Y.L.J. 6
(1957);
Parke Davis & Co. v B.O.A.C and Others,
170 N.Y.S. 2
d 385 (1958);
Pilgrim Apparel, Inc. v National
Union Fire Insurance Company and Others,
1960 U.S. and Can. Av.
Rep. 373.
5
Bart
v British West Indian Airways Ltd.,
[1967]
1 Lloyd’s Rep. 239.
6
Cordial
Manufacturing Co. Ltd. v Hong Kong – America Air Transport Ltd.
and Another
[1976] H.K.L.R.
555.
7
Tasman
Pulp and Paper Co. Ltd. v Brambles J.B. O’Loghlen Ltd.,
[1981] 2 N.Z.L.R. 225.
8
The
Panam
case.
9
See
Shawcross and Beaumont Air Law
(4
th
ed reissue)
vol 1 (Issue 102, December 2005) para VII (949) for a brief
discussion on the issue.
10
A
case that Gatehouse J in the
Gatewhite
case found most
persuasive.