UK: Air Carrier Liability: Exclusivity Of Warsaw Regime

In this South African case, the Court was asked to consider whether the amended Warsaw Convention was a passenger’s exclusive cause of action against an air carrier. In September 2000, Mr Potgeiter and his male partner travelled on a BA flight from Cape Town to London. Approximately two hours prior to landing, the passengers were woken by the cabin staff whereupon Mr Potgeiter and his partner kissed each other good morning and hugged in a manner which he asserted would have been accepted between a heterosexual couple. The cabin staff asked Mr Potgeiter and his partner not to kiss each other as it was offensive to other passengers. Mr Potgeiter alleges that he was infuriated and hurt by the attitude of the cabin staff. An altercation ensued. It seems that Mr Potgeiter’s indignation was deemed to be disproportionate by the cabin staff as he was arrested upon arrival at Heathrow.

Upon his return to South Africa, Mr Potgeiter issued proceedings against BA both in contract and delict (negligence) alleging that his dignity was severely impaired and that he was humiliated by the conduct of BA’s cabin staff. He did not allege any physical harm. BA applied to have the elements of Mr Potgeiter’s claim which fell outside provisions of the amended Convention struck out.

Mr Justice Davis considered the leading authorities from the House of Lords (Sidhu -v- British Airways and Morris -v- KLM) as well as those from the US Supreme Court (Eastern Airlines -v- Floyd and El Al -v- Tseng) along with other authorities from the Canadian Court of Appeal for British Columbia, all of which held that the amended Convention is a passenger’s exclusive cause of action against an air carrier. He also considered the decision of the French Court de Cassation in the Mohammed -v- British Airways case (arising out of the same facts as Sidhu) which took the opposite view. On balance Mr Justice Davis was persuaded that the judgments of "…the highest courts in the United Kingdom and United States together with significant Canadian jurisprudence have provided careful analysis as to the interpretation of the Warsaw Convention which justifies its exhaustive scope".

Mr Potgeiter also contended that if his claim did not fall within the ambit of the provisions of Article 17 of the amended Convention which limited the carrier’s liability to death, wounding or other bodily injury, he would be left without a remedy for the damage which he alleged he had suffered. In the light of this Mr Justice Davis was asked to consider whether there was any constitutional impediment to interpreting the provisions of the amended Convention in a manner which would leave a plaintiff without a remedy. He concluded that there was none, noting that "...exclusion clauses are a feature of modern contract law and have found support even within the context of our constitutional jurisprudence." Moreover, he noted the benefits of uniform interpretation of international conventions citing the South African authority of Pan American Airways -v- S. A. Insurance which held "…if attainable without doing violence to the language of the Convention, uniformity is, in an international matter of this kind, manifestly desirable."

This appears to be the first time that the South African courts have been asked to consider the exclusivity of the Warsaw regime. Happily, the interpretation of the US Supreme Court and the House of Lords has been adopted, aligning South Africa with the majority of the common law jurisdictions. However, the carriage in question would now be subject to the provisions of the Montreal Convention the exclusive application of which has yet to be tested.