| AIRCRAFT — Carriage by air — Accident — Hot-air balloon trip — Claimant suffering injury — Liability of carrier — Limitation of action — Air Navigation Order 2000 — Carriage by Air Act 1961 — Carriage by Air Acts (Application of Provisions) Order 1967 (SI 1967/480), Sch 1, art 29 — Companies Act 1985 s 651 — Limitation Act 1980 s 39 — Warsaw Convention of 1929 (as amended by the Warsaw-Hague Convention 1955 and Protocol No 4 of Montreal 1975)
Laroche v Spirit of Adventure (UK) Ltd [2008] EWHC 788 (QB); [2008] WLR (D) 118
Eady J: 17 April 2008
Any claim in respect of injuries sustained by the claimant in a hot-air balloon landing in England was governed by Sch 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 (“the Non-International Rules”) which provided the exclusive cause of action and sole remedy available to him in respect of his injuries, subject to the two-year prescription period provided by art 29 of that Schedule. Where the period had expired, s 651 of the Companies Act 1985 did not empower the court to direct that time should not count for the purposes of art 29, and, accordingly, a damages claim commenced after such expiry was time-barred.
Eady J so held when deciding preliminary issues in proceedings commenced in August 2006, in respect of injuries sustained in August 2003, against the defendant operator of the hot-air balloon flight. The defendant went into liquidation in June 2004. Initially the loss adjusters had not disputed liability, but when they changed their position in October 2005 steps were taken by the claimant to restore the defendant to the Register of Companies for the purpose of taking proceedings against it. A consent order to that effect was made in May 2006.
EADY J said that since the relevant flight took place within England, the provisions relating to international carriage of persons by aircraft had no direct application. However, the Non-International Rules, which applied to “all carriage by air” not being carriage to which the Warsaw Convention had application, were to be construed in a similar way to the corresponding provisions in the Convention. Where a claim was governed by the Convention it provided the only cause of action and remedy against the carrier. The same principle of exclusivity applied to claims within the scope of the Non-International Rules: see Fellowes v Clyde Helicopters Ltd [1997] AC 534. The carriage by the defendant of the claimant fell within the scope of those rules. In the light of Disley v Levine [2001] EWCA Civ 1087 and relevant provisions of the Air Navigation Order 2000, there appeared to be no logical basis for excluding a hot-air balloon from the classification of “aircraft”. The claimant was being carried as a passenger and the fact that there was no fixed destination or route was no reason to exclude the flight. Art 29 provided for a two-year limitation period. If no claim was brought within that period, the right of action was “extinguished”. Art 29 made no provision for suspension, interruption or extension of the two-year period. For the domestic court to apply a different prescription period or to exercise a discretion in favour of suspension, interruption or extension would run counter not only to the fundamental public policy considerations underlying the Warsaw Convention of achieving uniformity and certainty, but also to s 39 of the Limitation Act 1980 which provided that none of its provisions had any application where a period of limitation was prescribed by or under any other enactment. Art 29 should therefore be accorded priority. The power in s 651 of the Companies Act 1985 to direct that time should not count towards limitation periods could not be exercised after the expiry of a limitation period unless the limitation provisions themselves conferred power to extend time. The Non-International Rules contained no such powers. The operation of art 29 could not be overridden by recourse to the English doctrines of estoppel or waiver.
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