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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Fellowes or Herd v. Clyde Helicopters Ltd [1997] UKHL 6; [1997] AC 534; [1997] 1 All ER 775 (27th February, 1997)
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Cite as: [1997] AC 534, [1997] UKHL 6, [1997] 1 All ER 775

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Fellowes or Herd v. Clyde Helicopters Ltd [1997] UKHL 6; [1997] AC 534; [1997] 1 All ER 775 (27th February, 1997)

HOUSE OF LORDS

Lord Chancellor Lord Nicholls of Birkenhead Lord Hoffmann
Lord Hope of Craighead Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

FELLOWES OR HERD (A.P.) AND ANOTHER (A.P.)
(APPELLANTS)

v.

CLYDE HELICOPTERS LIMITED
(RESPONDENTS) (SCOTLAND)

ON 27 FEBRUARY 1997

LORD MACKAY OF CLASHFERN L.C.

My Lords,

My Lords, Sergeant Malcolm Herd was killed in a helicopter crash on 24 January 1990. The first appellant is his widow, suing as Guardian of their four children. The second appellant is Sergeant Herd's mother.

At the time of his death Sergeant Herd was a member of the Police Helicopter Unit of the Strathclyde Police Force. His duties were to carry out aerial surveillance and detection within Strathclyde. The helicopters used by the Helicopter Unit were supplied by the respondents, Clyde Helicopters Ltd., in terms of a contract between them and Strathclyde Regional Council as police authority for Strathclyde. On the date of his death Sergeant Herd and two colleagues were carrying out their duties on board one of these helicopters. During the flight a snow storm was encountered as a result of which the pilot, an employee of the respondents, became lost, an engine failure occurred and the helicopter collided with a block of flats on the south side of Glasgow, as a result of which Sergeant Herd sustained fatal injuries.

The appellants are suing the respondents for reparation in respect of the death of Sergeant Herd, basing their claim on allegations of common law negligence on the part of the respondents' pilot. The respondents maintain that the claim in respect of common law negligence is excluded by the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) and particularly the provisions of paragraphs 3 and 4 of and Schedule 1 to, that Order, and that their liability is confined to liability under that Order, which I shall refer to as "the Order."

The Lord Ordinary, Lord Milligan, gave judgment in favour of the respondents on this issue and on a reclaiming motion the Second Division of the Court of Session (Lord Justice Clerk, Lord Ross and Lord Morrison, Lord Murray dissenting), 1996 S.L.T. 976 adhered to the interlocutor of the Lord Ordinary. Against that judgment the appellants appeal to this House.

The history of the legislation of which the Order forms part is clearly described in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112 in the speech of Lord Bridge of Harwich, at pp. 1124F--1126C, and 1129A--1131H and in the speech of Lord Jauncey of Tullichettle, at pp. 1139G--1144E. I need not repeat it here except to say that I shall have occasion later to comment on a passage quoted in both of these speeches from Greene L.J., as he then was, in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74, which is also referred to by Lord Hope of Craighead in Sidhu v. British Airways Plc. [1997] 2 WLR 26, 36H. Like Lord Bridge of Harwich I shall refer to "the Warsaw rules" (Schedule 2 to the Order), "the Hague rules" (Schedule 1 to the Act of 1961, the Carriage by Air Act 1961) and "the United Kingdom rules" (Schedule 1 to the Order).

As history shows, the Order was made under powers conferred upon Her Majesty by Order in Council by section 10 of the Act of 1961

No submissions have been made in this appeal based upon the terms of the power to make the Order in Council and I turn immediately to the terms of that Order as they are said to apply in the present case.

By paragraph 3 the Order applies to all carriage by air, not being carriage to which the Hague rules apply. In terms of article 1(1) of Part I of Schedule 1 to the Act of 1961 the Hague rules apply to "all international of carriage persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking."

In terms of article 1(2) "for the purposes of" the Hague rules

a

b

International carriage is defined in Schedule 2 by paragraph 3(2) as follows:

In the present case the specification of the contract between the respondents and Strathclyde Regional Council contains the provision:

Accordingly it is clear that in general the aircraft would not be used beyond the boundaries of Strathclyde region and therefore outside the boundaries of the United Kingdom, and there is certainly no question of any arrangement in respect of the fatal flight that it should go outside the bounds of the Strathclyde region. No question therefore arises in the present case that the Hague rules could apply in the circumstances of the fatal flight, nor that it could involve international carriage as defined in Schedule 2 to the Order (the Warsaw rules). It follows that Schedule 1 to the Order has effect in law in respect of any carriage by air involved in the fatal flight.

Before proceeding to consider the application of the Schedule to the circumstances of this case it is necessary to set out some further facts. In terms of their contract the respondents were obliged to be prepared to carry such numbers of people and equipment as required by the Chief Constable or his authorised representatives as might reasonably be required for the operation of the contract. The contract required the respondents to provide a complete air support service to Strathclyde police over a five month period, the aircraft operating on a private operator basis, with the Chief Constable of Strathclyde Police or his authorised representatives as the responsible person, from whom the respondents would take all reasonable instruction. The aircraft were to operate from an operating base within a radius of 10 miles of Strathclyde Police Headquarters and the respondents were required to supply the aircraft for the exclusive use of Strathclyde police, during the period of the contract providing pilotage, all maintenance services, full ground facilities, including an operating base and hangerage, all fuel, insurance cover and such other facilities necessary for the performance of the contract. The contract contained a description of the aircraft required and provided that the following equipment considered essential for police operations was to be supplied by the respondents:

1. "Nitesun" or equivalent powered searchlight facility, capable of being operated by remote control within the cabin.

2. A night sight device.

3. A public address system, stabilised binoculars or night glasses.

Since the aircraft was to operate predominantly at low level, the respondents were also required to specify what method would be used to ensure that Civil Aviation minimum height conditions would be maintained. The aircraft were in addition required to be provided with facilities for the transportation of stretcher cases, with under-slung cargo lifting facilities, with navigation and instrumentation to appropriate standard to enable operation within the hours of darkness, with provision for police radio link and with flotation equipment, since Strathclyde region encompasses a number of islands. It was required that the aircraft livery was to be in police colours incorporating the lettering "Police" on the aircraft nose, sides and in large letters on the underside. The respondents were also required to provide a helicopter landing pad situated within 10 miles of Strathclyde Police Headquarters with office accommodation adjacent to the landing pad including refreshment facilities for crew members and support staff during standby periods, for a minimum of five persons at any one time. This suggests that the word "crew" in this context included police officers. The contract period was 150 consecutive days from the commencement of the contract, Strathclyde police guaranteed to undertake a minimum of 350 flying hours during that period, and the basic contract price was £198,000.

The duties of Sergeant Herd and his police colleagues while they were on board the helicopters, provided in pursuance of the contract, were to direct the surveillance operations on which the helicopters were engaged; to give the necessary instructions to the pilots; to inform the pilots of the manoeuvres which they wished them to carry out and generally to act as observers and to provide information to the pilots during the course of each flight. On the occasion of the fatal flight the respondents' pilot was Captain Graham Pryke, who was solely responsible for the flying of the helicopter and all decisions related thereto.

Although, as I have said, the contract itself provided that the respondents' aircraft would operate on a private basis, the respondents aver that the Civil Aviation Authority subsequently ruled that the contract amounted to a public transport commission and that all flights performed under and in terms of the contract should accordingly be deemed to be flights for the purposes of public transport. This allegation is not dealt with in the appellants' pleadings and in my opinion nothing turns upon it in the circumstances of this case.

Against this background of fact the case for the appellants is that the Order did not operate to limit the respondents' liability and, in particular, that it did not exclude the respondents' liability to the appellants at common law. In support of this submission they argue that the Regional Council contract was not a contract of carriage, that Sergeant Herd neither accepted nor consented to the terms of the Regional Council contract, that he was not on board the helicopter as a passenger and neither was he a party to any contract of carriage.

The respondents, on the other hand, maintain that the Order did apply to limit the liability of the respondents in respect of the death of Sergeant Herd and, in particular, that it excluded liability to the relatives of Sergeant Herd for negligence at common law. They argue that Sergeant Herd was being carried on the helicopter for reward with the agreement of the respondents, that he was a passenger, that the respondents had agreed to the carriage of Sergeant Herd on the helicopter, that he was there in pursuance of a contract between the police authority and the respondents which provided for the carriage of such a police officer and that he was a person whom the Chief Constable in the circumstances had required the respondents to carry in terms of the contract between the police authority and the respondents, and, in the discharge of his duties as a police officer under the direction of the Chief Constable, Sergeant Herd, they say, implicitly consented to such carriage.

Although a number of decisions of both the United Kingdom courts and of the courts of the United States of America, of Canada and of France were referred to in argument, none of them deals directly with the application of the Order to circumstances such as obtain in the present case and therefore I propose to consider the matter firstly by seeking to apply the relevant words of the Order to the circumstances of the present case and then to consider whether any of the decisions cited cast doubt on the validity of the conclusion thus reached.

Article 1 provides:

It appears to me clear that Sergeant Herd was being carried by the respondents' helicopter at the time of his death. Indeed in their written case on this appeal the appellants state at p. 15A:

That carriage was performed by the respondents in terms of the requirement to carry such numbers of people and equipment as required by the Chief Constable or his authorised representatives and that was a stipulation to be carried out, among others, in return for the sum contracted to be paid by the Regional Council to the respondents under the contract. I therefore conclude that the result of reading the words of this article in their ordinary meaning is that the Schedule applies to the carriage of Sergeant Herd on the fatal flight.

Article 17 provides:

In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger.

Article 22 states that (and it has been affected by subsequent modifications to the way in which the limitation of liability is calculated which are not relevant for our present consideration so that it is sufficient to say that it provides that) "In the carriage of persons the liability of the carrier for each passenger is limited. . . ." This appears to me to apply directly to liability for Sergeant Herd and for his death.

Article 24(2) provides:

This provision appears to me plainly to exclude any action for damages except in accordance with the conditions and limits set out in the Schedule, and accordingly effectively to limit the claims of the appellants to liability as provided for in article 17, leaving the distribution of the total amount available between the persons having right thereto in the proportions to be determined by the general law, in this case the law of Scotland.

Article 25 is not founded on in this case.

It appears to me that what I have said so far is sufficient to demonstrate that the result contended for by the respondents is correct, subject to consideration of any argument that would throw doubt on the validity of the construction which I have put upon the articles of the Schedule so far referred to. In particular, it does not appear to me that the application of the Schedule requires that Sergeant Herd should have been carried under a contract to which he was a party or under a contract of any particular type if he was being carried for reward.

Article 30(1) provides:

This article has no application to the circumstances of the present case but it is founded on as indicating that the Schedule proceeds on the assumption that there will be a contract of carriage if the Schedule applies. In my opinion this article can be given effect appropriately by saying that where a person is carried by an aircraft for reward or gratuitously by an aircraft being operated by an air transport undertaking there must be a contract, which is, for the purposes of article 30, the contract of carriage. I should also note in passing that article 31 clearly contemplates that stipulations with regard to carriage by air could be contained within a contract which deals with other matters, for example, for carriage partly by any other mode of carriage than by air. Equally, article 32 can in my view be explained in the same way as I have suggested as available in respect of article 30. The reference to contract of carriage in article 33 I think is of no particular significance. I should also point out that article 25A of the Schedule applies to servants or agents of the carrier who would not themselves generally, be parties to any contract of carriage. This is relevant to the question of whether the Order is to be considered as effective in law, providing general rules with regard to the liability of the carrier in respect of the contract of carriage, or as imposing on the contract statutory rules which the contracting parties are not entitled to agree to vary or contravene. Undoubtedly article 30 denies effect to clauses or special agreements entered into before the damage occurred by which the parties purpose to infringe the rules laid down by this Schedule, whether by deciding the law to be applied or by altering the rules as to jurisdiction, but in my opinion the general words of article 24 are naturally construed as having effect as general rules of law rather than merely as statutory contractual terms. This view is supported in my opinion by the terms of section 1(1) of the Carriage by Air Act 1961 itself, which provides that reading short the Hague rules shall

and in my opinion the opening words of section 10(1), which as I have said is the empowering section for the Order, empower the application of Schedule 1 to this Act together with any other provisions of this Act to carriage by air dealt with by the Order. It is I think therefore natural to take it that when this power is exercised it is so exercised in a way that relates to the rights and liabilities not only of parties to the contract but also to those of other persons affected by the ordinary meaning of the terms of the Order unless there is some express or implied limitation in the Order itself in respect of those to whom it applies.

Although in the passage cited from Greene L.J. in Grein v. Imperial Airways Ltd. [1937] K.B. 50, 74-77, by Lord Bridge of Harwich and Lord Jauncey of Tullichettle in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112, 1124, 1129, 1139, refers to the Convention provisions operating by imposing statutory terms upon contract of carriage, this aspect of the matter was not an issue in your Lordship's House in Holmes and, in the decision in Grein itself, Greene L.J. did in fact deal with the position of the relatives on the footing that it was covered by the terms of the Convention in the result.

As I have said, in the very well prepared and careful argument to which your Lordships were treated, a number of decisions were referred to. None of them dealt with the terms of the Order with which your Lordships are concerned in the present case. Insofar as they dealt with the Warsaw Convention either as originally agreed upon, or as modified at the Hague, they dealt with provisions very substantially different in important respects from those with which we are concerned in the Order. In particular, the ticketing provisions are fundamental in those Conventions to the limitation of liability, since the delivery of a ticket with the appropriate notice of limitation is generally essential to the application of the limitation provisions which involves a relationship between, for example, the passenger and the carrier which is not necessary in the Order.

The cases in the United States and Canada and all but two of the French decisions could be explained on the basis that if there is a relationship between the carrier and the person carried in addition to, or distinct from, the relationship of the person carried and the carrier, such as, for example, where the person being carried is an employee of the carrier with duties connected with the conduct of the flight, the liability under such relationship is not affected by limitations on the liabilities incurred as carrier.

I now turn to look at the decisions which have been relied upon from foreign courts in some more detail. The first is Block v. Compagnie Nationale Air France (1967) 386 F.2d. 323 which was a case in which the Atlanta Art Association arranged for a flight from the United States to France and to return, Air France being the operator of the plane in respect of which each passenger was issued with a ticket which referred to the Warsaw Convention liability limitation when it was held that the Warsaw Convention applied to it. In the majority judgment the United States Court of Appeals for the Fifth Circuit gave an account of the history of the Warsaw Conference and resulting Convention which is of interest and supplements to some extent the history to which I have already referred of the statutory provisions in this country given in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112. In particular, at p. 327, the court quoted an explanation given by Secretary of State Cordell Hull in transmitting the Warsaw Convention to the United States Senate in 1984 in these terms:

A good deal of the judgment was taken up with examining whether the Warsaw Convention could apply to charter flights and concluded that it could apply to some while it might not apply to others. The court said, at pp. 333-334:

That observation applies to the Warsaw Convention in the light of the ticketing provisions, but as I have already noted the ticketing provisions are absent from the Order which applies in the present case. At p. 334 the court said:

Accordingly, when one allows for the fact that the ticketing provisions of the Warsaw Convention are not included in the Order, there is nothing in this decision to cast doubt on the view which I have taken.

In Sulewski v. Federal Express Corporation (1991) 23 Avi. 17,685, a decision of the United States Court of Appeal for the Second Circuit, the deceased was a mechanic held to be travelling not as a passenger but as an employee of the air carrier and accordingly the court held that the limitations did not apply to him.

In Mertens v. Flying Tiger Line Inc. (1965) 341 F.2d 851 the Warsaw Convention was held not to apply since the ticket contained only an unreadable notice of limitation and it was not delivered to the passenger until after he had boarded the aircraft. In Warren v. Flying Tiger Line Inc. (1965) 352 F.2d. 494 it was again held that the Warsaw Convention did not apply as the ticket had not been timously delivered. The decision in In re Mexico City Aircrash of 31 October 1979 (1983) 17 Avi. 18,387 turned on whether or not the persons being carried were being carried merely as passengers of the airline or in their capacity as employees of the airline. Without examining the decision in detail I think it is sufficient to say that the question whether or not the Warsaw Convention applied was decided to depend on whether or not the person carried was an employee of the carrier and travelling in that capacity, in which case the Warsaw Convention would not apply whereas though an employee, the person being carried was being carried truly as a passenger with no responsibility in connection with the operation of the flight and without being obliged to travel as an employee on that particular flight, the Convention would apply.

I turn now to Sté Mutuelle d'Assurance Aériennes v. Gauvain (1967) 21 R.F.D.A. 436, a French decision on the domestic law of France which is quite different from the Order with which this case is concerned. In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention insofar as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event. This case was followed in Canada in Johnson Estate v. Pischke (1989) 1 S. & B. Av. R. 337. Aéro-Club de l'Aisne v. Klopotowska (1970) 24 R.F.D.A. 195 was in respect of a test flight which certainly involved obligations distinct from that of mere carriage between a person on the aircraft and the Club operating the aircraft. Ortet v. Georges (1976) 30 R.F.D.A. 490 was concerned with an aerial survey for which the instructions were contained in a verbal arrangement not at all detailed and which certainly did not specifically provide for carriage and in which the arrangements for remuneration are not detailed. Barnes v. Service Aérien Français (1993) 47 R.F.D.A. 343 was a case of rescue in which it appears clear that the private helicopters of the Public Limited Company Service Aérien Français, whose work involved the provision of aid to persons in difficulty, were placed at the disposal of the state financed civilian rescue organisation as rescue means to be used in the event of an accident occurring on the ski slopes, and that no remuneration was provided for in favour of the Company Service Aérien Français for any of its operations, not even for those of its pilots and assistants. Finally, in Cie U.T.A. v. Fichou (1983) 38 R.F.D.A. 444 there was clearly a contract of employment between the carrier and the person injured.

This brief examination of the authorities that were referred to in my opinion gives no occasion to alter the view which I have formed on the basis of applying the words of the Order to the circumstances of the present case where there was no arrangement of any kind between Sergeant Herd and the respondents except that of a person carried to the carrier. I also agree with my noble and learned friend, Lord Hope of Craighead that the other considerations with which he has dealt fully do not require an alteration of the view which I had formed.

I also agree with him that it is appropriate to deal with the legal aid situation in the manner he has proposed.

I am therefore of the opinion that this appeal should be refused, that the appellants should be found liable as assisted persons to the respondents in the costs of this appeal, that their liability should be modified to nil and that the Scottish Legal Aid Board should be found liable to the respondents, subject to this being intimated to them and their having an opportunity to respond, in the costs of the respondents in this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. For the reasons he gives, with which I agree, I would dismiss this appeal.

LORD HOFFMANN

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. For the reasons he has given, I too would dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

The question in this appeal is whether the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) applies so as to regulate the liability of the carrier, where a police officer who was on board an air support unit helicopter sustained fatal injuries when it was being operated by the respondents under a contract with Strathclyde Regional Council as the police authority. It is not disputed that, if the Order applies, the provisions of Schedule 1 to the Order provide the exclusive cause of action and sole remedy for the appellants, who claim damages from the respondents for the loss which they have sustained as a result of the death of the police officer.

I do not think that this question gives rise to any real difficulty on the facts of this case if their ordinary meaning is to be given to the words used in the Order and in the relevant articles of the Schedule. Paragraph 3 of the Order states that the Order is to apply to all carriage by air, not being carriage to which the amended Convention (that is, the Convention concerning international carriage by air known as "the Warsaw Convention as amended at the Hague, 1955") applies. Article 1 of Schedule 1 states that the Schedule applies to all carriage of persons, baggage or cargo performed by aircraft for reward. Article 17 states that the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Sergeant Herd was being carried by air in the helicopter when it crashed, and the carriage was being performed for reward by the respondents under their contract with the police authority. It is not suggested that the surveillance and detection duties on which Sergeant Herd was engaged at the time involved him at any stage in the handling of the helicopter. It is a matter of admission that the flying of the helicopter was a matter for which the pilot, Captain Pryke, was solely responsible. Although Sergeant Herd was on board the helicopter in the course of his duties as a police officer, he was there merely as a passenger so far as the performance of the contract of carriage for reward was concerned. There is no suggestion that he was travelling on a route from one place to another which had been pre-determined by the contract with the carrier before the helicopter became airborne. The contract between the respondents and the police authority was one by which the helicopter was made available to the police authority under what was in effect a time charter. It appears that its primary function was to enable police officers to carry out police operations while the helicopter was in the air. But the terms of the order and the relevant articles of the Schedule are so widely expressed that these features of the present case, which distinguish it from the ordinary case where a contract of carriage is entered into for the transportation of a passenger on a route which has been pre-determined, are not sufficient to prevent the application of the rules as set out in the Schedule to the liability of the respondents to Sergeant Herd's relatives for the consequences of his death.

The point which has caused me difficulty is whether the Order and the relevant articles can properly be given such wide meaning, in view of the context in which the Order was made and the extent of the power which was being exercised. The Order was made under section 10 of the Carriage by Air Act 1961 and section 5(2) of the Carriage by Air (Supplementary Provisions) Act 1962. The Act of 1962 gave force of law in the United Kingdom to the Convention which was adopted at Guadalajara, Mexico on 18 September 1961 which was supplementary to the Warsaw Convention of 12 October 1929 as amended at the Hague on 28 September 1955. We are not concerned here with the Act of 1962. In the present case it is the Warsaw Convention concerning international carriage by air as amended at the Hague, to which force of law was given by the Act of 1961, which provides the relevant background. The long title to the Act of 1961 states that it is an Act to give effect to that Convention and to enable the rules contained in it to be applied, with or without modification, in other cases and, in particular, to non-international carriage by air. Section 10(1) of the Act of 1961 provides:

In Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112 it was held that the Order of 1967 could have no wider scope and effect than was clearly authorised by the enabling power conferred by section 10(1) of the Act of 1961. The question which arose for decision in that case was whether the Act of 1961 and the Order of 1967 were intended by Parliament to apply to an air accident in Bangladesh on an internal domestic flight which was not governed by any international convention. The language and structure of the Order was wide enough to have that effect, but it was held that the power in section 10(1) had to be construed subject to the presumption that Parliament was not to be taken, by the use of general words, to legislate in the affairs of foreign nationals who did nothing to bring themselves within its jurisdiction. Lord Bridge of Harwich said, at p. 1126F:

In the present case the presumption against extra-territorial legislation is not in issue, as the accident occurred in the United Kingdom when the police officer was engaged on duties within the area of his police authority. But it is plain both from the long title to the Act of 1961 and from the wording of section 10 that the enabling power was given so that a modified version of the Convention might be enacted to provide a set of rules governing all carriage by air not falling within the definition of "international carriage" to which the Convention applies. As Lord Bridge pointed out, at p. 1126FB-C, there are thus now three sets of rules in the law of the United Kingdom and other British territory which govern different categories of carriage by air. These are the Hague rules in Schedule 1 to the Act of 1961, the Warsaw Rules in Schedule 2 to the Order of 1967 and the United Kingdom rules in Schedule 1 to the Order of 1967.

In regard to the general character and purpose of the Warsaw and The Hague rules, which are authorised to be applied by Order in Council to non-Convention carriage by air with or without exceptions, adaptions and modifications, he said that the rules have these features in common, at p. 1129F:

Lord Bridge then quoted from Greene L.J.'s judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-77, where the philosophy underlying the Warsaw Convention is described. In the course of this part of his judgment, at p. 74, Greene L.J. said that, when by the appropriate machinery, the rules are given the force of law in the territory of a High Contracting Party they govern the contractual relations of the parties to the contract of which, to use language appropriate to the legal systems of the United Kingdom, they become statutory terms. Lord Bridge then said, at p. 1131F:

I think that it is reasonably clear from these passages that what both Lord Bridge and Greene L.J. had in mind when they were describing carriage by air in this context was carriage in pursuance of a contract in which, according to the agreement with the parties, there was a place of departure and a place of destination and, where appropriate, an agreed stopping place. That indeed is the way in which the expression "international carriage" is defined for the purposes of the Hague rules in article 1(2) of Schedule 1 to the Act of 1961. The references to passenger tickets and other documents of carriage in chapter II of these rules support this approach. The definition in article 1(2) of Schedule 1 to the Act of 1961 has been omitted from the United Kingdom rules in Schedule 1 to the Order of 1967, as also have the provisions of chapter II in regard to documents of carriage. But other provisions in the rules which refer to a contract of carriage have been retained: see article 30(1), article 31(2) and article 32. And the potential categories of non-Convention carriage which Lord Bridge identified were all described by him with reference to the places of departure and destination and any agreed stopping place.

Two of these categories were appropriate subjects of United Kingdom legislation, as the places were all within the United Kingdom or other British territory or involved a place of departure or destination or an agreed stopping place there as well as a place in the territory of a foreign state. Two of them were not, as the places were all in foreign states or within the territory of a single foreign state. Lord Bridge mentioned, at p. 1132FB, with approval the submission for the respondents that, like the Conventions themselves, the United Kingdom rules had as one of their primary objectives the elimination of conflict of laws problems and that such problems would be as likely to arise, if not excluded by uniform rules, from non-Convention as from Convention carriage. At p. 1132F he emphasised again the obvious desirability, in relation to carriage in category (2), as in relation to "international carriage" within the Convention definition, of uniform rules applicable by British courts for the avoidance of the kind of conflict of laws problems discussed by Greene L.J. in the passage from his judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50, 74-77, which he had quoted. The concept of a contract of carriage in which the places of departure and destination and any agreed stopping place were agreed between the parties before the passenger embarked on the aircraft runs right through the whole of his discussion of the purpose and effect of these rules.

The aspects of this case which I have found most troublesome are (1) that there was here no contract between Sergeant Herd and the respondents in regard to which the rules in Schedule 1 of the Order of 1967 could be said to have become statutory terms, and (2) that the contract between the respondents and the police authority in pursuance of which he was a passenger on the helicopter did not provide for a place of departure or destination or any agreed stopping places. The hours of operation of the helicopter and the places to which it was to fly were left open, to be determined by police operational requirements. The helicopter was available to be used for whatever purposes these requirements made necessary. These might involve a journey from one place to another, or a journey in which a round trip was undertaken to provide support to police operations from the air before returning to the place of origin. A description of the categories of carriage by air by reference to the way in which passengers are normally carried by airline operators is wholly inappropriate for the kind of carriage by air which was involved in this case, where the helicopter was made available to the police authority as a means of conducting police operations from the air.

As I mentioned in Sidhu v. British Airways Plc. [1997] 2 WLR 26, 36D under reference to the discussion of this point in Fothergill v. Monarch Airlines Ltd. [1981] AC 251, it is now well established that a purposive approach should be taken to the interpretation of international conventions which have the force of law in this country. If the United Kingdom rules had been designed to deal exclusively with carriage performed within the United Kingdom, there might have been no need to follow this approach in the interpretation of the United Kingdom rules which were derived from the Conventions. But the same rules apply also to non-Convention carriage involving a place of departure or destination or an agreed stopping place in a foreign state and a place of departure or destination or an agreed stopping place in the United Kingdom or other British territory, in order to eliminate the same kind of conflict of laws problems as between these two states as those which gave rise to the Conventions. Schedule 1 to the Order of 1967 was not made in order to give effect to any treaty obligations of the United Kingdom, but uniformity of interpretation is nevertheless important. All those who are involved in carriage by air, whether as carriers or as passengers, and their insurers should be able to assume that the same law applies no matter where the event occurs or where the forum is for the dispute: Grein v. Imperial Airways Ltd., per Greene L.J. [1937] 1 K.B. 50, 74-75. In this situation I think that it is appropriate to have regard to the purpose and subject matter of the Conventions and to decisions of foreign courts in regard to the Conventions in order to resolve the issue whether the phrase "carriage by air" in article 1 of Schedule 1 to the Order of 1967 is wide enough to involve the circumstances in which Sergeant Herd was being carried by the helicopter when it crashed and he was killed.

So far as the purpose and subject matter of the Conventions is concerned, the question is whether there is anything in them which is in conflict with the respondent's argument that a wide construction should be given to these words in the United Kingdom rules. Having had the benefit of studying the minutes of the Second International Conference on Private Aeronautical Law, 4 to 12 October 1929 at Warsaw in the course of the argument in Sidhu v. British Airways Plc. [1997] 2 WLR 26, 36, I do not believe that there is any such conflict. The discussion at the Warsaw Convention was of course concerned only with international carriage by air. There was no need for any agreement as to carriage performed within the territory of one state, as in that situation there was not likely to be any difficulty about the law which was applicable. The whole discussion took place also in the context of what was known at that time about the uses to which aircraft could be put. It was understandable, and probably inevitable, that that discussion should have been carried on with reference to the practice of the airline industry at that time, by which aircraft were increasingly coming to be used as a means of transporting people and goods from one place to another under contracts of carriage with a variety of provisions about liability, limitation of liability, time limits and jurisdiction. The Warsaw Convention did not purport to deal with all matters relating to contracts of international carriage by air. But it is clear that what was sought to be achieved was a uniform international code which could be applied to all such contracts. One of the objects of the Convention was to encourage the development of the airline industry, which it was felt might be unduly inhibited by the increasing legal complexity of conducting a business of that kind across international frontiers. The aim was to reduce the opportunity for litigation and to provide a more definite and equitable basis on which airline operators could negotiate rates with their insurers.

The terms of the Convention seem to me to support this approach. Article 1(1) of the Warsaw Convention, which was repeated without amendment in the Hague Convention, states that it applies to "all" international carriage of persons, baggage or cargo performed by aircraft for reward, and "equally" to gratuitous carriage by aircraft performed by an air transport undertaking. There are some express exclusions, such as in respect of domestic carriage in view of the definition of international carriage in article 1(2) and in respect of mail and postal packages in article 2(2) --neither of which apply to the rules in Schedule 1 to the Order of 1967. But the starting point is the generality of effect indicated by the use of the word "all." The nationality or place of business of the carrier is irrelevant, as all carriers who undertake international carriage, as defined in article 1(2), of passengers, baggage or cargo by aircraft are bound by the Convention. There is nothing in the Convention to indicate that the purpose for which the passenger, baggage or cargo was on the aircraft has any bearing on the question whether the Convention applies.

In my opinion the Convention agreed at Warsaw, as amended at the Hague, was intended to be, and is, capable of accommodating changes in the practice of airlines and aircraft operators with regard to the purposes of which aircraft are used to carry people and goods, and in the contractual arrangements in pursuance of which people and goods are carried by air for reward. For this reason I think that it is proper to read Lord Bridge's discussion in Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112 and Greene L.J.'s judgment in Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50 from which he quoted as having been framed with reference to the particular subject matter with which they were dealing at the time. In each of these cases the subject matter was carriage by air of the ordinary kind in pursuance of a contract between the airline and the passenger by which places of departure and destination had been agreed. It seems to me, that when regard is had to the desire to lay down a uniform international code which would achieve equity between the carrier and the user of his services, there is no necessary conflict between what they said in these cases and the wider interpretation of the phrase "carriage by air" for which the respondents contend in this case.

As for decisions in the foreign courts, we were referred to several French cases which appeared to indicate that the view has been taken consistently in the French courts that it is necessary to consider the purpose for which the passenger is being carried on the aircraft, and that where this is to go to work either on or from the aircraft while it is airborne this is not for the purpose of transport within the meaning of the Convention. In Sté Mutuelle d'Assurance Aériennes v. Gauvain (1967) 21 R.F.D.A. 436, it was held by the Cour de Cassation that the law of 2 March 1957 by which the rules of the Warsaw Convention were applied to domestic air transport within France did not apply to regulate the liability of the air carrier for the death of a student pilot while undergoing a flying lesson. In Aéro-Club de l'Aisne v. Klopotowska (1970) 24 R.F.D.A. 195 the accident occurred during a test flight, which did not have the purpose of carrying people or goods from one point to another according to the definition of air transport in article 113 of the Civil Aviation Code, so it was held by the Cour de Cassation that the law of 2 March 1957 did not apply. In Ortet v. Georges (1976) 30 R.F.D.A. 490, the aircraft had been leased for the taking of aerial photographs and it was held by the Cour d'Appel de Paris that the flight did not have the character of air transport. The same approach was taken in Barnes v. Service Aérien Français (1993) 47 R.F.D.A. 343, where a helicopter was being used to airlift a man who had suffered a skiing accident to hospital and the Cour d'Appel de Paris held that the provisions of the Warsaw Convention as applied by Law 321.3 of the Civil Aviation Code did not apply.

These decisions all support the argument which Mr. Jones presented with great skill on behalf of the appellants that Sergeant Herd was on board the helicopter not in pursuance of a contract of carriage but in pursuance of his duties as a police officer. But we were shown a commentary on the decision in Aéro-Club de l'Aisne v. Klopotowska, 24 R.F.D.A. 195, which suggests that opinion in France was divided on this point, and that some decisions in the French courts had taken the view that the law of 2 March 1957 was of general application to all cases where there is air transport. In any event the fact that the jurisprudence in one country has adopted an interpretation of the Convention which supports Mr. Jones's argument is not in itself a compelling reason for holding that we should follow the same approach in our interpretation of article 1 of Schedule 1 to the Order of 1967. As in Sidhu v. British Airways Plc. [1997] 2 WLR 26, 45G, where it was observed that the United States from which a number of decisions were cited in that case was only one jurisdiction amongst many, the same point can be made about cases cited from the French courts. It cannot be assumed that the view which appears to have been formed in France is the same as that which would be taken in other countries which are party to the Conventions.

The only other jurisdictions from which decisions were cited to us were Canada and the United States. In the Canadian case, Johnson Estate v. Pischke (1989) 1 S. & B. Av. R. 337 it was held that a trainee pilot who had been at the controls of an aircraft engaged on an international flight was not a passenger for the purposes of the Warsaw Convention. That case however was concerned with the meaning to be given to the word "passenger," not with the question what was meant by "carriage by air" for the purposes of the Convention. Halvorson J. said, at p. 342, that he had drawn support for his conclusion from the decision in Sté Mutuelle d'Assurance Aériennes v. Gauvain, 21 R.F.D.A. 436, but he made it clear that he preferred to base his decision on the meaning of "passenger" and not on the question whether the flight was the type of flight which was governed by the Convention. None of the United States cases, all of which were decisions in the Federal Courts on appeal, except Block v. Compagnie Nationale Air France (1967) 386 F.2d. 323, was concerned with that issue. In In re Mexico City Aircrash of 31 October 1979 (1983) 17 Avi. 18,387, in which the person killed was a flight attendant who although employed by the airline was not working on the flight as she was travelling from her home to Mexico City where she was to work as a flight attendant on another flight, and Sulewski v. Federal Express (1991) 23 Avi. 17,685, in which the person killed was an aircraft mechanic who had been assigned to the flight by the airline, the question was whether these persons were on the aircraft at the time of the accident as passengers. Mertens v. Flying Tiger Line Inc., (1965) 341 F.2d. 851 and Warren v. Flying Tiger Line (1965) 352 F.2d. 494 were both concerned with the requirement for a ticket to be provided to the passenger before boarding the aircraft for an international flight subject to the Convention.

Block v. Compagnie Nationale Air France was concerned with the question whether the Warsaw Convention applied to a voyage charter by which an aircraft had been chartered to carry passengers on an international flight. The charter had been negotiated by a third party on behalf of the passengers. The case is of interest because of the opinion which was expressed by Judge Wisdom, 386 F.2d 323, 330 that the charter flight could not come within article 1(2) of the Convention if the places of departure, stopping places and destination of the flight were not stated in the charter and that the application of the Convention is premised upon a contract of carriage that arises from the relationship between a carrier and the passengers. At p. 334 he said that for a flight to come within the scope of the Warsaw Convention the carrier must have agreed to carry the passenger and that both the carrier and the passenger must have consented to the particular route. Here again these observations at first sight would seem to support Mr. Jones's argument. But I have not found anything in the discussion of that case to indicate that Judge Wisdom had in mind the question whether a flight of the kind which was being undertaken in this case was included within carriage by air within the meaning of that phrase as used in the Convention.

On balance therefore, while I have not found the decision in this case to be an easy one, I have come to the conclusion that we are not compelled by the Conventions which form the background to the Order of 1967 or by the decisions in the foreign courts to which we were referred to depart from the plain meaning of the words used in Schedule 1 to the Order of 1967. Although this decision may seem harsh in the present case, it should not be forgotten that one of the advantages of excluding the rules of the common law is that the United Kingdom rules are designed to impose liability on the carrier without proof of fault in respect of the death of or injury to passengers and to nullify contractual provisions the effect of which would be to relieve the carrier of liability or to restrict his liability in amount. These are significant advantages, as it may be very difficult to prove where fault lies when an aircraft has been destroyed in an air crash and all those who were on board the aircraft have lost their lives, and in view of the opportunities which would otherwise be available to those who provide carriage by air to exclude or restrict their liability. In M'Kay v. Scottish Airways Ltd. 1948 S.C. 254, 263 Lord President Cooper remarked on the amazing width of the conditions and the effort which had evidently been made to create a leonine bargain under which the passenger took all the risks and the carrier accepted no obligations. In that case a mother&!!;s claim for damages for her son&!!;s death was held to have been excluded by the conditions printed on the ticket which had been issued to the son as a fare-paying passenger. A bargain of that kind would now be vulnerable to the provisions of the Unfair Contract Terms Act 1977, but the rules in Schedule 1 to the Order of 1967 provide greater certainty so that both parties to the arrangement may now know where they stand and can make their own arrangements with their insurers accordingly.

For these reasons and for the reasons given by my noble and learned friend, the Lord Chancellor, I also agree that this appeal must be dismissed.

I should like to add some observations with regard to the motions which were made to us on the matter of expenses. This appeal has been brought by Mrs. Herd in her capacity not as an individual, although she is a pursuer in that capacity in the Court of Session, but only as guardian of her four children and by Mrs. Rivera, who is the mother of Sergeant Herd. The appellants had the benefit of civil legal aid for the purpose of the proceedings in your Lordships' House under section 14 of the Legal Aid (Scotland) Act 1986 and regulation 4 of the Civil Legal Aid (Scotland) Regulations 1987 (S.I. 1987 No. 381 (S.-31)). As each of them was given the benefit of legal aid on a nil contribution, it is appropriate that their liability under the award of expenses which must follow from the respondents' success in this appeal should be modified to nil under section 18(2) of the Act of 1986.

Mr. Keen then asked us to make an order under section 19 of the Act of 1986 for the payment out of the Scottish Legal Aid Fund of the expenses which had been incurred by the respondents in this appeal. Mr. Jones pointed out in his reply that section 19(1) of the Act of 1986, as amended by paragraph 8 of Schedule 4 to the Legal Aid Act 1988, provides that such an award may only be made in any proceedings which are "finally decided" in favour of an unassisted party. He submitted that a decision in this appeal would not finally determine the proceedings in this case, as it must now be returned to the Court of Session for a proof to be heard on other matters which are still in dispute.

In Moss v. Penman (No. 2), 1994 S.L.T. 602 the pursuer in a sheriff court appeal successfully resisted an appeal to the Inner House by the defender on a question of relevancy. It was held that on a proper construction of the provisions of section 19 of the Act of 1986 it was for the court in which the proceedings were "finally determined" to deal with this matter, and that the motion which was made at the stage of the disposal of that appeal was premature. At first sight that decision may be thought to support Mr. Jones' submission that Mr. Keen's motion for an order under section 19 to be made at this stage was premature. But in Megarity v. D. J. Ryan & Sons Ltd. (No. 2) [1982] A.C. 81 it was held that on the true construction of the Legal Aid Act 1974 all proceedings on appeal to an appellate court in any action, cause or matter were to be treated as separate proceedings from the proceedings in the same action in the court of first instance from which the appeal was brought, and that an interlocutory appeal to the Court of Appeal constituted separate proceedings for the purposes of section 13 of that Act. Lord Diplock pointed out, at p. 107A-B that, where there was an appeal to an appellate court, the only court that could make an order under section 13(1) was the appellate court, as section 13(3) plainly contemplated that, in the event of an appeal, an order relating to the unassisted party's costs at first instance might be made by the appellate court by which the proceedings were finally decided: see also Shiloh Spinners Ltd. v. Harding (No. 2) [1973] 1 W.L.R. 518. Section 13(1) of the Act of 1974 was in similar terms to section 19(1) of the Scottish Act of 1986 as amended by the Legal Aid Act 1988, Schedule 4, paragraph 8, and the corresponding subsection in the Act of 1986 to section 13(3) of the Act of 1974 is section 19(3).

Without wishing to cast doubt on the soundness of the decision in Moss v. Penman (No. 2), except to point out that the Inner House was not referred to Megarity v. D.J. Ryan & Sons Ltd. (No. 2) or Shiloh Spinners Ltd. v. Harding (No. 2) in the course of the discussion in that case, I consider that the matter is resolved, so far as your Lordships' House is concerned, by what was decided in the Megarity. The appellants were given legal aid for the purpose of this appeal, which has now been finally determined, and there is no appeal from a decision in your Lordships' House. For these reasons this is the appropriate stage for an order under section 19 to be made. I consider that, subject to an opportunity being given to the Scottish Legal Aid Board to make representations to the contrary, it would be just and equitable that such an order be made in this case.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, the Lord Chancellor. For the reasons he has given, I too would dismiss this appeal.