TRAVEL AND TOURISM
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1 Chancery Lane
Justice Silber London Wc2A 1LF
Travel Law Team
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Crawford Lindsay QC email@example.com
NEWSLETTER – May 2008
This newsletter has an aviation theme: a case note on the recent decision by Eady J in Laroche v
Spirit of Adventure. The full judgment is now available on Lawtel and the decision was very
recently reported in The Times. The observant among you will notice that this case has also
inspired the masthead for this Newsletter.
A date for your diaries: TATLA SUMMER RECEPTION
No lectures, no speeches – just an opportunity to enjoy drinks and canapés with like-minded
travel lawyer colleagues – what could be nicer on a Summer evening ...
The venue: 1 Chancery Lane, London WC2A 1LF (tel 0845 634 6666).
The date and time: 3 July 2008 at 6.30 pm.
There is no need to book – but an indication whether you are able to attend would assist
(by email to firstname.lastname@example.org).
Laroche v Spirit of Adventure
 EWHC 788; The Times, 23 April could not proceed. The Claimant issued
(Eady J, QBD) proceedings and the High Court was asked
to determine a number of preliminary
The facts issues.
In December 2001 the Claimant was given a
£90 voucher as a gift by his friend. The Was the Claim governed by the
voucher entitled him to a hot-air balloon Warsaw Convention?
flight organized by the Defendant company.
On 20th August 2003, on a fine late summer The term ‘Warsaw Convention’ in this
evening, the Claimant, along with other context is potentially misleading, although it
paying passengers, clambered into the was used as convenient shorthand by the
balloon’s wicker basket. The basket was parties in the case. It is well-established that
separated into small compartments where an accident occurs in the course of
surrounding a central area occupied by the international carriage by air, the air carrier’s
pilot. The balloon took off and was followed liability is governed exclusively by the
by a Landrover driven by one of the provisions of the Warsaw Convention (as
Defendant’s employees, whose job it was to amended by the Montreal Convention 1999),
track the flight path of the balloon and which became part of English Law under the
collect it wherever it, and the passengers, Carriage by Air Act 1961 and the Carriage By
wherever they landed. Around 35 minutes Air Acts (Implementation of the Montreal
into the flight the wind picked up and the Convention 1999) Order 2002. However, the
conditions suddenly deteriorated. The pilot hot air balloon in this case had both taken
announced that he would have to land the off and ‘landed’ (if that is the right word) in
balloon immediately. The passengers were the rolling countryside of Kent. As a result, if
told to adopt the brace position and prepare this was a case of carriage by air, it was
themselves for the landing. The balloon governed by the Carriage by Air Act
crashed into the ground, lifted off again and (Application of Provisions) Order 1967.
finally came down. The basked tipped over Schedule 1 to the 1967 Order effectively
and was dragged for some distance by the replicates the provisions of the Warsaw
wind before coming to a rest. As a result the Convention in respect of non-international
Claimant sustained a bimalleolar fracture to flights. Pursuant to Article 29 of the 1967
his left ankle. On 29th June 2004 the Order, a claim for damages must be brought
Defendant company went into liquidation. within 2 years of the end of the carriage. The
However, its public liability insurers, judge concluded that the same principles of
represented by loss adjusters, indicated that construction and interpretation should
they were prepared to negotiate with the apply to the non-international rules as
Claimant’s solicitors. In October 2004, the applied to the Warsaw Convention itself.
Defendant’s loss adjusters indicated their Accordingly, following the judgment of the
desire to settle the case on commercial House of Lords in Sidhu v British Airways
grounds. A medical expert was jointly (1997) AC 430, if the non-international rules
instructed and negotiations continued. One did govern the claim, and they afforded no
year later, in October 2005, and, remedy, then no remedy was available at all.
significantly, 2 years after the date of the
accident, the Defendant’s insurers changed Did the flight involve the carriage of
their position and argued for the first time passengers on board an aircraft for
that the Claim was time-barred under the reward?
provisions of the Warsaw Convention (now,
the Montreal Convention, so far as Curiously, the word ‘aircraft’ is not defined
international carriage is concerned) and in any of the international conventions, or
the domestic legislation. In Disley v Levine
(2002) 1 WLR 785, the Court of Appeal had failed to make any reference to the
held that a trainee pilot learning to fly a provisions of the Athens Convention in the
paraglider with her instructor was not being Ferry Ticket. This was a breach of Statutory
carried on a ‘aircraft’ within the meaning of Instrument 1980/1125 and was punishable,
the 1967 Order. However, the judge in on summary conviction, only with a fine not
Laroche had little hesitation in exceeding £500. However, the Court
distinguishing Disley and concluding that concluded that the Convention applied as a
the hot air balloon was an ‘aircraft’. The matter of law and it could not be displaced
basket was designed for the carriage of by statutory or common law requirements
passengers, it was irrelevant (following regarding contractual incorporation.
Fellowes v Clyde Helicopters (1997) AC 534)
that there was no fixed destination, and the Extending or disapplying the
fact that the flight was for leisure purposes, limitation period
rather than say a business flight, was
immaterial. Furthermore, the fact that the Pursuant to section 651 of the Companies
Claimant himself had not paid for his £90 Act 1985 the Court has power to declare the
voucher did not mean that the flight was dissolution of a company void on application
otherwise than for reward, since it had by an interested party. On making such an
already been conceded by both parties that order, the Court can also direct that the
there was a contract between the Parties. period between dissolution of the company
and the making of the order should not
Incorporation of the Convention count for the purposes of calculating the
limitation period. The Claimant argued that
The Defendant’s standard terms and he was entitled to rely upon 651 to bring
conditions, which it was agreed applied to himself within the relevant limitation period
the hot air balloon flight, did not refer to the in this case. Unfortunately, the argument
Warsaw or Montreal Convention at all. The was fundamentally misconceived. The 2-
only reference to liability for personal injury year limitation period had expired before the
was in the form of a general disclaimer Defendant Company was dissolved, and the
which stated that the Defendant could not court had no power to direct that a period of
“accept responsibility for damage or injury, time before dissolution should not count for
or be held liable for any loss of property, the purposes of limitation. The judge also
which does not result from our negligence”. emphasized the fact that Article 29 of the
The Claimant placed reliance on EC Council Non-International Rules operated as a
Regulation 2027/97, which provided that substantive, rather than merely a procedural
information about the Warsaw Convention bar to bringing a claim after 2 years. In other
should be set out in the ‘ticket document’ in words, Article 29 extinguishes the claim
plain and intelligible language. It was argued itself, as well as the remedy, unlike the
that since the Defendant had not even raised provisions of the Limitation Act 1980. The
the application of the Convention until 2 Claimant did not seek to rely upon Section
years after the accident, it was not open to it 33 of the Limitation Act 1980 in an attempt
to rely upon it now. The judge rejected this to disapply the 2-year period. Again, the
argument, relying upon dicta from Nelson J answer to whether this would have been
at First Instance in the DVT litigation to the possible is provided by case-law under the
effect that the Regulation did not create a Athens Convention. In Higham v Stena
free-standing cause of action where the Sealink  2 Lloyds Rep 26, the Court of
Convention did not provide a remedy. It was Appeal held that a claimant who had issued
also relevant that the Regulation only a claim after the expiry of the 2 year time-
applied to ‘Community Air Carriers’. It is limit under the Convention could not rely
submitted that this is unquestionably the upon section 33 of the Limitation Act. The
right decision on this issue. The judge may reasoning was 2-fold. First of all the effect of
well have been fortified in his conclusion if section 33 was to disapply completely a
he had been referred to the decision of period which had already run its course and
Hobhouse J in R.G. Mayor v P&O Ferries therefore could not possibly be treated as a
(‘The Lion) , which considered a ground for ‘suspension or interruption’.
similar point under the Athens Convention. Furthermore, even if s.33 was a ‘suspension
In R.G. Mayor, the Defendant carrier had or interruption’, it expressly referred to “the
provisions of section 11 or 11A or 12 of the
(Limitation) Act” and therefore could not be
construed as embracing the relevant Article
of the Athens Convention.
CPR UPDATE: Documents mentioned
Estoppel and Waiver in statements of case etc and legal
The Claimant’s final argument was based on
estoppel and waiver. It was alleged that Expandable Limited v Rubin 
because the Defendant’s insurers had EWCA Civ 59
purported to ‘deal with the claim’ as if it Court of Appeal: Rix, Jacob & Forbes LJJ.
were a claim for breach of contract or
negligence, and on the common assumption The Facts
that a 3-year limitation period applied, they
were now estopped from relying upon the 2- The Defendant, in making an interlocutory
year limit under the Non-International application, referred in his witness
Rules, or alternatively that they had waived statement in support of the application to
their right to do so. The judge rejected this various documents, including a letter to him
argument on the basis that since the Non- from his solicitors. The Claimant applied for
International Rules applied as a matter of an order allowing inspection of that letter.
law, and provided the exclusive remedy (see The Defendant resisted the application on
Sidhu) they could not be ‘ousted’ by the grounds that the letter was privileged.
reference to domestic law or rules of The Registrar dismissed the application; the
evidence. Furthermore, since the 2-year Judge granted permission to appeal, but
time limit under the convention operated refused the appeal; the single Lord Justice
not only to extinguish the remedy, but also granted permission to appeal.
the right of action, it was not now possible to
‘revive’ by reference to common law The Judgment of the Court of Appeal
principles of estoppel or waiver.
Pursuant to CPR 31.14, a party may inspect a
Conclusion document mentioned in a witness
statement, and since the Defendant had
This case stands a salutary reminder that made direct reference to the letter in his
both the procedural and substantive statement, it fell squarely within that
provisions of the various International provision. However, the letter was a
Conventions should always be considered communication between solicitor and client,
where an accident has occurred in the course and was therefore privileged. The allusion to
of carriage by air or by sea, whether the letter was not an automatic or absolute
domestically or internationally. The waiver of the privilege.
Conventions, where they apply, do so by
operation of law and provide the only [Comment: This case is another useful
remedy for damages, to the exclusion of the illustration that there is an exception to
common law and statute alike. If there is any every rule. At first blush, it might seem that
doubt as to whether the conventions apply, CPR Part 31.14 provides that every
protective proceedings should be issued document alluded to in a witness statement
within the 2-year limitation period and the will automatically become discloseable.
Particulars of Claim can be drafted to plead Nevertheless, the rules relating to legal
a cause of action under the Conventions, and professional privilege seem to trump the
at common law, in the alternative. CPR, with the effect that, even where a party
refers to a privileged document in a witness
statement, the document will not necessarily
be rendered discloseable].