Lloyd's Maritime and Commercial Law Quarterly
EXCLUSIVITY OF THE WARSAW CONVENTION
Emery Air Freight v. Nerine Nurseries
The decisions of the New Zealand High Court1 and Court of Appeal2 in Emery Air Freight v. Nerine Nurseries Ltd, are of interest for the very different approaches taken by the courts to the issue of the exclusivity of the Warsaw Convention system and its relationship to common law rights of action—an issue which has also recently been addressed by the House of Lords in Sidhu v. British Airways Plc.3
The case was concerned with the carriage of a consignment of flower bulbs from Palmerston North, New Zealand, to the Netherlands. Nerine contracted with local freight agent Jarratt for the carriage of its bulbs to Amsterdam. Jarratt sent the bulbs by road from Palmerston North to Auckland, and then sub-contracted their air carriage from Auckland airport to Amsterdam to Emery. Emery in turn arranged for the bulbs to be carried to Sydney by United Airlines and from there on by Alitalia. The bulbs arrived in Amsterdam severely damaged, apparently due to exposure to rain and warm temperatures while in transit in Sydney under Alitalia’s control.
Nerine issued summary judgment proceedings in the District Court against Jarratt, which promptly went into receivership, and against Emery; but not, surprisingly, against Alitalia. Nerine maintained that Jarratt had acted as its agent in entering into the carriage contract with Emery; that Emery, rather than Jarratt, was therefore the contracting carrier; and that Emery was consequently liable to Nerine for any loss or damage to its goods under Art. 18 of the amended Warsaw Convention, as enacted in New Zealand by the Carriage by Air Act 1967.4 In the alternative, Nerine argued that Emery was a bailee for reward, and had breached its common law duty of care. The District Court accepted Nerine’s first argument. Emery appealed to the High Court.
In the High Court, Eichelbaum, C.J., rejected Nerine’s Warsaw Convention argument, finding that it had not been established that Jarratt had acted as Nerine’s agent in contracting with Emery. The judge found that the format of the two air waybills, issued by Jarratt to Nerine and by Emery to Jarratt respectively, suggested that Jarratt had contracted as a principal both with Nerine and with Emery. The judge held that, as there was no direct contractual relationship between Nerine and Emery, Emery could not incur liability in relation to Nerine, either as a carrier under the Warsaw Convention, or as a contracting carrier under the Guadalajara Convention.5
However, Eichelbaum, C.J., considered that Nerine’s alternative claim in bailment was sustainable.6 The judge cited Tasman Pulp & Paper Co. Ltd v. Brambles JB O’Loghlen
1. H.C., Wellington, A.P. 144/94, 10 February 1995.
2. [1997] 3 N.Z.L.R. 723.
3. Sidhu v. British Airways Plc [1997] A.C. 430. See Campbell [1996] LMCLQ 318 for a discussion of the Court of Session judgments in Abnett.
4. The Warsaw Convention 1929 as amended by the Hague Protocol 1955. and the Guadalajara Convention 1961 have the force of law in New Zealand by virtue of the Carriage by Air Act 1967, s. 7. The French and English texts of the Conventions are set out in Scheds 1 and 2 to the Act.
5. Supra, fn. 1, at pp. 9-11. The judge noted at 11 that the “proposition that notwithstanding that it subcontracted the carriage to Alitalia, Emery as a matter of construction was the ‘actual carrier’ [under the Guadalajara Convention] was not advanced” before him. This argument was put forward by Nerine in the Court of Appeal [1997] 3 N.Z.L.R. 723, 733-735.
6. Supra, fn. 1, at pp. 11-14.
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