Lloyd's Maritime and Commercial Law Quarterly
CARRIAGE BY AIR OUTSIDE THE INTERNATIONAL CONVENTIONS
Holmes v. Bangladesh Biman Corp.
Underlying the recent decision in Holmes v. Bangladesh Biman Corp.1
; there are certain issues concerning the jurisdiction of states which show that it is increasingly difficult to rely on analysis which rigidly separates categories of law such as private international law, public international law and municipal law.
The decision of the House of Lords in this case, allowing an appeal from the Court of Appeal,2 concerned a claim arising from the death of a British citizen who was killed when a Bangladesh Biman aircraft in which he was travelling crashed during an internal scheduled flight between two Bangladeshi cities. The contract of carriage had been made in Bangladesh, it was to be wholly performed within that state and the proper law was that of Bangladesh. The Court of Appeal had nevertheless held that the higher limit of liability for “non-international” carriage in the United Kingdom’s Carriage by Air (Application of Provisions) Order 19673 applied, rather than the very low limit in the law of Bangladesh.
The relevant Schedule to the Order ostensibly set a régime for all carriage by air which was not “international” in the sense that would attract application of the provisions of the Warsaw Convention (or that Convention as amended by the Hague Protocol). The House of Lords held that those provisions were to be read subject to the principle of statutory interpretation that the Act containing the powers enabling the making of the Order4 was to be presumed not to have extra-territorial effect except to the extent that such effect was indicated. The provisions on noninternational carriage in the Order were consequently restricted in scope to the same extent. Hence, the law of Bangladesh would apply rather than the provisions of the United Kingdom Order.
This approach by the House of Lords takes account of the distinction between that part of the legislation on carriage by air which flows from arrangements made by treaty and those provisions which have been adopted by the United Kingdom’s legislators independent of international agreement. More interesting, perhaps, than the particular application of the presumption of statutory interpretation is the way in which the speeches in the House of Lords formulate propositions which bear on the jurisdiction of the United Kingdom.
Thus, Lord Bridge describes the heart of the issue as: “a principle embodied in a line of authority … which certainly establishes a presumption limiting the scope which should be given to general words in a United Kingdom statute in their application to the persons, property, rights and liabilities of the subjects of other
1. [1989] 2 W.L.R. 481.
2. [1988] 2 Lloyd’s Rep. 120; see Gardiner, “Our Law or Theirs?” [1988] 4 LMCLQ 445.
3. S.I. 1967 No. 480. Schedule 1 to the Order sets out a modified version of the “Warsaw–Hague” rules to govern carriage by air not falling within the definition of “international carriage” in the Warsaw Convention or in the Convention as amended by the Hague Protocol. Schedule 2 to the Order sets out the rules of the unamended Warsaw Convention.
4. The Carriage by Air Act 1961, s. 10.
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