Lloyd's Maritime and Commercial Law Quarterly
ARTICLES 22 AND 25 OF THE WARSAW CONVENTION—AN AUSTRALIAN CONTRIBUTION
S. S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd.
The proceedings in S.S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd.1 related to the carriage by air of a consignment of cartons of pharmaceutical products from Melbourne to Tokyo which arrived in Tokyo in an unsaleable condition. The carrier, Qantas, admitted liability and invoked the limitation provisions of Art. 22 of the Warsaw Convention as amended by the Hague Protocol (the “amended Convention”), which was the applicable liability regime pursuant to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). By Art. 22, the liability of a carrier for carriage of cargo is limited to 250 francs per kilogram, the franc being deemed to refer to a currency unit consisting of 65.5 milligrams of gold of millesimal fineness 900. In response, the cargo interests relied upon Art. 25 of the amended Convention, contending that the carrier’s conduct in causing or permitting the damage to take place made the limitation provision inapplicable to the loss. By Art. 25 the limitation of liability set out in Art. 22 is not available to the carrier if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result.
The consignment of pharmaceutical capsules, which were packed in plastic bags inside cardboard cartons (each carton being marked with a stencilled umbrella, denoting in accordance with international practice that the cargo in each carton would be damaged if exposed to water), were placed in standard IATA configuration twin-cushion high wet-strength waterproof glue corrugated cardboard containers which were themselves fastened with metal staples, strapped with polypropylene banding tape and wrapped in micron plastic bags, sealed by shrink wrapping and then strapped onto five slave pallets. The consignment was loaded on a Qantas flight from Melbourne to Sydney, where it was unloaded and subsequently loaded onto a freighter for carriage from Sydney to Tokyo. During transhipment in Sydney, a period of some nine hours, the consignment was on the tarmac exposed to rain. Upon arrival in Tokyo the consignment was surveyed and the top tier of the cartons, upon which the umbrella caution marks were visible, were found to be in a damp condition and the bottom tiers were badly wetted.
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