Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - CARRIAGE BY AIR
Article 25: an English approach to recklessness
Neil R. McGilchrist
M.A. (Oxon.), Solicitor.
On 1st July 1977 Dr Philip Goldman travelled as a passenger on board a Thai Airways International Ltd. DC.8, flying from London to Bangkok. While the aircraft was flying north-west of Istanbul it penetrated an area of severe clear air turbulence. Several passengers were thrown from their seats. Dr Goldman suffered a spinal injury when he fell back from the ceiling upon an armrest. The aircraft flew on to its next scheduled stop at Karachi where an inspection revealed no structural damage. The aircraft continued to Bangkok with Dr Goldman, having had some medical attention, still a passenger.
It may be perhaps seem surprising that these facts should form the background to a case which has seen the most sustained attack to be mounted in the United Kingdom upon the traditional approach adopted towards interpretation of Art. 25 of the Warsaw Convention as amended at The Hague.
Readers will recall (inter alia from [1977] 4 LMCLQ 539) that Art. 25 provides the primary ground upon which it is possible to break the otherwise applicable limit of liability enjoyed by the air carrier engaging in international carriage. In the original text of the 1929 treaty the test required by Art. 25 to be met by the plaintiff was to demonstrate that
“the damage is caused by … wilful misconduct or by such default … as, in accordance with the law of the court to which the case is submitted is equivalent to wilful misconduct”.
In Horabin v. BOAC [1952] 2 All E.R. 1016 Barry, J., declared that wilful misconduct was
“wholly different in kind from mere negligence … however gross that negligence may be”.
Wilfulness connoted that the
“person who did the act knew at the time that he was doing something wrong and yet did it notwithstanding or alternatively that he did it quite recklessly not caring whether he was doing the right thing or the wrong thing, quite regardless of the effect of what he was doing on the safety of the aircraft and of the passengers”.
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