Once again it is events in the United States which feature in this review of recent developments in the law relating to carriage by air. No apology is offered for the writer’s apparent preoccupation with a single State (if not a single jurisdiction), since the emphasis merely reflects the high incidence of aviation related activities—including manufacture of products for overseas use—in the U.S. In addition, besides the fact that the American environment is one in which lawyers and lawsuits thrive, it is the case as discussed in previous articles that a U.S. judicial forum presents many attractions to aspiring foreign plaintiffs.

However, in this note, the focus of attention is shifted from the forum shopping passenger seeking to maximise his compensation for death or injury to the carrying airline. Two recent decisions—both of the U.S. Court of Appeals for the Second Circuit—have reviewed issues which are of particular importance to the international airline industry inasmuch as they relate to the ability to seek recompense from third parties for the consequences of aircraft hull damage.

The first of these cases (The Tokio Marine & Fire Insurance Co. Ltd. v. McDonnell Douglas Corporation, citation not available) concerned the interpretation of a standard form liability disclaimer clause in an aircraft sales contract. It has been axiomatic for many years that airliner manufacturers devote considerable energy to the refinement of contractual devices designed to render them immune from complaint from customers (except with respect to claims under limited scope warranty clauses whereby the seller agrees to replace parts that fail within a short period following delivery). Although exclusionary or disclaimer clauses could never affect the rights of a third party—be he a passenger or second-hand buyer of the aircraft—the common law’s respect for the principle of freedom of contract has exposed the international airline industry, as first time buyers on a substantial scale, to the full impact of the manufacturers’ “no liability” approach.

Traditionally, of course, courts have always interpreted exclusionary clauses strictly against the party wishing to rely upon them, especially where that party itself incorporated the disputed clauses in a standard form contract “issued” rather than negotiated. Accordingly, in all fields of contract law, developments seem to follow a