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Aviation Case Studies

Kotsambasis -v- Singapore Airlines Limited

Decision of NSW Court of Appeal allowing cross appeal by Singapore Airlines and following US decisions on psychological injury. Interpretation of Article 17 of the Warsaw Convention.

Article 17 of the Warsaw Convention 1929, which is adopted into Australian law by the Civil Aviation Carriers Liability Act 1959 (Cth), provides:

“The Carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

The Court held that the term “bodily injury” in art 17 of the Warsaw Convention does not include purely psychological injury. The Court also made observations on the general approach to be taken in the interpretation of an international convention. The Court held that is by application of the rules of interpretation recognised by customary international law, and by the Vienna Convention on the Law of Treaties In the interpretation of international agreements, courts are not at liberty to consider any word as superfluous or insignificant. And words of limitation in international agreements must be given effect.

Koulambrakis v Singapore Airlines Limited

Decision of NSW District on jurusdiction under Article 28 of the Warsaw Convention 1929. It provides:

  1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.
  2. Questions of procedure shall be governed by the law of the Court seized of the case.”

Section 8(1) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), provides:

“Rights to compensation for injury contained in the Convention are in substitution for any civil liability of the carrier under any other law in respect of the injury.”

Section 8(1) of the Act requires that any inconsistency between the English text set out in the scheduled Warsaw Convention and the original French text must be resolved in favour of the French text.

The Court held that in interpreting the Warsaw Convention 1929, it was relevant to have regard to the following:

  1. that the terms used were those of an international convention;
  2. that the Convention was not written by parliamentary draftspersons nor couched in their idiom. Hence it should not be construed by the technical rules of Australian laws or Australian precedent;
  3. the obligation to look at the authentic French text to resolve inconsistencies;
  4. the circumstances leading to the particular terms used in the authentic French text, in the “Travaux Preparatoires”

So interpreted the words, “Where the carrier is ordinarily resident” in art 28 were intended to cover the situation where the carrier was an individual and the words “where the carrier has his principal place of business” were intended to cover the situation where the carrier was a corporation. Accordingly, the District Court did not have jurisdiction in respect of a claim for damages suffered on board an aeroplane owned by Singapore Airlines Ltd, which had its principal place of business in Singapore.

 

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