Court holds Warsaw Convention applies despite English ticket language, limiting baggage compensation to statutory caps.

[*246] 1982 March 29

(PAPADOPOULOS, P.D.C.)

IN THE DISTRICT COURT OP LARNACA

Antonios Michael and Another,

Plaintiffs,

V.

British Airways of Nicosia,

Defendants.

(Action No. 189/81).

Contract - Air carriage - Ticket - Limitation clause - Sufficiency of notice - Pact that limitation clause not written in the language of the passenger - Whether material - Claim for loss of luggage - Limitation clause on ticket embodying the provisions of the Warsaw Convention, 1929 - Plaintiff entitled to he compensated within the limits provided by the above Convention - Hague Protocol and the Guadalahara Convention (Ratification) Law, 1976 (Law 66/70).

E. Erotokritou; for the Plaintiffs.

I. Spanos, for the Defendants.

JUDGMENT

The following judgment was delivered by:-

PAPADOPOULOS, P.D.C.: - The plaintiffs are [*247] husband and wife. They lived for a time in England. The defendants are air carriers. The plaintiffs sometime in 1980 decided to re-settle in Cyprus. They bought two tickets from the defendants and on the 22.6.1980 boarded flight BA582 at Heathrow Airport, London, with destination Larnaca Cyprus. The plaintiffs on the same date, 22.6.1980 delivered to the defendants two suitcases containing their personal effects, which the defendants undertook to deliver to the plaintiffs at Larnaca airport. The two suitcases were misdirected to Instanbul, where they were lost. It is the allegation of the plaintiffs that the value of their lost property is worth £1,300 which amount they claim from the defendants.

The facts of the case are admitted by the defendants, except for the value of the suitcases and their contents. At the hearing of the action both counsel agreed to hear the Court’s decision as to the liability of the defendants' first. If it is found that the defendants are liable over the amount that the defendants admit then the plaintiffs to proceed with the proof of the amount of damages.

The defendants admit that they are liable to pay to the plaintiffs the amount of U.K. £386.- and in fact they offered this amount to the plaintiffs who failed to accept it. This amount, according to the allegation of the plaintiffs, is the maximum provided from the

Warsaw Convention which limits the compensation for checked baggage to U.K.£9.65 per kilo. As the weight of the lost

baggage was 40 kilos [*248] the defendants offered the equivalent of U.K.£360.- to the plaintiffs who rejected it.

Counsel of both sides addressed me on the legal implications of this case. I am grateful to them as they rendered me valuable assistance in this extra-ordinary case.

It has been the submission of learned counsel for the plaintiffs that the Warsaw Convention does not apply in the present case because the plaintiffs were not given proper notice of any terms contained in the ticket and in particular that there was a limitation clause. He further argued that the plaintiffs had no reason to believe that the ticket contained contractual terms limiting liability.

He went on to submit that the conditions in the ticket should also be in the language of the purchaser of the ticket. Mr. Erotokritou referred me to a number of cases and authorities in his effort to convince me.

Mr. Spanos on the other hand, in a profound exposition of the law, submitted that his clients are not liable for anything more than it is provided by the limiting clauses on the ticket. He submitted that this case is to be decided according to the provisions of Law 66/70 which embodies and ratifies the Warsaw Convention. He further submitted that the ticket is a contract and the plaintiffs cannot contract out of it. That there was ample notice of the limiting clause. That there was no need to have the ticket also printed in Greek or to have a Greek translation on it. He did not dispute negligence but submitted that the plaintiffs [*249] could succeed in their claim only if they proved recklessness on behalf of the defendants’. However, the plaintiffs did not rely on recklessness.

There is no doubt that international carriage is regulated by International Conventions which have been given statutory force. The Warsaw Convention, the Hague Protocol and the Convention at Gudalajara were given statutory force in Cyprus by Law 66/70. The Convention applies to all international carriage of persons, baggage or cargo performed hy aircraft for reward. (Chitty on Contract,

Vol.2 (24th Ed.) para.2704). The present case concerns an international carriage for reward.

In our Law 66/70, Art.III , s.2, one reads:" To εισητήριον του επιβάτου, μέχρι αποδείξεως

του εναντίον, συνιστά απόδειξιν της συνάψεως και των όρων της συμβάσεως

μεταφοράς…” (The passenger’s ticket, till the contrary is proved, is proof of the execution of a contract of carriage and the

conditions thereof). Regarding the baggage our Law in Art.4, s. 2 provides: “Το δελτίον αποσκευών, μέχρις αποδείξεως του εναντίον, συνιστά

απόδειξιν της καταγραφής των αποσκευών και των όρων της συμβάσεως μεταφοράς…”. (The baggage check, till the contrary is proved, is proof of the

registration (check) of the baggage and the conditions of the contract of carriage).

From the above I may safely say that the plaintiffs were passengers of an International Carrier Company (the defendants) for reward. They had bought a ticket for the [*250] transportation of their persons and baggage. The Warsaw Convention limiting the liability for loss of baggage is applicable according to the provisions of our Law 66/70.

Now I shall proceed to examine if the "contrary has been proved". The submission of learned counsel for the. plaintiffs, as I said earlier, is that

1) They had no notice

a) because they had no reason to expect that the ticket created contractual relationship, and

b) the notice in the ticket was of such a nature that one could not see it, and

2) The ticket was not written in Greek so that they would understand its contents.

As to 1(a) above I would like to cite from Chitty on Contract, 24th ed., vol.1 , p.313, para,677. It reads:

"The document must be of a class which either the party receiving it knows, or a reasonable man would expect to contain contractual conditions. Thus a cheque-book, a ticket for a deckchair, a ticket handed to a person at a public bath house and a parking ticket issued by an automatic machine have been held to be cases 'where it would be quite reasonable that the party receiving it should assume that the writing contained no condition and should put it in his pocket unread'. On the other [*251] hand, a railway or steamship ticket or a receipt for goods deposited has been held to be a contractual document“.

I am of the opinion that a reasonable man receiving an air ticket would not be expected to put it in his pocket unread but on the contrary he would expect it to contain certain conditions.

As to 1(b) i.e. “sufficiency of notice “ I would like to say the following:-

In my opinion it is for the Court to decide whether the notice is reasonably sufficient. (See Thornton v. L.M.&S. Railway (1930) I K.B. 41, Sugar v. L.M. & S. Railway (1941) All E.R., 172, Thornton v. Shoe Lane Parking Ltd. (197l) 2 Q.B. 163).

In the case of White v. Blackmore (1972) 3 All E.R.158 Lord Denning had this to say:

“It is settled Law "that a ticket on its face must say: ’For condition see back'. "If it does not say it in its front it is not sufficient to "put a condition at the back. This was decided by the House "of Lords in Henderson v. Stevenson (1875) L.R.S. Sc & Die. 1470.“

Anson's Law of Contract 23rd Edition (1969) p.146 says:

"It is the practice for example always to refer on the face of the ticket to the fact that there are conditions printed at the back. If this is not done, then following the case of Henderson v. Stevenson, the Courts have consistently held that such a notification is defective". [*252]

Looking at the tickets which are before me as exh. 1 I am of the opinion that they sufficiently draw the attention of the holder to the conditions of contract printed inside.

As to (2) above i.e. the fact that the ticket was written only in English, I would like again to cite Chitty on Contracts, Vol.1 (24th ed.) p. 315, para. 682 "Personal disability:- It is immaterial that the party receiving the document is under some personal, but non-legal, disability, such as blindness, illiteracy, or an inability to read our language. Provided the notice is reasonably sufficient for the class of persons to which the party belongs (e.g. passengers on a ship or railway) he will be bound by the conditions".

In the light of the above I find that the plaintiffs were travelling -under a contract which embodied the provisions of the Warsaw Convention and consequently I declare that the plaintiffs are only entitled to be compensated to the limits provided by the above Convention.

With regard to costs, I think this is a case where I can depart from the rule that costs follow the event. In the result I make no order as to costs.

Judgment for plaintiff for £386.- with no order as to costs.