Gulf Air Company GSC v Fattouh - [2008] NSWCA 225

No judgment structure available for this case.

Reported Decision: [2009] ALMD 1381230 FLR 311251 ALR 183

New South Wales

Court of Appeal

CITATION: GULF AIR COMPANY GSC v FATTOUH [2008] NSWCA 225

HEARING DATE(S): 22 July 2008

JUDGMENT DATE:
24 September 2008

JUDGMENT OF: Allsop P at 1; Hodgson JA at 107; Campbell JA at 108

DECISION: (1) leave be granted to appeal from the orders of the District Court made on 14 August 2007;
(2) a notice of appeal be filed within 7 days;
(3) the appeal be allowed;
(4) the said orders of the District Court be set aside and in lieu thereof order the proceedings against the first defendant be dismissed with costs; and
(5) the respondent pay the appellant’s costs of the appeal and application for leave to appeal.

CATCHWORDS: CARRIAGE BY AIR – carriers’ liability – Warsaw Convention – Montreal Convention – jurisdiction – meaning of “place of destination”

LEGISLATION CITED: Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Judiciary Act 1903 (Cth)
Stamp Act 1921 (WA)

CATEGORY: Principal judgment

CASES CITED: Aanestad v Air Canada 390 F Supp 1165 (1975)
Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559
Baah v Virgin Atlantic Airways Ltd 473 F Supp 2d 591 (2007)
Brown Boveri (Aust) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448
Butz v British Airways 421 F Supp 127 (1976)
Butz v British Airways 566 F 2d 1168 (1977)
Croteau v Air Transat AT Inc [2007] QCCA 773
Effort Shipping Co Ltd v Linden Management SA [1998] AC 605
El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202; 140 FCR 296
Emery Air Freight Corporation v Merck Sharp and Dohme (Australia) Pty Limited [1999] NSWCA 415; 47 NSWLR 696
Gayda v LOT Polish Airlines 702 F 2d 424 (1983)
Grein v Imperial Airways Limited [1937] 1 KB 50
Haldimann v Delta Airlines Inc 168 F 3d 1324 (1999)
Hurley v KLM Royal Dutch Airlines 562 F Supp 260 (1983)
Hurley v KLM Royal Dutch Airlines 602 F Supp 1249 (1985)
In re Air Crash Disaster Near Warsaw Poland, on May 9, 1987 760 F Supp 30 (1991)
In re Alleged Food Poisoning Incident, March, 1984 770 F 2d 3 (1985)
In re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495
Klos v Polskie Linie Lotnicze 133 F 3d 164 (1999)
Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 (1987)
Lee v China Airlines 669 F Supp 979 (1987)
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125
Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 8 NSWLR 242
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Ong v Malaysian Airline System Berhad [2007] HKCU 1141
Ong v Malaysian Airline System Berhad [2008] HKCU 441
Petrire v Spantax SA 756 F 2d 263 (1985)
Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189
Qureshi v KLM Royal Dutch Airlines (1979) 102 DLR (3rd ) 205
Re Air Crash Disaster of Aviateca Flight 901 near San Salvador, El Salvador on August 9, 1995 29 F Supp 2d 1333 (1997)
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd [1961] AC 807
Sopcak v Northern Mountain Helicopter Serv 52 F 3d 817 (1995)
Swaminathan v Swiss Air Transport Company 962 F 2d 387 (1992)
Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1

PARTIES: GULF AIR COMPANY GSC
Ahmed Bader Eddin FATTOUH

FILE NUMBER(S): CA 40596/2007

COUNSEL: Appellant: M Leeming SC/ E Peden
Respondent: B Gross QC

SOLICITORS: Appellant: Norton White, Sydney
Respondent: Carroll & O'Dea, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6220/06

LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ

LOWER COURT DATE OF DECISION: 14 August 2007

CA 40596/07

ALLSOP P
HODGSON JA
CAMPBELL JA
Wednesday 24 September 2008

GULF AIR COMPANY G.S.C. OPERATING AS “GULF AIR” v FATTOUH

Headnote

The respondent (plaintiff) was injured by a fellow passenger on a flight from Beirut to Sydney via Bahrain. On the final leg of the flight, two hours flying time from Sydney, the alleged assault occurred. The ticket issued by the appellant (air carrier) was a round trip from Beirut to Bahrain to Sydney to Bahrain to Beirut. Beirut was identified as the “destination” on the ticket. There was a three-month break between arrival in Sydney and departure from Sydney. The respondent sued the appellant in the District Court under the Civil Aviation (Carriers’ Liability) Act 1999 (Cth). The appellant moved the District Court to dismiss the claim against it for want of jurisdiction. It was common ground that the District Court only had jurisdiction if Sydney was the “place of destination” for the purposes of Article 28 of the Montreal No 4 Convention which covered the carriage and which was made part of Australian law by the Civil Aviation (Carrier’s Liability) Act, s 25K. Hungerford ADCJ dismissed the motion. The appellant sought leave to appeal.

Held, allowing the appeal:

(Allsop P; Hodgson JA and Campbell JA agreeing)

1. Beirut, not Sydney, was the place of destination pursuant to the agreement of the parties and for the purposes of the Montreal No 4 Convention, Art 28. The place of destination is as identified on the ticket as part of the agreement of the parties, unless rebutted by material contradicting the ticket as evidence of the concluded contract and its terms: [93].

2. The correct approach to ascertaining the place of destination is by ascertaining the content of the agreement between the carrier and passenger by reference to their mutual contractual intention, evidenced in the first instance by, and generally governed by, the ticket issued to the passenger: [59].

3. The District Court did not have jurisdiction.

4. The proper approach to the construction of international instruments discussed. In interpreting an international instrument, regard must be paid to international uniformity to the extent such can be achieved and, in furtherance of that aim, respect is to be afforded to considered decisions of foreign courts, in particular appellate decisions dealing with the convention in question: [26] and [27].

5. The time of bilateral formation between passenger and carrier can be accepted to be either a reasonable time after delivery of the ticket or upon boarding. Such acceptance should be viewed as referable to the whole offer contained in the ticket: [88].

MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 discussed and distinguished.

CA 40596/07

ALLSOP P
HODGSON JA
CAMPBELL JA
Wednesday 24 September 2008

GULF AIR COMPANY G.S.C. OPERATING AS “GULF AIR” v FATTOUH

JUDGMENT

1 ALLSOP P: This is an application for leave to appeal and an appeal (heard concurrently) from orders made by an Acting Judge of the District Court (Hungerford ADCJ) dismissing (with costs) a motion that had been brought by the applicant (to which I will refer as “Gulf”), as the first defendant in the District Court, for an order dismissing the proceedings against it for want of jurisdiction ([2007] NSWDC 153; 5 DCLR (NSW) 234).

2 For the reasons expressed below, leave should be granted, the appeal be allowed, the orders of the District Court set aside and the proceedings in the District Court dismissed as against Gulf.

Introduction

3 The respondent (the plaintiff below) claimed damages for personal injury said to have been sustained by him on 21 February 2005 on a commercial airliner operated by Gulf en route to Sydney from Beirut, via Bahrain. The respondent claimed that while standing in the aisle he was punched by another passenger, the second defendant (who was not a party to the application for leave to appeal or to the proposed appeal). The incident was said to have occurred about two hours flying time from Sydney.

4 After the challenge to jurisdiction was brought forward by Gulf, the primary judge made orders that the question of jurisdiction be decided separately and before other issues.

5 The jurisdictional issue arises in the following way. The plaintiff brought the action against Gulf pursuant to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the “Act”). The Act, s25K provides that the international convention known as the Montreal No 4 Convention (to which I will sometimes also refer as the “Convention”) has the force of law in Australia in relation to any carriage by air to which it applies. It was and is common ground that the Montreal No 4 Convention and therefore Part IIIC of the Act applied to the carriage by Gulf of the respondent. The full title of the Montreal No 4 Convention is set out in s5 of the Act. The English text of the Montreal No 4 Convention is Schedule 5 to the Act. (Schedule 5 is the composite international instrument embodying the Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw 12 October 1929 (the “Warsaw Convention”), as amended by the Hague Protocol 1955 and the Montreal Protocol No 4 1975.)

6 Article 17 of the Montreal No 4 Convention (given the force of law by the Act, s25K) provides as follows:

Article 17

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.

7 This provision provides for the liability of a carrier in the position of Gulf. By s36 of the Act (made applicable to Part IIIC of the Act by s 25L), the liability of Gulf is in substitution for any civil liability of the carrier under any other law in respect of the injury. The respondent’s claim was therefore one derived from a law of the Commonwealth and the District Court’s jurisdiction, being the exercise of federal jurisdiction if validly invoked under the Judiciary Act 1903 (Cth), s39(2), depended upon the terms of the Act and the Montreal No 4 Convention, the latter as Australian law.

8 Whilst there was no issue about the basis for Gulf’s potential liability, Gulf said that the District Court, indeed no Australian court, had jurisdiction (that is, authority to adjudicate: Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559) to hear the respondent’s claim against it, because of Article 28 para 1 of the Montreal No 4 Convention. Article 28 is in the following terms:

Article 28

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 had 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 seised of the case.

9 It was common ground that Gulf was not ordinarily resident in Australia, did not have its principal place of business in Australia and did not have an establishment in Australia by which the contract was made. Given these facts and the terms of Art 28 para 1, it is clear that the only basis for the District Court’s jurisdiction was if it was “[a] Court having jurisdiction at the place of destination”. The respondent submitted that “the place of destination” for the purposes of Article 28 was Sydney and so the District Court had jurisdiction; Gulf submitted that “the place of destination” was Beirut and so the District Court did not have jurisdiction.

10 The primary judge concluded that the place of destination was Sydney and that, therefore, the District Court had jurisdiction over the respondent’s claim against Gulf.

11 To explain why his Honour erred in reaching this conclusion, it is convenient to say something of the background facts, before examining the Convention and its operation.

The facts

12 The primary judge set out the background facts from the affidavit material and the agreed facts at [4]-[8] of his reasons in a manner that was not the subject of criticism, as follows:

[4] The plaintiff is, and was at the relevant time of travel, a resident of Lebanon who lived in Tripoli with his family other than one of his sons, Tarek Fattouh, who lived with his wife and children at Greenacre in Sydney. The plaintiff first came to Sydney in 2002 when he visited his son and stayed for about three months. An affidavit sworn by Mr Fattouh on 22 June 2007, on which there was no cross-examination, detailed the action taken by him to assist in arranging a second trip to Sydney by the plaintiff. It seems he attended the Punchbowl office of Gitani Travel Agency Pty Ltd in December 2004 to make application for a visitor’s visa for his father and then returned on 10 February 2005 to finalise the arrangements as to dates of travel, airline and prices. He paid Gitani Travel the amount of $1,790 and was informed that the Tripoli office of Gitani Travel would contact the plaintiff when the tickets were ready for collection; Mr Fattouh confirmed the arrangements with the plaintiff who, he said, only had to pick up the tickets in Tripoli as he had paid for the trip already and there was no payment made by the plaintiff.

[5] The general manager of the first defendant for Australia and South Pacific, Robin Middleton, on 19 April 2007 swore an affidavit, not subject to cross-examination, which set out matters concerning the airline’s system for the sale of and payment for tickets, details of the plaintiff’s ticket and booking record, and including the terms of the first defendant’s general conditions of carriage.

[6] Matters of note emerging from Mr Middleton’s affidavit may be shortly summarised in the following way –

• The plaintiff’s ticket was issued on 17 February 2005 by Gitani Travel of Tripoli, Lebanon (apparently not the same entity as its namesake at Punchbowl, Sydney although the principals of each may be related).

• The ticket was for carriage of the passenger, the plaintiff, by Gulf Air and was valid for Gulf Air flights only.

• The “origin/destination” shown on the ticket was "BEYBEY" which indicated that Beirut (“BEY”) was both the point of origin and destination.

• The abbreviation on the ticket “SITI” indicated that the transaction originated in Lebanon as being “sold in ticketed in” that country by a reservation and booking of seats on the flights concerned.

• The fare for the ticket was paid in cash with US dollars, but if it was made by credit card to Gitani Travel in Punchbowl (as Mr Fattouh said) then such payment would have been remitted to Gitani Travel in Tripoli for payment to the first defendant.

• The passenger contact was “Mary” of Gitani Travel in Tripoli.

• The ticket showed flights for the plaintiff from Beirut to Bahrain on 20 February 2005, Bahrain to Sydney on 20 February 2005, Sydney to Bahrain on 18 May 2005 and Bahrain to Beirut on 19 May 2005.

[7] The plaintiff duly travelled in accordance with the flights as shown on the ticket and, on the final leg of the flight after a stop-over in Singapore, at about 8.30am before landing in Sydney the assault allegedly occurred. Again in accordance with the ticketing arrangements, and after the visit to his son and family in Greenacre, the plaintiff on 18 May 2005 flew from Sydney to Bahrain and on 19 May 2005 from Bahrain to his original departure point of Beirut in Lebanon.

Agreed facts

[8] The parties to the motion agreed the following facts:

1.The First Defendant is and was at all material times a carrier and the alleged events giving rise to the plaintiff’s claim occurred during international carriage, within the meaning given to those terms in the Civil Aviation (Carriers' Liability) Act 1959 (Cth) and the Montreal No 4 Convention.

2. At the time of the alleged incident as a result of which the plaintiff allegedly suffered injury, and to which this proceeding relates, the plaintiff was a passenger travelling on a passenger ticket numbered 5124321862 (“the Ticket”), a copy of which is attached and marked “A”, on Flight GF 148 operated by the First Defendant from Bahrain to Sydney.

3. The first defendant’s General Conditions of Carriage (Passenger and Baggage), a copy of which is attached and marked “B”, formed part of the terms and conditions of the contract of carriage.

4. Honouring the Ticket, the first defendant carried the plaintiff on the following flights performed by the first defendant:

(a) GF910 from Beirut (Lebanon) to Bahrain on 20 February 2005; and

(b) GF148 from Bahrain to Sydney (Australia) on 20 February 2005; and

(c) GF149 from Sydney (Australia) to Bahrain on 18 May 2005; and

(d) GF911 from Bahrain to Beirut (Lebanon) on 19 May 2005.

5. Each of Australia and Lebanon are High Contracting Parties to the Montreal No 4 Convention.

13 As the above facts reveal, the respondent did not personally arrange for the booking of, or payment for, the ticket; that was done by his son in Australia. The respondent did, of course, pick up the ticket and travel on the ticket to Australia from Beirut to Sydney, via Bahrain, and later returning to Beirut, via Bahrain.

14 Gulf emphasised a number of facts. First, the face of the ticket in its residual form, the four relevant coupons for the four sectors or flights (using those words neutrally for the moment) having been removed at the time of checking in, stated (through uncontroversial abbreviation) that Beirut was both “origin” and “destination”. The ticket also stated “from” Beirut and “to” Bahrain, “to” Sydney, “to” Bahrain and “to” Beirut. The ticket also contained a line concerned with fare calculation that appeared to treat all the flights as the basis of one calculation.

15 Gulf’s general conditions of carriage were also in evidence. It is convenient to make reference to them later in these reasons.

Issues

16 The parties posed a number of questions for the primary judge in disposition of the motion, which the primary judge recounted in [10] of his reasons, as follows:

[10] The parties to the motion submitted the following as issues arising in the proceedings:

The plaintiff’s claim is for damages under Article 17 of the Warsaw Convention as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975 (“the Montreal No 4 Convention”) which is Schedule 5 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). The plaintiff concedes that the court only has jurisdiction if he can satisfy the court that the proceeding falls within one of the four grounds for jurisdiction identified in Article 28 of the Montreal No 4 Convention. Of these four grounds, the plaintiff relies only on the fourth, namely that Sydney was the place of destination within the meaning given to that term by the Montreal No 4 Convention.

The following questions have been raised by the parties for determination:

A. Whether the plaintiff was at the relevant time being carried by the first defendant according to an agreement for the carriage of the plaintiff from Beirut to Bahrain to Sydney to Bahrain to Beirut or according to an agreement for the carriage of the plaintiff from Beirut, or Bahrain to Sydney.

B. Whether any contract or contracts of carriage were made by the first defendant with the plaintiff’s son.

C. Whether an operative contract for carriage was only completed in respect of each flight to a destination by the act of the first defendant issuing a boarding pass to the plaintiff at the check-in counter at each place of departure, to permit and enable the plaintiff to be carried on each flight to such destination.

D. Whether Sydney was the place of destination within the meaning given to that term by the Montreal No 4 Convention.

17 These questions reflected the way that the parties intended to argue the motion. In particular question C reflected the way the plaintiff relied upon MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125. As the primary judge himself made clear in [11] of his reasons, the ultimate issue for determination was question D: whether Sydney was “the place of destination” for the purposes of Art 28. Question B was not debated on appeal.

The legislative regime

18 It is necessary to deal with the legislative regime in a little more detail. The Act is Australia’s implementation of its international obligations under the Warsaw Convention, and the Warsaw Convention’s later Protocols including the Montreal No 4 Protocol. These international instruments were an attempt to unify international law with respect to air carriers, including the liability of air carriers on international air carriage. The regime included limits of liability, uniformity of documents, a presumption of liability, uniform time limits for suits and a restricted group of venues or fora for suit. It is unnecessary to describe the development in detail of these international instruments from the Warsaw Convention, to the Hague Protocol 1955 (the Protocol to amend the Warsaw Convention opened for signature at The Hague on 28 September 1955), to the Guadalajara Convention (the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier opened for signature at Guadalajara on 18 September 1961), to the Guatemala Protocol (the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955), done at Guatemala City on 8 November 1971, to the various so-called Montreal Protocols including the Montreal Protocol No 4 (the Protocol to Amend the Warsaw Convention as amended by the Hague Protocol done at Montreal on 25 September 1975). It is sufficient to note that for present purposes Arts 17 and 28 were relevantly unchanged from the Warsaw Convention to the Montreal No 4 Convention, through the adoption of the various Protocols, and Arts 1 and 3 para 1 are substantially the same in the Warsaw Convention and the Montreal No 4 Convention.

19 Part I of the Act contains preliminary matters. Part II the Act applies to air carriage to which the Warsaw Convention as amended by the Hague Protocol applies. Part III applies to air carriage to which the unamended Warsaw Convention applies. Part IIIA applies to air carriage to which the Guadalajara Convention applies. Part IIIC applies to air carriage to which the Montreal No 4 Convention applies.

20 Chapter I of the Montreal No 4 Convention deals with application of the Convention and definitions. By Art 1 para 1, the Montreal No 4 Convention applies to all “international carriage” of persons, baggage or cargo performed by aircraft for reward and to gratuitous carriage performed by an air transport undertaking. The balance of Art 1, in particular para 2, concerns the scope of the Montreal No 4 Convention. Article 1 is in the following terms:

Article 1

1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

2. For the purposes of this Convention, the expression

means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purpose of this Convention.

3. Carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

21 Chapter II of the Montreal No 4 Convention deals with documents of carriage. Section 1 (comprising Art 3) deals with the passenger ticket. Section 2 (comprising Art 4) deals with the baggage check. Section 3 (comprising Arts 5 to 16) deals with documentation relating to cargo.

22 Articles 3 and 4 are in the following terms:

Article 3

1. In respect of the carriage of passengers a ticket shall be delivered containing:

(a) an indication of the places of departure and destination;

(b) if the places of departure and destination are within the Territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c) a notice to the effect that, if the passenger’s journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.

2. The passenger ticket shall constitute

evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention. Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by paragraph 1 (c) of this Article, the carrier shall not be entitled to avail himself of the provisions of Article 22.

Article 4

1. In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph 1, shall contain:

(a) an indication of the places of departure and destination;

(b) if the places of departure and destination are within the Territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c) a notice to the effect that; if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage.

2. The baggage check shall constitute

evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check (unless combined with or incorporated in the passenger ticket which complies with the provisions of Article 3, paragraph 1 (c)) does not include the notice required by paragraph 1 (c) of this Article, he shall not be entitled to avail himself of the provisions of Article 22, paragraph 2.

23 Chapter III of the Montreal No 4 Convention (comprising Arts 17 to 30A) deals with the liability of the carrier. Article 17 concerns death and bodily injury of the passenger and is in the terms set out earlier. Article 18 concerns loss of or damage to baggage and cargo. Article 19 concerns damage caused by delay. Article 28 sets out a closed list of venues or fora for the resolution of disputes in the terms earlier set out.

The proper approach to the interpretation of the

Montreal No 4 Convention

24 The proper approach to the interpretation of an international convention, in this case given the force of national law, is clear. It is necessary, however, to restate the approach because of one submission made by the respondent. It is convenient to begin by referring to what Gleeson CJ, Gummow, Hayne and Heydon JJ said in Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189 at 202[24] and [25] in the context of this very statute and convention:

[24] There was no dispute between the parties about the principles that govern construction of an international agreement like Montreal No 4. The guiding principles of treaty interpretation are found in the Vienna Convention on the Law of Treaties. … Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Interpretative assistance may be gained from extrinsic sources (Art 32) in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 leaves the meaning “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”.

[25] Importantly, international treaties should be interpreted uniformly by contracting states

(1980) 147 CLR 142 at 159 per Mason and Wilson JJ

(1998) 196 CLR 161 at 186[70] per McHugh J; at 213[137] per Kirby J

(2004) 216 CLR 418 at 466-467[153]-[154] per Kirby J

But, of course, the ultimate questions are, and must remain: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law?

25 It was submitted on behalf of the respondent that the statement in the last sentence of [25] of their Honours’ reasons put a qualification on what their Honours had earlier said about the correct principles governing the interpretive approach. I do not accept that argument. Of course, to the extent that the task at hand is or may be the construction and interpretation of Australian legislation, it is the meaning of that law that is the ultimate question: NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 at 71-72[61]. However, where, as here, the relevant international instrument is given the force of Australian law in its full terms, it is the convention properly interpreted and understood as an international instrument that is given the force of Australian law.

26 A summary of the principles guiding the interpretation of an international instrument that can be taken from the authorities referred to in Povey and other High Court and final appellate authorities was set out in Emery Air Freight Corporation v Merck Sharp and Dohme (Australia) Pty Limited [1999] NSWCA 415; 47 NSWLR 696 at 704[50]; Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 113; Brown Boveri (Aust) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 at 453-454; and El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202; 140 FCR 296 at 300[1] and 326-327[142]-[144] and 328[146]-[148]. See also In re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 at 502-503[11].

27 Relevantly for present purposes, the only aspect of these principles which requires restating is the importance of international uniformity to the extent such can be achieved and, in furtherance of that aim, the respect that is to be afforded to considered decisions of foreign courts, in particular appellate decisions, dealing with the convention in question: Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd [1961] AC 807 at 840 and 869; Brown Boveri v Baltic Shipping at 453; and Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 at 615.

The

Montreal No 4 Convention

, the evidence and the international approach to the question of “the place of destination”

28 It is clear from the terms of Arts 1 and 3 of the Convention that the agreement of the parties to the contract of carriage is central to the identification of the place of departure and the place of destination. The importance of that contractual choice is that the application of the Convention depends upon those two places being within the territory of two High Contracting Parties or one High Contracting Party with an agreed stopping place in the territory of another State (whether or not a High Contracting Party).

29 Article 28, read together with Arts 1 and 3, reveals tolerably clearly that (subject to the operation of Art 1 para 3 if there are successive air carriers and a series of contracts) the Convention proceeds on the basis that there is one place of departure and one place of destination for any contract of carriage. The plural “places of departure and destination” in Art 3 para 1(a) of the Montreal No 4 Convention is distributive. It is a reference to the place of departure and the place of destination (as in Art 1 para 2). In the unamended Warsaw Convention the phrase “the place of departure and of destination” was used. There is no suggestion that any change of substance was intended by this linguistic variation made by the Hague Protocol 1955 (compare Schedules 1 and 2 of the Act).

30 One is directed first to the ticket issued by the carrier to understand the contract of carriage and its contents. The ticket is prima facie evidence of the conclusion of the contract of carriage and of its conditions: the Montreal No 4 Convention, Art 3 para 2. Thus, by direction of a law of the Commonwealth, the ticket issued and delivered by the carrier is the first source of the identification of the conclusion of the contract and its contents. One aspect of the contract and its contents of which the ticket is prima facie evidence is the place of destination which must be indicated on the ticket.

31 Here, the ticket states the contract of carriage to be “from” Beirut “to” Bahrain, “to” Sydney, “to” Bahrain” and “to” Beirut. It is expressly stated on the ticket that (in the context of those flights) Beirut is the “origin” and “destination”.

32 The existence of prima facie evidence of the conclusion of a contract of carriage with conditions (that is content) as stated on the ticket, including the agreed place of destination, enables the conclusion that what is stated on the ticket, including the agreed place of destination, is the concluded contract unless other evidence, including that of the surrounding circumstances, reveals a contractual intention at variance with the contents of the ticket.

33 In this case, that takes one to Gulf’s general terms and conditions of carriage which, it was agreed (see the statement of agreed facts) formed part of the terms and conditions of the contract of carriage. Before examining those terms, however, it is necessary to state the importance of one fact that is perhaps obvious, but is relevant to an important argument of the respondent. There was a three month break in the respondent’s journey, from 20 February to 18 May 2005. Whilst this is a substantial break, no doubt permitting the respondent to visit family and friends in Australia, it was a fact explicit in the contents of the ticket. The ticket identified the outward and return journey by date. Therefore, it is difficult to use this factor as a countervailing circumstance to rebut the prima facie evidence from the ticket that Beirut was the place of destination in the concluded contract evidenced by the ticket, when that fact was part of the background known at the time of the issue of the ticket and was reflected in the written content of the ticket.

34 Gulf’s general conditions of contract do not provide evidence that would rebut or vary the prima facie position on the ticket that the contract of carriage was as stated on the ticket, with Beirut the (place of) destination. It is, however, helpful at this point to examine aspects of the terms, in particular in advance of dealing with MacRobertson Miller and the associated arguments on appeal put by the respondent.

35 The phrase “Agreed Stopping Places” was defined in Art 1 of the general conditions as meaning:

…those places, except the place of departure and the place of destination, set out in the Ticket or shown in our timetables as scheduled stopping places on your route.

36 The word “Stopover” was defined in Art 1 as meaning:

…a scheduled stop on your journey, at a point between the place of departure and the place of destination.

37 The word “Convention” was defined in Art 1 as meaning whichever relevant convention applied, including the Montreal No 4 Convention.

38 Under Article 3, Gulf agreed to provide carriage to the passenger named in the ticket during a period of validity: Arts 3.1 and 3.2. Some discounted tickets were wholly or partly non-refundable: Arts 3.1.3 and 3.1.4. By Art 3.3.1 the Ticket was valid only for the transportation shown on the ticket:

…from the place of departure via any Agreed Stopping Places to the final destination.

39 Article 3.3.5 contained a promise about the acceptance of coupons in the ticket as follows:

Each Flight Coupon contained in your Ticket will be accepted for carriage in the class of service on the date and flight for which space has been reserved.

40 Article 5 dealt with reservations. In Art 5.5.1 reconfirmation is dealt with as follows:

If it is required and you fail to confirm, we may cancel your onward or return reservations. However, if you advise us you still wish to travel, and there is space on the flight, we will reinstate your reservations and transport you. If there is no space on the flight we will use reasonable efforts to transport you to your next or final destination.

41 Article 6 contained a reservation of the right to cancel a reservation if check-in deadlines were not complied with.

42 Article 7 concerned the refusal to carry. It commenced with a general discretion expressed as follows:

In the reasonable exercise of our discretion, we may refuse to carry you or your Baggage if we have notified you in writing that we would not at any time after the date of such notice carry you on our flights. In this circumstance you will be entitled to a refund.

43 Article 8 dealt with baggage. Article 8.3 set out items that were unacceptable as baggage and Art 8.4 concerned a power to refuse to carry items of baggage otherwise unsuitable because of size, shape, weight, content, character or for reason of safety, operations or comfort of other passengers.

44 Article 8.8 dealt with collection of baggage. Article 8.8.1 stated:

…you are required to collect your Checked Baggage as soon as it is made available at your destination or Stopover.

45 By Article 9, Gulf stated that it did not guarantee flight times in timetables and reserved the power of changing flight times. Article 9.1.1, referring to flight times in timetables, stated:

We do not guarantee them to you and they do not form part of your contract with us.

46 Article 9.2 dealt with cancellation and re-routing, in terms that included the following:

9.2.1 We will take all necessary measures to avoid delay in carrying you and your Baggage. In the exercise of these measures and in order to prevent a flight cancellation, in exceptional circumstances we may arrange for a flight to be operated on our behalf by an alternative carrier and/or aircraft.

9.2.2 Except as otherwise provided by the Convention, if we cancel a flight, fail to operate a flight reasonably according to the schedule, fail to stop at your destination or Stopover destination, or cause you to miss a connecting flight on which you hold a confirmed reservation, we shall, at your option, either:

9.2.2.1 carry you at the earliest opportunity on another of our scheduled services on which space is available without additional charge and, where necessary, extend the validity of your Ticket; or

9.2.2.2 within a reasonable period of time re-route you to the destination shown on your Ticket by our own services or those of another carrier, or by other mutually agreed means and class of transportation without additional charge. If the fare and charges for the revised routing are lower than what you have paid, we shall refund the difference; or

9.2.2.3 make a refund in accordance with provisions of Article 10.2.

…

9.2.4 If we are unable to provide previously confirmed space, we shall provide compensation to those Passengers denied boarding in accordance with applicable law and our denied boarding compensation policy. A copy of our denied boarding compensation policy is available upon request.

47 Article 10 dealt with refunds. Subject to discounted tickets referred to in Art 3 and the terms of Art 10, refunds could be claimed on tickets once issued. Article 10.2 dealt with involuntary refunds as follows:

10.2.1 If we cancel a flight, fail to operate a flight reasonably according to schedule, fail to stop at your destination or Stopover, or cause you to miss a connecting flight on which you hold a reservation, the amount of the refund shall be:

10.2.1.1 if no portion of the Ticket has been used, an amount equal to the fare paid;

10.2.1.2 if a portion of the Ticket has been used, not less than the difference between the fare paid and the applicable fare for travel between the points for which the ticket has been used.

48 Article 11 dealt with conduct on board aircraft.

49 Article 12 dealt with arrangements for additional services.

50 Article 13 dealt with administrative formalities.

51 Article 14 dealt with successive carriers in the following terms:

Carriage to be performed by us and other Carriers under one Ticket or a Conjunction Ticket is regarded as a single operation for the purposes of the Convention. However, your attention is drawn to Article 15.5.1.

52 Article 15 dealt with Gulf’s liability for damage. The terms, which need not be set out, provided for liability substantially by reference to any relevant Convention as defined.

53 Article 16 concerned notices of claims and time limits. Article 16.2 provided as follows:

Any right to damages shall be extinguished if an action is not brought within two years of the date of arrival at destination, or the date on which the aircraft was scheduled to arrive, or the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the law of the court where the case is heard.

54 Before saying something about Art 17 which deals with arrangements concerning the United States of America and the European Union, it is convenient to say something about the above terms. First, it is tolerably clear from them that Gulf undertook real and not illusory obligations: see in particular, Arts 3 and 9. Though (as one would expect) the terms gave it some flexibility in relation to flight times, reservations and the like, the provisions which I have set out identified real and substantive contractual obligations to carry the passenger.

55 Secondly, the language of the terms is entirely consistent with the terms and structure of the Convention and with the terms and content of the ticket. There is nothing in the terms (subject to what I will address in relation to Art 17 shortly) inconsistent in any way with Beirut being the place of destination on this ticket. Indeed, the language of the general conditions is apt to reinforce what is plain on the face of the ticket. To the extent that the phrase “next or final destination” is used that is consistent with the “place of destination” being the “final destination”. The use of “destination or Stopover” and the phrase “agreed stopping places” are consistent with the language of the ticket and of the Convention – “destination” and “place of destination”.

56 The only place in the general conditions in which the language of the terms may seem to support a notion that a “destination” is other than a final destination is Art 17. These parts of the terms deal with carriage in the United States of America and the European Union. The first part of Art 17, concerning the United States uses the phrases “point of origin”, “a point of destination” and “agreed stopping place”. The second part of Art 17 uses phrases such as “last destination”, “final destination”, “first point of departure”. There is a definition of “final destination” as meaning:

[T]he destination on the ticket presented at the check-in counter, or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected.

57 Though some of this language does not sit entirely happily with the use of “the place of destination” as only one place, being the last stop, Art 17 does not apply to this carriage and can also be seen to be two particular regimes for two specific geographical and political areas.

58 Looking at the whole of the general conditions of contract, they do not rebut or vary the prima facie contractual effect of the ticket that the agreed place of destination was Beirut.

59 The conclusion as to what is the place of destination for Articles 1, 3 and 28 is derived from understanding the agreement of the parties. That said, the meaning that has been attributed to the phrase “the place of destination” in the Warsaw Convention and in particular Articles 1 and 28 by courts in different countries is not without importance. First, an understanding of the approach that has been taken to the phrase, in particular in the context of round trips such as the present with a break in the journey, assists in the ascertainment of the subject matter of agreement in the Convention: “the place of destination”. Secondly, and importantly, the foreign cases confirm that the correct approach to ascertaining the place of destination is by ascertaining the content of the agreement between carrier and passenger by reference to their mutual contractual intention, evidenced in the first instance by, and generally governed by, the ticket issued to the passenger. Thirdly, an understanding of the approach taken in foreign courts assists in ensuring that a parochial or local approach to the ascertainment of the contract is not taken. To say as much is not intended to reflect the use, to ascertain the existence or meaning of a contract, of foreign law or foreign legal principles chosen by reference other than to any approach or law or legal system required by the Act or Australian principles of private international law. Rather, it is to assist in understanding the concept or content of the phrase “the place of destination” as it appears in the Convention, about which the parties are free to agree, and to assist in understanding how similar problems have been solved in courts of other jurisdictions. An understanding of these matters is likely to promote a uniform or consistent approach to the Convention and a uniform or consistent approach to the interpretation of agreements about air carriage made against the background of the Convention.

60 Before examining these cases (that are principally on the Warsaw Convention) it should be noted that, relevantly, Arts 1, 17 and 28 in the Warsaw Convention are in substantially the same terms as those same Articles in the Montreal No 4 Convention. Article 3 para 1 is also substantially the same, but Art 3 para 2 in the two conventions is in somewhat different terms. Importantly, Art 3 para 2 of the Montreal No 4 Convention (having its origins in the Hague Protocol of 1955) has the express provision that the ticket is prima facie evidence of the conclusion and conditions of the contract.

61 In Grein v Imperial Airways Limited [1937] 1 KB 50 the ticket was from London to Antwerp and return with an agreed stopping place at Brussels. Belgium was not a High Contracting Party. The passenger was killed in a crash on the return flight. The primary judge found two distinct carriages and the latter was from a place not within the territory of a High Contracting Party and so there was no “international carriage” for the purposes of the Warsaw Convention. Greene LJ (as his Lordship then was, with whom Talbot J agreed) noted (at 77) that Art 1 paras 2 and 3 of the Warsaw Convention made the contract the subject of attention. The importance of this was stated by Greene LJ at 78-79 as follows:

In other words, once the contract is ascertained to be a contract for the class of carriage described, it matters not that the journey is broken. Thus, if the contract were for carriage of a passenger from Paris to Madrid it would make no difference if the passenger was entitled under the contract to break his journey at Toulouse; he might be entitled to remain at Toulouse for a week or a month and then resume his journey, the carriage would none the less satisfy the definition. The reason for this is clear once it is appreciated that the contract is the unit, not the journey. Such a traveller, speaking without reference to the Convention, might well say, if asked by a fellow passenger on leaving Paris what his place of destination was, that it was Toulouse; but this would not alter the fact that his “place of destination” for the purposes of para 2 of art 1 would be Madrid, since it is to Madrid that the carrier agrees to carry him.

…

I.

“Place of departure and place of destination.” The use of the singular in this expression indicates that in the minds of the parties to the Convention every contract of carriage has one place of departure and one place of destination. An intermediate place at which the carriage may be broken is not regarded as a “place of destination”. Having regard to its context, and particularly to the fact that it is in the contract that the place of departure and the place of destination are to be looked for, the meaning of the expression appears to me to be “the place at which the contractual carriage begins and the place at which the contractual carriage ends”.

Though the phrase “the place of departure and of destination” in the Warsaw Convention has been replaced by the phrase “the places of departure and destination” in Art 3 para 1, as I said, that appears only to be a linguistic change, the plural “places” being read distributively to mean the same thing.

The conclusion to which I have come is that the contract by reference to which the place of departure and the place of destination are to be ascertained may be any contract of carriage whether for a single journey, for a circular journey or for a return journey; that the place of departure and the place of destination mean the places at which under the particular contract in question the contractual carriage begins and ends; and that agreed stopping place means any place at which under the particular contract the aeroplane is to descend in foreign territory between the points of departure and destination. In the case of a return journey this will be or include, as the case may be, the place out to and back from which by the contract the passenger is to be carried. In the case of carriage of each type the same essential element is present – namely, the interposition between the beginning and the end of the contractual carriage of an agreed descent in the territory of another State. In each case the mischief requiring to be remedied by the adoption of an international code is the same – namely, the possibility of questions arising between the parties as to the law applicable to the contract which they have made. I cannot find any consistently intelligible meanings for the expressions which I have been discussing which stop short of those which I have placed upon them.

It is said that the expression “place of destination” is not a natural expression to use in reference to the homeward end of a return journey; and that agreed stopping place is not a natural expression to use in reference to the outward end of such a journey. But the question is not what is the natural meaning of these expressions in the abstract or in some other context but what is their natural meaning in this context. If my analysis of the context is correct I see nothing unnatural in the meaning which I have attributed to these expressions.

62 Once one appreciates that the enquiry is as to what is the contractual place of destination, not as to what is, or would be, a place that a traveller might call his or her destination, and not by reference to the individual subjective intention or purpose of the passenger, the importance of the break in the carriage (see Art 1 para 2) or in the contractual “operation” (see Art 1 para 3) and the importance of the length of such a break can be seen to diminish.

63 The views of Greene LJ in Grein have not been doubted in England. In Holmes v Bangladesh Biman Corporation [1989] 1 AC 1112 at 1131 Lord Bridge of Harwich said:

But it was decided in

and appears never to have been doubted since that carriage of a passenger pursuant to the single contract embodied in a return ticket from a place of departure in a Convention country to a destination in a non-Convention country and back to the original place of departure is “international carriage” within the Convention definition. Thus, if Thai Airways carry a passenger on a return ticket London–Bangkok–London, this is “international carriage” subject to the Hague Convention.

64 Grein has been approved directly or indirectly (through the adoption of texts which cite it) in a number of cases: Croteau v Air Transat AT Inc [2007] QCCA 773 at [39] (Quebec Court of Appeal); Ong v Malaysian Airline System Berhad [2007] HKCU 1141 at [16]-[23] (Chan J); approved on appeal, Ong v Malaysian Airline System Berhad [2008] HKCU 441 at [32] and [86].

65 The same approach is revealed by the majority of the cases in the United States. The United States is a party to the Warsaw Convention, but not to the Montreal No 4 Convention. It would be unproductive to examine all the United States cases in detail. They mainly concern the unamended Warsaw Convention (which lacks the express presumptive evidential effect of Art 3 para 2 in the Montreal No 4 Convention). It is sufficient to indicate that the weight of the jurisprudence from both the Federal Court and the Circuit Courts of Appeal supports the following relevant propositions in relation to the Warsaw Convention:

(a) For any given ticket there can be only one “place of destination”.

(b) The frame of reference for analysis in order to identify the place of destination is the contractual intention of the parties objectively ascertained for which enquiry the ticket is central.

66 Whilst at times the expression of governing principle in the United States’ cases appears to draw away from the centrality of the contractual intention of the parties, see, eg, Klos v Polskie Linie Lotnicze 133 F 3d 164 at 167[3] (2nd CCA 1997), that can be seen to be a product of compactness of expression. The above three propositions, which are entirely consistent with Grein and the other authorities to which I have referred, can be taken from Gayda v LOT Polish Airlines 702 F 2d 424 at 425 (2nd CCA 1983); In re Alleged Food Poisoning Incident, March, 1984 770 F 2d 3 at 6 (2nd CCA 1985); Petrire v Spantax SA 756 F 2d 263 (2nd CCA 1985); Swaminathan v Swiss Air Transport Company 962 F 2d 387 at 389 (5th CCA 1992); Baah v Virgin Atlantic Airways Ltd 473 F Supp 2d 591 at 595 (SDNY 2007); Klos v Polskie Linie; Sopcak v Northern Mountain Helicopter Serv 52 F 3d 817 (9th CCA 1995); Lee v China Airlines 669 F Supp 979 (CD Cal 1987); Butz v British Airways 421 F Supp 127 (DC Pa 1976); aff’d 566 F 2d 1168 (3rd CCA 1977).

67 It was submitted by the respondent that the United States’ authorities reflect a parochial or non-international perspective. I reject that submission. These authorities accord with the approach in Grein and in the authorities from other countries. They reflect the capacity of the parties to choose the contractual journey and the contractual place of departure and of destination. Of course, given the practicalities of the booking and ticketing process, this gives the carrier significant control over that mutual objective intention, through the contents of the ticket and its general conditions. But that is the very aim of the Warsaw Convention and later conventions: to permit the parties to contractually choose the placed of departure and destination in order to fix the law applicable to the flight by reference to the content of a relevant convention made applicable by the places of departure and destination. Greene LJ referred to this in Grein at 82. By the contractual choice of Beirut as the place of departure and destination the parties (including, of course, Gulf) fixed the Montreal No 4 Convention as the law to govern (see Art 1 para 2) and the courts of Lebanon as one of the fora for suit (see Art 28).

68 The same approach as taken in Grein and the above United States’ authorities has been taken in Canada: Croteau; and Qureshi v KLM Royal Dutch Airlines (1979) 102 DLR (3rd ) 205.

69 The international text writers are uniformly consistent to the above effect: Mankiewicz RH The Liability Regime of the International Air Carrier (Kluwer 1981) at 134-136; Goldhirsch LB The Warsaw Convention Annotated (Kluwer 2000) at 16-19 and 185-188; Giemulla E and ors Warsaw Convention (Kluwer 2003) at 13-16; Philipson T QC and ors (Fountain Court Chambers) Carriage by Air (Butterworths 2001) at 187; Clarke M Contracts of Carriage by Air (LLP 2002) at 189-199; Shawcross and Beaumont Air Law (LexisNexis Butterworths 1997-2008) Issue III, Vol I, Division VII at [439] –[441].

70 Exceptions to this uniform approach to the interpretation of the Warsaw Convention and, relevantly here, the Montreal No 4 Convention, and to the requirement to ascertain the place of destination for Arts 1 and 28 from the objectively ascertained contractual intention of the parties, in which enquiry the ticket delivered to the passenger plays a central role, are two United States cases at first instance relied upon by the respondent (Aanestad v Air Canada 390 F Supp 1165 (CD Cal 1975) and Hurley v KLM Royal Dutch Airlines 562 F Supp 260 (CD Cal 1983)). These cases have been criticised and not followed in the United States by later Federal Courts and criticised by international scholars. Also, it should be noted that the order in Hurley was vacated without opposition: see 602 F Supp 1249 (1985).

71 In Aanestad a ticket was issued from Montreal to Los Angeles with a return flight to Montreal. The return flight was left open. The place of destination was held to be Los Angeles. The reason for that conclusion involved the proposition that a contract of carriage under the Warsaw Convention can have two places of destination. The conclusion also involved looking at the passenger’s subjective intention. Likewise in Hurley, the court looked at the passenger’s intention, the nature of the stop and the length of the time of the stop in order to determine the destination. Aanestad has been described as “simply out of step with virtually all other courts addressing the destination issue”: Re Air Crash Disaster of Aviateca Flight 901 near San Salvador, El Salvador on August 9, 1995 29 F Supp 2d 1333 (SD Fla 1997).

72 In another case in the Federal court, In re Air Crash Disaster Near Warsaw Poland, on May 9, 1987 760 F Supp 30 at 32 (EDNY 1991), the subjective personal intention of the passenger was taken as the relevant factor, not the contractual intention. This approach and this case was disapproved by the 5th Circuit Court of Appeals in Swaminathan.

73 The above jurisprudence on the Warsaw Convention which is equally applicable to the Montreal No 4 Convention is reinforced in the latter by the importance of the ticket as prima facie evidence in Art 3 para 2.

74 If the above were the limits of the debate on appeal there would be little doubt that the answer to the issue posed for consideration would be that in accordance with overwhelming authority in courts of a number of countries the place of destination is to be determined by ascertaining the agreement between the parties as exhibited, at least in the first instance, by the ticket issued by the carrier and delivered to the passenger. Taking this approach here, and taking into account the general conditions of Gulf, the contractual place of destination would clearly be Beirut.

75 The primary judge was alive to the consequences of the above approach and of the weight of the authorities. He rejected this approach. An appreciation of why his Honour did so reveals, in my respectful view, both the error in his approach and the error in the submissions which seek to support the approach he took.

The approach of the primary judge, the relevance of MacRobertson Miller and the submissions of the parties

The time and mechanism of contract formation

76 Given the effect of Art 3 para 2 it might be thought that the precise timing and mechanism of the formation of the contract between the carrier and the passenger would not be crucial. The primary judge recorded at [24] of his reasons that neither party relied on the fact that the respondent’s son had made the travel arrangements and paid for the ticket. It was accepted before the primary judge and on appeal that any relevant contract was between the respondent and Gulf. Gulf submitted to the primary judge that the contract was either at the time of issue of the ticket on 17 February 2005 in Tripoli or at some time thereafter, but, in any event, no later than boarding the plane on 20 February. The respondent submitted that the ticket was only evidence of an executory contract and the executed contract for the relevant flight (to Bahrain) or series of flights (to Bahrain and Sydney) was made at time of boarding. The respondent, relying upon MacRobertson Miller, argued that the relevant contract was that referable to the boarding of the flight and so the destination in relation to that contract of carriage was Sydney, either because the executed contract was Beirut to Sydney via Bahrain, or because there were two contracts in the outward trip: Beirut to Bahrain and Bahrain to Sydney. These arguments were accepted by the primary judge.

The reasons of the primary judge and

MacRobertson Miller

77 After setting out the agreed facts, the issues and the legislative scheme, the primary judge dealt with the approach to interpretation of the Convention. Much of what the primary judge said was orthodox and unexceptional, but at [19] and [20] of his reasons the primary judge threw doubt upon the United States’ jurisprudence about the Warsaw Convention. He did this misunderstanding, with respect, what Mason P had said in Emery Air Freight 47 NSWLR at 704-705. The primary judge appeared to take from Mason P’s reasons the propositions that the United States was not a party to the Warsaw Convention or later related conventions and that because of this the United States’ decisions should be looked at “closely”, meaning warily. This is not what Mason P said or meant. Mason P noted (Emery Air Freight at [51]) that the United States was not a party to “the Warsaw Convention as amended by the Hague Protocol and/or the Guadalajara Convention”. This was not a statement by the President that the United States was not a party to the unamended Warsaw Convention. It is, and was in 1999 at the time of Mason P writing in Emery Air Freight, a party to the unamended Warsaw Convention. The “close examination” of the United States cases on the unamended Warsaw Convention was as to their potential value, not their potential unreliability. This doubt as to the value of the United States’ jurisprudence may have contributed to the view taken by the primary judge that Aanestad and Hurley should be followed in preference to the overwhelming body of authority to which I have referred. The respondent’s submission also was to the effect that Mason P in Emery Air Freight was casting doubt on the United States’ authorities. I reject this submission.

78 The primary judge noted the decision of Knight DCJ in Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1. In that decision Knight DCJ had applied the authorities to which I have referred and refused to follow Aanestad and Hurley. In doing so Knight DCJ at 50 NSWLR 12[47] (correctly in my view) took from the text of the Warsaw Convention as amended by the Hague Protocol 1955 assisted by the overseas cases to which he referred that:

[T]he place of destination within the meaning of the Convention [is] the ultimate destination as determined from the contract evidenced by the ticket

79 Knight DCJ distinguished MacRobertson Miller. The primary judge said Knight DCJ was wrong to do so, in particular because he, Knight DCJ, did not refer to Oceanic Sun LineSpecial Shipping Company Inc v Fay (1987) 8 NSWLR 242 (Court of Appeal) and (1988) 165 CLR 197 (High Court).

80 It is therefore important to understand what the High Court in MacRobertson Miller did, and did not, decide and whether any of the judgments in Oceanic Sun Line bears on the disposition of the appeal.

81 The issue in MacRobertson Miller was whether a completed ticket issued to a prospective passenger for a flight from Perth to Port Hedland and return was chargeable with stamp duty as “an agreement or any memorandum of an agreement” within the Stamp Act 1921 (WA). In the resolution of that issue, it was of importance to understand whether there was a binding contract made by the issue of the ticket or one that was already in existence of which the ticket was a memorandum. In either of these circumstances, the ticket would have been dutiable. On the other hand, if the ticket was a written offer which was accepted by the conduct of the passenger by him or her either retaining the ticket or boarding the plane, the ticket would not have been dutiable: see the cases cited in argument at 133 CLR 127-128. Also, if the ticket contained no promises at all and could be seen as illusory, there would be no offered consideration and therefore no contract and, once again, the ticket would not be dutiable.

82 Neither the Warsaw Convention nor the Montreal No 4 Convention was relevant. Thus, there was no discussion of the place of contract formation in international air carriage covered by any relevant convention, and in particular the place of Art 3 para 2 in the assessment of what contract had been formed.

83 Barwick CJ, after setting out a description of the ticket and coupons and the carrier’s terms and conditions concluded that the carrier did not by its terms offer to assume any contractual obligation. The exemptions on the ticket “fully occupie[d] the whole area of possible obligation, leaving no room for the existence of a contract of carriage”: 133 CLR at 133. Thus, for Barwick CJ, a contract only came into existence by any actual carriage that might take place, in which case it would be on the terms identified in the ticket. Barwick CJ also made some more general statements as to contractual formation in circumstances of airline booking and travel. At 134 he said:

The issue of the ticket, in my opinion, is mainly a receipt for the payment of the fare, though it also stipulates an occasion when the fare may not be refundable though actual carriage has not ensued. The payment made on the making of the reservation ought, in my opinion, to be regarded as no more than the prepayment of the fare payable for an actual carriage performed. Having regard to the continguencies [sic] of airline operation it would be incongruous to infer the making of a promise to carry from the mere payment of the fare and its acknowledgement by the issue of a ticket. The ticket, apart from any specific terms it may contain, would not be regarded as entitling its holder to a place on a particular flight. It should be regarded as doing no more than denominate the carriage which, if performed, will earn the prepaid fare. If, as in the present case, the ticket contains terms of carriage, these will, given the performance of the denominated carriage, regulate the relationship of the parties during and in connexion with such carriage and thus their respective rights in relation thereto.

84 Whatever may be the legitimacy of the above propositions (and without intending to cast doubt on them) they are not (and indeed could not be) binding authority as to the formation of any particular contract. Further, they do not assist with the assessment of contract formation in relation to carriage under the Act and the Convention by reference to the terms and effect of Art 3 para 2. Nor do these propositions assist in ascertaining whether the acceptance by the respondent of the carriage offered by this ticket, at the latest, by boarding in Beirut crystallised the formation of a contract for the provision of carriage for the whole round trip or only the formation of a contract of carriage for each leg for which check-in had been completed.

85 Here, unlike the facts in MacRobertson Miller, the terms of the Gulf conditions provided for substantial legal obligations on Gulf. The acceptance of any offer in the ticket and terms, by picking up the ticket or boarding the plane in Beirut, can be seen to crystallise a contract, albeit executory in part as to the future, for carriage on the four sectors identified in the ticket, with the place of destination being Beirut: see Art 3.3.5 of Gulf’s general conditions. Further, nothing in the facts here or in the statements of Barwick CJ is any foundation to rebut the prima facie position directed by Art 3 para 2.

86 Stephen J focussed upon the timing and method of contract formation. After looking at various carriage and ticket cases he concluded that the ticket was no more than an offer capable of acceptance. Acceptance could be by the passage of a reasonable time to examine the ticket conditions or by boarding the plane. In either case, the ticket was not dutiable. Nothing said by Stephen J assists in gainsaying any proposition that the ticket in this case, after a reasonable time after issue or upon the respondent boarding at Beirut, evidenced a concluded contract for a round trip on Gulf’s usual terms and conditions with Beirut as the (agreed) place of destination for the purposes of the Convention.

87 Jacobs J was also of the view that the ticket was not dutiable. Like Stephen J, he analysed the ticket as an offer to be accepted. Like Barwick CJ, he also thought that the exceptions and exclusions negatived any contractual obligation to carry. My comments in relation to Barwick CJ and Stephen J therefore also apply to his Honour’s reasons.

88 Thus, I do not see how MacRobertson Miller can determine this case. The Convention, Art 3 para 2 has the force of law by reason of a law of the Parliament. Unless there is a basis, being evidence of a different agreement between the parties as to the place of destination, to rebut the prima facie position, there is a concluded contract and the contractual place of destination is as on the ticket. The time of bilateral formation between passenger and carrier can be accepted to be either a reasonable time after delivery of the ticket or upon boarding. Such acceptance, however, should be viewed as referable to the whole offer contained in the ticket – the round trip which the ticket describes and which the Convention treats as a concluded contract. Nothing in MacRobertson Miller provides a foundation to rebut the presumption in Art 3 para 2 and to require each flight or each group of flights covered by a check-in and boarding to be subject to a separate contract having a separate place of destination.

89 Nothing in Oceanic Sun Line in the Court of Appeal or the High Court affects the position. That was a ticket case in relation to an ocean cruise. The question at issue there, relevant for present purposes, was where the contract between the passenger and the carrier had been made. McHugh JA (with whom Glass JA agreed) distinguished MacRobertson Miller by reference to something Barwick CJ had said in MacRobertson Miller at 135:

… a promise to carry may be more appropriately made by a steamship company than by an airline operator. The marked degree of certainty on the one hand and of uncertainty on the other affords good ground for distinguishing the inferences which, apart from express provisions, might be drawn in the one case though not in the other.

90 In the High Court, MacRobertson Miller was distinguished: at 206-207 by Wilson J and Toohey J by reference to the facts there present and at 226-228 by Brennan J by reference to the facts, including the different width of the exclusion clauses.

91 Knight DCJ in Vertzyas was not in error in failing to deal with Oceanic Sun Line. That failure did not detract from his otherwise clear and powerful reasons.

The arguments of the respondent

92 The respondent relied principally on the proposition that MacRobertson Miller decided this case in his favour. For the reasons that I have given I reject this.

93 The respondent relied on Aanestad and Hurley for the proposition that the place of destination in a flight such as this was either the destination of each leg or the destination referable to any flights for which the passenger has boarded the plane. For the reasons I have given the place of destination is as identified on the ticket as part of the agreement of the parties, unless rebutted by material contradicting the ticket as evidence of the concluded contract and its terms. There are no such circumstances here. MacRobertson Miller does not provide any rule of law to the contrary.

94 The respondent submitted that the correct test was the “contemplated degree of continuity of the journey”, picking up what was said in Petrire v Spantax. In Petrire v Spantax the court was dealing with two ticket booklets issued by two carriers and the operation of the Warsaw Convention Art 1 para 3. The necessity to consider whether there was a single contract and to consider the time and issuance of the ticket booklets and the “contemplated degree of continuity of the journey being ticketed” came from the need to examine whether two ticket books were a single contract or two contracts. The Second Circuit Court of Appeals found them to be issued in one contract. The case does not assist the respondent.

95 The same can be said of Haldimann v Delta Airlines Inc 168 F 3d 1324 (DC Cir 1999) also relied on by the respondent in which there were multiple ticket books issued by different carriers that were held to be one undivided carriage and a single operation under Art 1 para 3. These cases on Art 1 para 3 do not provide authority for the proposition that the temporal breaks in the flights set out in the one ticket can be used as evidence to rebut the presumption that the contract and its conditions, including the identified place of destination, are found in the ticket.

96 The respondent cited cases and law dictionaries as to the meaning of the word “destination” in other contexts, including workers compensation cases about journey claims and s 92 cases involving more than one journey. With respect, none of these cases shines any light on the meaning and context of the word as used in the context of the Montreal No 4 Convention.

97 The respondent pressed an argument derived from the Convention, Art 4 dealing with baggage checks. Ordinary human experience may lead one to conclude that for a flight such as taken by the respondent from Beirut, his bags would have been identified in a manner to be collected conveniently at Sydney not Beirut. That can be accepted, but it is to be noted that a baggage check must only comply with the requirements of Art 4 para 1 if it is not “combined with or incorporated in” a passenger ticket that complies with Art 3 para 1. Thus, the likelihood (from ordinary human experience) that a baggage check or tag identifying “Beirut to Sydney” affixed or stuck on the passenger ticket which contains an identification that the place of destination is Beirut reflects neither inconsistency of operation of Arts 3 and 4 nor of their language. That Sydney may have been on the respondent’s baggage checks, that were in all likelihood combined with his passenger ticket, does not affect the interpretation of the contract of carriage of which the ticket is prima facie evidence. In any event there was no evidence or agreed fact before the primary judge about the respondent’s baggage. Also, Gulf’s general conditions contain definitions of “Baggage Check” and “Baggage Identification Tag” as follows:

“BAGGAGE CHECK” means those portions of the Ticket which relate to the carriage of your Checked Baggage.

“BAGGAGE IDENTIFICATION TAG” means a document issued solely for identification of Check Baggage.

98 There was no exploration of the question of the checking of the respondent’s bags and any checks or tags. Nothing more need be said, about this issue, save that the common sense notion that the respondent’s bags were tagged for convenient identification on collection in Sydney does not lead to any necessary tension with Beirut being the agreed place of destination for Arts 1, 3 and 28.

99 The respondent also relied upon the terms of Gulf’s general conditions. For the reasons I have given, I do not find those conditions rebut or vary the statement on the ticket that Beirut is the place of destination.

The question of any proper law

100 Neither the ticket nor Gulf’s general conditions of carriage contained a proper law clause. Apart from the respondent’s reliance on MacRobertson Miller as a governing local authority, neither party put any submission which turned on the need to identify any particular governing law. In places, the Convention directs one to a particular applicable law: see, eg, Art 21 para 1, Art 22 paras 1 and 4 and Art 28 para 2. In places, the Convention has its own legal regime limiting and defining liability: see, eg, Arts 17, 18, 19, 20, 21, 22 and 24. The construction and interpretation of the Convention takes place, of course, by reference to the principles of construction to which I have earlier referred, including the Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969. Here the law by reference to which the parties’ contractual intention is established is affected directly by the content of the Convention: see in particular Art 3 para 2. No one sought to prove any foreign law.

101 In Vertzyas Knight DCJ discussed the approach to ascertaining the contract and its contents in the context of the Warsaw Convention as amended by the Hague Protocol 1955. (The position of the Montreal No 4 Convention would be no different.) His Honour said at 50 NSWLR 17[74]:

To my mind the framers of the Convention did not intend that the existence of a contract of carriage for the purposes of the Convention should be determined by the application of the laws of an intermediate stopping place of the proposed international flight. Rather I consider that what was intended was that the existence of an agreement or contract of carriage should be determined in a universal fashion as to whether the airline had, in general terms, consented to transport the passenger and the passenger had, in general terms, consented to be so transported. Were I to hold otherwise it would amount to determining that there was no contract of carriage within the meaning of the Convention because of the application of some technical rules of the common law of a country where the alleged contract was not entered into, which was not the ultimate destination of the proposed flights and whose only connection with the matter was that one of the proposed intermediate stops was in its territory.

102 It is unnecessary to resolve finally all the various issues raised in this passage, given my view that MacRobertson Miller does not determine the outcome of this case. Whilst there is, if I may respectfully say so, significant force in what his Honour said, I would prefer to express the matter somewhat differently. If there were a contractual rule as part of the common law of Australia the application of which could be seen to be inconsistent with the operation of the Convention, as interpreted internationally, it may be that such common law would be implicitly overridden by the statute (that is the Convention having the force of law).

103 The Convention contemplates, of course, the operation of the domestic law of the forum in the Articles to which I have referred. Also, in assessing what evidence is admissible in the court seeking to ascertain the agreement of the parties as to the place of destination, local law may well apply as a matter of procedure, rather than having regard to foreign cases. However, to the extent that the Convention contains expressly or impliedly the proper approach to ascertain the conclusion and the contents of the relevant agreement that approach has the force of law (the Act, s25K) and conflicting principles of common law would give way: the Judiciary Act, s 80.

Orders

104 The respondent initially sought to impose conditions on any leave given that Gulf would not plead any time bar in relation to any proceedings brought in Lebanon and to assist in the case against the second defendant in the proceedings below. Those conditions were inappropriate if the Court had no jurisdiction. They were not pressed.

105 The questions posed to the primary judge should be answered as follows:

(A) Agreement for the carriage of the plaintiff from Beirut to Bahrain to Sydney to Bahrain to Beirut

(B) Not applicable as not argued

(C) No

106 In these circumstances, in my view, the orders of the Court should be:

(1) leave be granted to appeal from the orders of the District Court made on 14 August 2007;

(2) a notice of appeal be filed within 7 days;

(3) the appeal be allowed;

(4) the said orders of the District Court be set aside and in lieu thereof order the proceedings against the first defendant be dismissed with costs; and

107 HODGSON JA: I agree with Allsop P.

108 CAMPBELL JA: I agree with Allsop P.

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Citations

Gulf Air Company GSC v Fattouh [2008] NSWCA 225

Most Recent Citation

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Cases Cited

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Statutory Material Cited

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MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55

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Cited Sections

CITATION:	GULF AIR COMPANY GSC v FATTOUH [2008] NSWCA 225
HEARING DATE(S):	22 July 2008
JUDGMENT DATE:	24 September 2008
JUDGMENT OF:	Allsop P at 1; Hodgson JA at 107; Campbell JA at 108
DECISION:	(1) leave be granted to appeal from the orders of the District Court made on 14 August 2007; (2) a notice of appeal be filed within 7 days; (3) the appeal be allowed; (4) the said orders of the District Court be set aside and in lieu thereof order the proceedings against the first defendant be dismissed with costs; and (5) the respondent pay the appellant’s costs of the appeal and application for leave to appeal.
CATCHWORDS:	CARRIAGE BY AIR – carriers’ liability – Warsaw Convention – Montreal Convention – jurisdiction – meaning of “place of destination”
LEGISLATION CITED:	Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Judiciary Act 1903 (Cth) Stamp Act 1921 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Aanestad v Air Canada 390 F Supp 1165 (1975) Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 Baah v Virgin Atlantic Airways Ltd 473 F Supp 2d 591 (2007) Brown Boveri (Aust) Pty Ltd v Baltic Shipping Co (1989) 15 NSWLR 448 Butz v British Airways 421 F Supp 127 (1976) Butz v British Airways 566 F 2d 1168 (1977) Croteau v Air Transat AT Inc [2007] QCCA 773 Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202; 140 FCR 296 Emery Air Freight Corporation v Merck Sharp and Dohme (Australia) Pty Limited [1999] NSWCA 415; 47 NSWLR 696 Gayda v LOT Polish Airlines 702 F 2d 424 (1983) Grein v Imperial Airways Limited [1937] 1 KB 50 Haldimann v Delta Airlines Inc 168 F 3d 1324 (1999) Hurley v KLM Royal Dutch Airlines 562 F Supp 260 (1983) Hurley v KLM Royal Dutch Airlines 602 F Supp 1249 (1985) In re Air Crash Disaster Near Warsaw Poland, on May 9, 1987 760 F Supp 30 (1991) In re Alleged Food Poisoning Incident, March, 1984 770 F 2d 3 (1985) In re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 Klos v Polskie Linie Lotnicze 133 F 3d 164 (1999) Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 (1987) Lee v China Airlines 669 F Supp 979 (1987) MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 8 NSWLR 242 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Ong v Malaysian Airline System Berhad [2007] HKCU 1141 Ong v Malaysian Airline System Berhad [2008] HKCU 441 Petrire v Spantax SA 756 F 2d 263 (1985) Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189 Qureshi v KLM Royal Dutch Airlines (1979) 102 DLR (3rd ) 205 Re Air Crash Disaster of Aviateca Flight 901 near San Salvador, El Salvador on August 9, 1995 29 F Supp 2d 1333 (1997) Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd [1961] AC 807 Sopcak v Northern Mountain Helicopter Serv 52 F 3d 817 (1995) Swaminathan v Swiss Air Transport Company 962 F 2d 387 (1992) Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1
PARTIES:	GULF AIR COMPANY GSC Ahmed Bader Eddin FATTOUH
FILE NUMBER(S):	CA 40596/2007
COUNSEL:	Appellant: M Leeming SC/ E Peden Respondent: B Gross QC
SOLICITORS:	Appellant: Norton White, Sydney Respondent: Carroll & O'Dea, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6220/06
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	14 August 2007