Luis Jarvis et al v American Airlines Inc

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ANTIGUA & BARBUDA
IN THE COURT OF APPEAL
HCVAP 2005/026
BETWEEN:
LUIS JARVIS
t/a L& J PRODUCTIONS
Appellant
and
AMERICAN AIRLINES INC
Respondent
Before:
The Hon. Mr. Hugh Rawlins Justice of Appeal
The Hon. Mde. Ola Mae Edwards Justice of Appeal (Ag.)
The Hon. Mr. Errol Thomas Justice of Appeal (Ag.)
Appearances:
Mr. Steadroy Benjamin for the Appellant

Ms. Veronica Thomas for the Respondent

2007: December 5, 6.

Civil Appeal – Breach of Contract – Transport by air – Warsaw Convention – delay – Article
19 of Warsaw Convention – single/undivided carriage – Article 1(3) – Statute barred –
whether limitation period had expire – Article 29 – Limitation Act 1961 – Whether loss was
suffered
An eight member band from Santo Domingo to Antigua via Puerto Rico purchased tickets
for their journey from the respondent company. At the time of purchase it was clearly
expressed that the band was to arrive in Antigua at a scheduled time on the 18th July 1999
as they had to perform on that same night. However on that day in question the flight was
over booked and only four members were able to travel on that particular flight while the
other four traveled on a later flight that same night. As a result there was a delay which
had the latter four members arriving after the show started. The appellants argued that that
was a breach of contract and as a result loss was suffered. More importantly the claim was
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filed on the 19th November 2004 and the amended statement of claim filed on the 16th
June 2005. Those dates are essential to the grounds of appeal.
Held: dismissing the appeal and awarding costs to the respondents. Costs being two-thirds
of the costs in the High court.
Winter v Biman Bangladesh Airlines [1999] US Dist Lexis 9849 distinguished
Wolgel v Mexicana Airlines [1987] US App Lexis 8033 distinguished
Pakistan Arts And Entertainment Corp. v Pakistan International Airline Corp. 232 A.D
2d. 29 distingusihed
Phillips v Air New Zealand [2002] EWHC 800 (Comm,) applied
JUDGMENT
[1] THOMAS, J.A (AG.): On 29th November 2005 Master Cheryl Mathurin struck out a claim
by the claimant/appellant against the defendant/respondent on the basis that the relevant
limitation period had expired under the Warsaw Convention. The claim related to the
transport by air of an eight member band from Santo Domingo to Antigua via Puerto Rico.
The airline involved was owned by the Defendant and/or its affiliate American Eagle.
[2] The essential facts which are not in dispute are that eight tickets were purchased by the
claimant/appellant for the transport of the eight member band to Antigua and the claimant
contends that at the time of purchase it was made clear to the defendant/respondent that it
was essential that the band arrived in Antigua on the scheduled time on 18th July 1999 in
order to perform at a show later on the same night.
[3] A difficulty arose when the band arrived in Puerto Rico, in that the Defendant’s servants or
agents announced that the scheduled flight, being AA 5502, was over booked and as a
result only four members of the band were put on the flight. The other members were put
on a later flight on the same night but that flight arrived much later after the show started.
The claimant/appellant contends that the action of the defendant/respondent constituted a
breach of contract and as a result he suffered loss.
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[4] Central to this matter are the dates of 18th July 1999, being the date of the scheduled flight,
19th November 2004, being the date of the filing of the claim and 16th June 2005, filing of
the amended statement of claim.
[5] The striking out of the claim by the learned Master gave rise to this appeal. The grounds of
appeal refer to and question the following findings:
1. That the Warsaw Convention relating to carriage by air applied in the
circumstances of the case.
2. That as a result thereof the action herein is statute barred, the relevant
limitation period of two years from the date of arrival at the destination or
from the date on which the aircraft ought to have arrived having expired
on or about 4th September 2001.
Outline of the Convention
[6] The Warsaw Convention (“the Convention”) is an international agreement which governs
carriage by air. In the Carriage By Air (Colonies Protectorates and Trust Territories)
Order 1953 (“the Order”) the Convention is defined to mean the unification of certain
rules relating to international carriage by air. These rules are embodied in Articles of the
Convention.
[7] For present purposes the basic provisions of the Convention are as follows: Article 1(1)
says that the Convention applies to all international carriage of persons, luggage or goods
performed by aircraft for reward. The Article goes on to provide that the Convention
applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
[8] In Article 3 (3) it is provided that a carriage to be performed by several successive air
carriers is deemed, for the purposes of the 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.
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[9] Part 11 of the Convention (Articles 3 to 16)) deals with the obligation of the carrier to issue
passenger and luggage tickets and related issues.
[10] Part 111 of the Convention (Articles 17 to 30) deals with the liability of the carrier. In
particular Article 19 provides that the carrier is liable for damage occasioned by delay in
the carriage by air of passengers, luggage or goods. Article 29 also provides that the right
to damages “shall be extinguished” if an action is not brought within two years reckoned
from the date of arrival at the destination.
Applicability of the Convention
[11] It is common ground that the Warsaw Convention is a constituent of the Laws of Antigua
and Barbuda as it is the first Annex to the Carriage [By Air (Colonies, Protectorates and
Trust Territories Order 1953) ]. This Order in turn is embodied in Revised Laws of Antigua
and Barbuda under the Chapter heading of Civil Aviation. However the further question is
whether the convention applies to the case pleaded.
[12] In this regard it is the contention of learned counsel for the appellant Mr. Steadroy
Benjamin that the Convention does not apply since, relying on the holding in Phillips v Air
New Zealand,1 no boarding passes were issued to the four band members who did not
travel on the flight on which they were booked. Therefore, according to Mr. Benjamin,
there was no contract of carriage.
[13] For the respondent learned Counsel, Ms. Veronica Thomas, submitted that the carriage by
air from Santo Domingo to Puerto Rico and then Antigua was a single contract. She
submits further that the over booking, resulting in delay in the carriage gave rise to a
cause of action under the Convention. She relies on the cases of Winters v Biman
Bangladesh Airlines2 and Wolgel v Mexicana Airlines3.
1 (2002) EWHC 800 (Comm,)
2 1999 US Dist Lexis 9849
3 1987 US App Lexis 8033
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[14] Circuit Judge Flaum in giving the opinion of the United States Court of Appeal for the
Seventh Circuit in Wolgel v Mexicana Airlines noted, inter alia, that at the Second
Diplomatic Conference on Private Aeronautical Law held in 1929 the Italian delegate in
commenting on Article 21, the predecessor of Article 19, said that the Article did not
provide a remedy for non-performance.
[15] The point of critical importance here is that while the four band members did not travel on
flight AA 5502 they were transported on another flight by the respondent’s carrier on the
same night. This fact is both pleaded and admitted by learned Counsel for the Appellant at
the hearing of this appeal.
[16] This lets in Article 19 of the Convention which as noted above, imposes liability in
damages for delay caused by the carrier.
[17] In Winters v Biman Bangladesh Airlines, supra, the claimant was denied boarding of the
respondent’s carrier on a return leg of a round trip from New York to New Delhi. The
resulting delay was 45 days. This delay was held to be within purview of Article 19 of the
Convention.
[18] In that case, United States District Judge Barbara S. Jones in giving the opinion of the
Court made a number of observations. First she noted that the purpose of the Convention
is to create an international body of uniform air law bending on the forum. Second, that
claims arising from so-called ‘bumping’ are within Article 19 of the Convention.
[19] The matter of claims arising from bumping was illustrated in Wolgel v Mexicana Airlines
where the claimants did not succeed since they sought damages for the bumping itself,
rather than for the incidental damages due to their delay.
[20] Also in Pakistan Arts and Entertainment Corp. v Pakistan International Airline Corp.4
there was a two day delay of the respondent’s flight due to defective equipment as a result
4 232 A.D 2d. 29
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of which the Plaintiffs were unable to complete the remainder of the journey to New York
on the respondent’s airline. Their New York show was therefore cancelled. The Court held
that damages resulting from the delay in transporting a passenger are of a type permitted
to be recovered under the Convention.
[21] The nature of a delay within the meaning of the Convention is fully illustrated by the
foregoing and I am of the opinion that on the pleadings there was a delay that is
encompassed by Article 19 of the Convention. I am of the further view that the carriage of
the musicians by successive carriers is one undivided carriage within the meaning of
Article 1(3) of the Convention.
[22] I would therefore affirm the learned Master’s ruling on this point of the applicability of the
Convention.
Action being statute barred
[23] This ground of the learned Master’s ruling only has to be re-stated to be affirmed.
[24] It is common ground that the proceedings were instituted on 15th November 2004 and an
amended statement of claim was filed on 16th June 2005.
[25] In the Pakistan Arts and Entertainment Corp. case, supra, Mr. Justice Florio noted, in
the context of the Convention that any claims that may be made are governed and limited
by its language. In this regard the limitation on claims is regulated by Article 29 which
provides that:
“(1)The right to damages shall be extinguished if an action is not brought within
two years reckoned from the date of arrival at the destination or from the date of
arrival at the destination, or from the date on which the aircraft ought to have
arrived, or from the date on which the carriage stopped.
(2) The method of calculation shall be determined by the law of the Court seized
of the case.”
[26] The effect of Article 29 of the Convention was explained and applied in Phillips v Air
New Zealand. In this case the claimant was injured in a wheel chair accident while
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boarding the defendant’s carrier. The defendant’s agents were involved. The claimant
commenced proceedings seeking damages within the 3 year prescribed by the Limitation
Act 1961 but outside the two year period specified in Article 29 of the Convention. It was
held that the action was commenced 2 years after the aircraft arrived or should have
arrived at its destination and as such her action was extinguished by virtue of Article 29 of
the Convention.5
[27] On the uncontested facts of the case calculation of the time does not even arise. I would
therefore affirm the Learned Master’s ruling on the question of the limitation on the claim.
[28] Before concluding the matter I consider it necessary to comment on a decision of this Court
on 9th October 2005 involving the same parties as in the case at bar. In that case only two
persons of a group of eight were transported to Antigua as scheduled on the respondent’s
carrier. This stands in contrast to this case where all the members of the group were
transported to Antigua, albeit late for their performance. The cases are therefore
distinguishable.
Result
[29] The appeal is dismissed and in terms of costs, the appellants must pay the respondent
two-thirds of the costs in the High Court.
Errol L. Thomas
Justice of Appeal (Ag.)
I concur. Hugh A. Rawlins
Justice of Appeal
I concur. Ola Mae Edwards
Justice of Appeal (Ag.)
5 [2002] EWHC 800,801, 803.(Comm).
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