§ 5.33 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Abinger.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clauses 1 to 3 agreed to.
§ Clause 4.—[Limitation of liability.]
(4) The Minister of Aviation may from time to time by order made by statutory instrument specify the respective amounts which for the purposes of the said Article 22, and in particular of paragraph (5) of that Article, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article.
§ LORD SHACKLETON moved to leave out subsection (4). The noble Lord said: This is an Amendment of an interrogative character, in order to obtain an explanation, which has not yet been given in either House, of why the value of 125,000 gold francs or 300,000 new gold francs, whichever it may be, is to be translated into an equivalent by the Minister as opposed to the courts, and why he has to make a statutory instrument to do this. This seems to be a clumsy way, as the value of money may change. Are we to understand that, if there was a devaluation or sudden change, the Minister would promptly have another statutory instrument to notify the value?
§ Since no steps are taken to inform persons at airports about the limit of liability, I do not see any advantage in doing this. It may be that the Government intend to take such steps. But I would instance the case of a friend of mine, who rang up a well-known air line and spoke to a very helpful young man, who simply was unable to answer him on this point. He went to look up the "book of words" and returned to say, "I think there is a limit of liability, though it seems rather strange to me, as it says 'if you can prove negligence,' and I do not know how you do that if you are dead, though I suppose that your heirs can do it. Then there is this mysterious amount, but I do not know what that means."
§ If this is the state of the law for air travellers, I do not know what advantage it is for the Minister to have power to clarify it any further, but it may be that he wants power to enable such notices to be posted. I understand that in the past, on the day on which judgment was given the court arrived at the proper value of compensation. Though I am no lawyer, I cannot see why that is not a satisfactory procedure. The fact that this precedent has been applied elsewhere does not remove the need for the movers and supporters of this Bill—as we know, mainly the Government—to justify it. I beg to move.
Leave out subsection (4).—(Lord Shackleton.)
§ LORD DENNING
Does not this subsection contravene the Convention itself? The Convention says that the conversion has to be made at the time 926 of judgment, and the court can, and does, fix the rate of exchange at the date of judgment by getting evidence from market brokers, if need be. There is no difficulty about it. If the Minister is to fix the amount by his order, it may not be at the date of judgment, and it seems to me quite a possibility that the proposed Clause 4 will contravene the Convention itself.
§ LORD CHORLEY
May I add to that that this is an alteration in the old Act, which provided that the matter is to be dealt with at the rate of exchange prevailing on the date on which the amount of damages to be paid by any carrier is to be paid? As the noble and learned Lord has pointed out, this is the present method and it works perfectly satisfactorily. The arrangements which we have here seem to contravene the Convention itself. Obviously, the Minister cannot be expected to make an order on every occasion when a judgment is given in a case of this kind. He is going to do it only from time to time and it may well be that a substantial lapse of time will occur, which may give rise to a considerable injury to the parties involved, especially when rates of exchange are moving fairly rapidly, as we know they do in some countries.
It appears to me that this subsection has been copied from the Merchant Shipping Act which passed into law two or three years ago, but that Act dealt with a very different point, because there we have a total limitation of liability established on the basis of the tonnage of a ship, and different claimants are likely to make their claims at different times. Therefore, it is not unreasonable that we should have a rate of exchange fixed by the Minister in regard to a series of claims of that kind, which are going to come in over a period of time; but here, where each individual case is adjudicated by the court on a particular date, it seems to me that the method which was employed in the 1932 Act is obviously the proper and equitable one and a serious mistake is being made in this Bill in introducing this new system.
I have listened with keen interest to the arguments deployed by noble Lords in support of the Amendment of the noble Lord, Lord 927 Shackleton. He suggested, in an interrogative way, that we should drop subsection (4) from Clause 4 of the Bill. The noble Lord, Lord Chorley, I felt was less interrogative. May I briefly explain to your Lordships why the Government, on the whole, feel that it would be a pity to drop this subsection from the clause?
First of all, I should like to make one point clear and it is that this subsection is not in any way essential as far as the ratification of the new Convention is concerned: Parliament could accept the proposed Amendment and we could still ratify the Convention. In that case, why do we feel that the subsection should be retained? I think there are a number of reasons for that, but essentially they all come to much the same thing; that is to say, that, in general, we feel that this small procedural or mechanical change—and it is, I think, a small one—is for the convenience of the general public, the man in the street, be he lawyer or private citizen, and the man in the air, or in some cases the man about to be in the air.
As your Lordships know, the maximum liability to the carrier will be raised under the new Convention to the sum of 250,000 Poincaré gold francs, around £6,000; that is so far as passenger liability is concerned. That sum is expressed in Article 22 (5) of the new Convention, as I think it was in the old, in terms of what is known as the Poincaré franc currency unitconsisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred.I must confess that I rather like the Poincaré franc; it has a nice old-fashioned ring about it, like the Maria Theresa dollar.
Now, when a case has arisen under the existing Convention there has been no simple predetermined way in which the public, as well as the parties to the case and their lawyers, could find out the current sterling equivalent of the Poincaré franc. Solicitors and other interested parties have fished around a bit in some ignorance, but in the end they have tended to write to the Bank of England, who have supplied them with the sterling equivalent to the so-called fixing price—that is, the price fixed by five London bullion dealers at 10.30 each morning.
928 The Government are not convinced that this is really a terribly good method. The fixing price here may differ considerably from the price obtaining in other gold markets, such as Paris, Zurich or, indeed, Hong Kong. It is true that litigation has not arisen on this point, but we feel that it might. Moreover, should there be any difficulty, it would presumably be necessary to prove the point in court by calling witnesses either from the bullion market or from the bank or possibly the Treasury. Under the proposed subsection there should not be any difficulty in ascertaining the precise sterling value at any time of the limitation amounts expressed in Poincaré gold francs, since that will be declared by the Minister of Aviation by statutory instrument.
What advantages do we think the suggested new method would have? First, it would make matters generally more convenient and certain for all concerned, and everybody would know where he stood. There would, for example, be no need to call witnesses in court to prove the precise value of the franc on any particular day. This is not altogether an academic matter, as a number of noble Lords have already remarked, since the fixing prices may swing quite dramatically. For example, at the time of the recent spectacular but temporary rise in the price of gold the equivalent of 250,000 Poincaré francs went up by some £500; that is, about one-twelfth of the proposed new maximum sum for maximum liability.
Another reason why we feel this subsection should be retained is that paragraph (5) of Article 2 of the new Convention provides for the rounding up or down of Poincaré francs when converted into national currencies. This subsection would enable the Minister to fix the liability limit for a passenger at a round sum of, say, £6,000, given the present price of gold. At 10.30 a.m. to-day the sterling equivalent of 250,000 Poincaré francs at the fixing price worked out at £5,954 7s. 2d. Surely it is more convenient for everybody to have a good round sum. In our Second Reading debate the noble Lord, Lord Shackleton, suggested—and he came back on this point to-day—that it would be a good thing if notices were put up at airports explaining the rights of intending air 929 travellers and the liabilities of air transport companies. The average traveller would be completely bemused by detailed references to the Poincaré franc. Surely it is much more convenient if somebody going to an airport wants to get personal insurance for himself if he is starting from a definite floor of, say, £6,000 rather than from some indefinite floor of Poincaré francs.
I suppose that in the event of litigation, if the Minister were not to fix the precise sum in the way suggested, courts could conceivably round up the sums themselves; but then different judges might fix different round sums. All in all it seems that the statutory instrument procedure as now suggested is the best one. Perhaps I might just add that a provision for a statutory instrument of this sort is in fact included in the Merchant Shipping Act, 1958, and has, so far as I know at least, caused no difficulty whatsoever.
Of course—and here I think I come to the point which the noble and learned Lord, Lord Denning, touched upon—the position might be difficult in the event of some really big change in the gold equivalent of sterling, following, say, a major revaluation. The value which counts, as the noble and learned Lord pointed out, is the value at the date of the judgment and not at the date of the accident. In the event of a sudden revaluation, it would presumably be incumbent on the Minister to amend his order without delay. No doubt plaintiffs would be quick to point out to the courts that the existing order was obsolete, and the courts, in the interests of justice, would presumably be willing to postpone the judgment until the order had been brought up to date. I can, give the Committee the assurance that it is my right honourable friend's intention to have an amended order always ready in draft, so that only the new figure would have to be inserted, and this could be done immediately. As for the point within, that point made by the noble and learned Lord, I think it is answered by the rounding up. Unless there is a major swing, resulting, say, from revaluation, it is met by the provision for a round figure.
In all the circumstances, the new procedure foreseen under this subsection seems to the Government to be an im- 930 provement on the existing rather fuzzy method. I cannot forecast what my noble friend in charge of the Bill will have to say—although I hope that my lines of communication with him are fairly close—but from the Government side I would express the hope that the noble Lord might possibly see his way to withdraw this Amendment.
§ LORD OGMORE
I came here to-day without any knowledge of this situation as I was abroad at the time of the Second Reading. I have listened with a quite open mind to the argument. I must say that I am puzzled by the response of the noble Earl to the point put up by the noble and learned Lord, Lord Denning. If the Convention itself declares how the conversion shall be made, which, so far as I am aware, it does in Article 22 (5), how then can we import another method of so doing? That, I gather, is the tenor of the objection to the noble and learned Lord, Lord Denning. It did not seem to me—perhaps I did not listen with sufficient attention—that the noble Earl answered that point. If we have a method of conversion, it is difficult to see how we can import another one which may be contradictory.
Suppose there is a case, following an accident, and the court decides against the carrier? To what is the court to address itself? Is it to address itself to the method laid down in the Convention, or is it to address itself to the different method, the stereotyped method, now intended by the noble Lord in charge of the Bill? This is not a Government Bill; it is a Private Member's Bill. What will be the judge's position? It is all very well to say, "We will have one in the drawer." The Long Recess gets started, and at least three months will elapse before Parliament will be able to consider it; and in that three months there may have been considerable variations. Has there ever been a case before in Parliament where a Minister has got up, particularly on a Private Member's Bill, and said: "It is all right; we are going to adjust this by always having in the Minister's drawer a draft order, an amending order, which we will slip in to deal with any sudden fluctuations in price and exchange"? I should have thought that the object of putting the 931 gold franc in the convention was to avoid that sort of thing. In other words, you are having one particular standard which is quite well known, if I may say so, in the air world, which may fluctuate to some extent, but which will be able to be adjusted in the various countries in which this Convention applies.
It is about ten years since I dealt with this question of francs. Unless I am mistaken, I believe—and I think the noble Earl will find this is so—that even in this country our agreements with the carriers are expressed in gold francs. The Post Office expresses its contract for freight—that is, for air-mail—in gold francs. It is ten years ago, and my memory may be playing me false.
§ LORD OGMORE
It was when I succeeded the noble Earl as Minister. In other words, the Postmaster General of this country makes his arrangements with B.O.A.C. and B.E.A. for the carriage of freight in gold francs, and not in pounds sterling. So it seems as if there is some virtue in this method. In other words, for many years in the air world the gold franc has been regarded as the standard. I think we should be very ill-advised in a Private Member's Bill to alter this system, which has been so long in operation, and bring in a new method which may conflict with the discretion of the courts, and the ability of the courts to make a calculation.
I can assure the noble Earl that I have every confidence in the courts of this country. It is not at all outside the sort of things the Commercial Court is dealing with every day of the week. It is child's play for the courts of this country to convert francs into pounds: they are doing much harder sums than that, I can assure you. The noble Earl need not worry about that. He is not going to save great complexity over that. Therefore I think the Committee would be well-advised, before accepting the view of the Minister, to ask him to make a much stronger case than he has done; otherwise I think we should be ill-advised in not accepting the Amendment.
§ 6.16 p.m.
§ THE LORD CHANCELLOR
May I answer the points that have been put by the noble Lord, because I am anxious to 932 carry him with me, apart from the question of the result of the Amendment? The Convention does not require the rounding up of the figure, up or down, to be done by the Judiciary. I think that is the answer to one of the difficulties of my noble and learned friend Lord Denning. If the noble Lord, Lord Ogmore, would look at Article 22, paragraph (5), on page 13, he will see that it says in the second sentence:These sums may be converted into national currencies in round figures".Therefore, it can be done by the Judiciary, or it can be done by ministerial order.
I think the next point that was worrying the noble Lord, Lord Ogmore, was that the ministerial order might be delayed because Parliament was not sitting. If he will look at subsection (4) he will see that it says:The Minister of Aviation may from time to time by order made by statutory instrument specify the respective amounts which for the purposes of the said Article 22, and in particular of paragraph (5) of that Article, are to be taken as equivalent …and so on. The order does not require Parliamentary procedure and therefore that point goes. Really one comes down to the question of convenience; whether it is more convenient (and this is a point which my noble friend Lord Jellicoe argued) to have a fixed sum or a differing sum. Clearly it is within the intention of the Convention that there should be a fixed sum in round figures; that there should be a rounding-off.
The noble Lord, Lord Ogmore, will know very well, as will my noble and learned friend Lord Denning, that what we are doing here is the process, so well-known to us in this country, of making our municipal law agree with our obligations under the Convention. I have indicated that we are doing that, and it then becomes a matter of convenience. I have considered this point very carefully, in view of the question raised on Second Reading, and it seems to me infinitely more convenient in the ordinary way, when you have a minimal swing in the price of gold, that the plaintiff should know that he gets £6,000 rather than £5,800 one day and a different figure the next. I am taking the example of the price on January 1 of this year, when the equivalent was £6,017. On the other hand, it might 933 swing the other way. I think it is much better that people should know they will get £6,000.
A different situation arises if you have devaluation, or something of that kind. You have to provide for that, and that is why my noble friend Lord Jellicoe stressed that that would always be in mind, and that if there was a considerable swing there would be a new order. I think one wants to try to give as much certainty as one can. The noble Lord, Lord Shackleton, indicated—and we shall come to that again—how important it is to let the matter be known. I think he will agree that it is much easier to say that there will be a round figure of £6,000 which will be the limit, rather than one day £5,874 7s. 2d. and the next day £6,100. I consider that this is the more convenient way and I hope noble Lords will not press the matter. If there is any special aspect that we can consider I shall be pleased to consider it, and I am sure my noble friend in charge of the Bill would be pleased to consider it. But I do ask them to accept that what we are trying to do is to make it as convenient as possible.
§ LORD CHORLEY
The words of Article 22 (5) areaccording to the gold value of such currencies at the date of the judgment.Surely had the Minister laid an Order under subsection (4) some time before, it would not be the date of the judgment. It does not seem to me to come within Clause 5. As the whole of Clause 5 is governed by this Convention which is enacted in subsection (1) in Clause 4 of the Bill, would it not be arguable that the Minister's order was outside the terms of the Act and therefore not effective?
§ THE LORD CHANCELLOR
I do not think so. I considered that point and I take the opposite view. I will willingly have another look at it before the next stage of the Bill, but a "man convinced against his will is of the same opinion still". It is a point in law. I do not think there is any ground for the fear of the noble Lord, but any point he expresses I am prepared to consider. But I am not prepared to drop the clause. I think the law is all right, and it is for the convenience of passengers.
§ LORD SHACKLETON
I do not think your Lordships have really been convinced by either of the speeches we have had from the Front Bench, and we wonder rather whether the sponsor of the Bill might not be a little more pliant than the Government, who stated they are not willing to drop a clause in his Bill. The picture that the noble Earl, Lord Jellicoe, gave of the Minister with the drafted order, ready in the drawer to be pulled out at the crucial moment, suggests that there might be a certain delicacy in the timing. What happens if he brings it out at a time he thinks is convenient in relation to some case that is going before the court, only to find another violent swing on the very day on which judgment is given?
§ THE LORD CHANCELLOR
I can tell the noble Lord that if there is any question of a violent swing on the day, the plaintiff's counsel would apply to the judge for an adjournment so as to give time for a further order. It could quite easily be done if that rare possibility were to occur. We have considered that.
§ LORD SHACKLETON
That being so, it is suggested that an even more complicated procedure should be performed. Surely the existing one which the noble Lord, Lord Denning, described works quite well and is perfectly simple. One does not want to make heavy weather of it, but it seems a case where the Government Department concerned and the draftsmen, in an endeavour to be helpful and to produce something tidy, may possibly have gat themselves into further trouble. I do not know whether the noble Lord, Lord Abinger, feels disposed to be conciliatory on this matter.
§ LORD ABINGER
I was not commenting on this Amendment. I should like to say at once that those of us who sponsored this Bill realise that it deals with a complicated subject, and we therefore seek all possible advice and constructive criticism which noble Lords wish to make in order to make the Bill a better one. That is the spirit in which I listened to the arguments, and I am grateful to noble Lords for their comments. On a Bill of this nature I must be guided to a large extent by the views expressed on behalf of Her 935 Majesty's Government. They have explained, through the noble and learned Viscount, the Lord Chancellor, and the noble Earl, Lord Jellicoe, a point of view which had occurred to me, and they have explained it in rather clearer language than I could hope to command. I think this issue is quite a simple one: are we going to interpret the value of the Poincaré francs by statutory order or are we going to take what I consider to be a rather nebulous, fluctuating, differing, uncertain and varying sterling value of gold day by day in different bullion markets?
May I just give an example? I tried to find out the value of 250,000 Poincaré francs and I had the greatest difficulty in doing so. To get any sort of authoritative ruling, my informant had to go to the Treasury itself, and the information given was that 250,000 Poincaré francs were worth £5,868 3s. 1d. in the bullion markets on January 1 last and that to-day they would be worth something quite different. These fluctuations are large ones. The amount fluctuates by over £500 on the bullion markets. So I cannot help feeling that it would be a convenience to the public, to litigants under this measure, and to their legal advisers, if they had some clear-cut, statutory definition of the sterling value.
§ LORD OGMORE
May I ask the noble Lord whether he is aware of other countries who are signatories and who have done the same thing? I do not know whether the Spanish Government is a signatory. If it is, has it expressed in a decree what the peso value would be and how it compares with the Poincaré franc value?
§ LORD ABINGER
I think, to begin with, that the rate is not in the Hague Protocol at all. I am afraid I cannot say what they have allotted. I must say that my interpretation of Article 22 (5), where it saysThese sums may be converted into national currencies in round figures.is that that could be done only by a statutory order or by a Bill. I do not think there are any other means of converting a unit of currency like this into a national currency officially, and I read this Article as actually encouraging the particular action which the noble Earl, 936 Lord Jellicoe, has suggested. But so far as I am concerned, of course, I do not regard this subsection as the most important subsection in the Bill, and I should be only too willing to be guided by the feeling of the House with regard to omitting it or opposing the Amendment.
§ On Question, Amendment negatived.
§ Clause 4 agreed to.
§ Clause 5 [Time for bringing proceedings]:
§ LORD CHORLEY moved to leave out Clause 5. The noble Lord said: I beg to move the Amendment standing in the name of myself and that of my noble friend Lord Shackleton, which is to omit this clause from the Bill. Presumably the object of the clause is to put the captain of the airship or other person into the same position as the carrier himself, so that a person who had a cause of action, having got it limited as a result of the application of the limitation clause, could not then carry it over against the servant of the carrier. I can appreciate that there is some reason for doing this, but it does not seem to me that it is at all a conclusive reason, in that the cause of action against the servant of the carrier might be a different one from that against the carrier himself. That is particularly so in the case of misconduct; the carrier is not responsible for misconduct within the scope of the servant's employment unless he was privy to it. Nevertheless it would, as I read this clause, come within the limitation established by the clause, so that the servant would in effect be getting away with something which on grounds of justice and equity he certainly would not be entitled to. That seems to me to be the main argument against accepting this clause.
§ There are two other arguments, one a rather technical one. In my submission, the clause is not at all clearly drafted and contains an ambiguity which might be quite serious in the practical circumstances of an actual case. If the noble Lord will look at subsection (1) of Clause 5, he will see that it refers to a number of dates which are to be taken into account in reckoning the period of limitation. It says it is to be reckoned from the date of arrival at the destination or from the date on which the aircraft ought to 937 arrive—presumably intending to deal with the case where the aircraft is lost—or from the date on which the carriage stopped. The date on which the carriage stopped might be a different date from the date on which the aircraft ought to have arrived, and that seems to me to be a patent ambiguity in the wording of the subsection. It may be that this is a wrong view of the matter, but I should have thought that was a patent ambiguity, and as the clause stands we just cannot accept it.
§ The other argument against this clause is that it establishes a period of limitation which is a different one from the period of limitation established by our own limitation Acts in this type of case, which would be three years, and it is unfortunate that there should be all these different periods of limitation. They give rise in solicitors' offices to a great deal of difficulty, and in my own experience I have known cases lost because of mistakes being made. When you get down to two years it is quite a short time. Moreover, this clause establishes a second two-year period of limitation in regard to a possible right of contribution as between tortfeasors, which is dealt with in subsection (2). While it may be arguable that there is a case for bringing the position of the servant into line with his employer in respect of the two-year period, it does not seem to me there is any case at all for establishing a similar limitation in regard to the right of contribution.
§ THE LORD CHANCELLOR
I am interrupting only in order to be helpful. I would point out that the effect of the subsection is really to give effect to a judgment of my noble and learned friend Lord Denning when he was in the Court of Appeal, in which he and my noble and learned friend Lord Morris of Borth-y-Gest took a different view from the view taken by my noble and learned friend Lord Birkett in an earlier case, and decided that the date from which the period of limitation in an action of recourse runs was the date of the judgment of the first plaintiff. We respectfully accepted the view of my two noble and learned friends and put in this subsection in order to make it quite clear that it was from the date of the judgment and there could be no dispute about it. I think the noble and learned Lord can take it, so far as this is con- 938 cerned, that it is a sound clarification. I wanted only to explain the position.
§ LORD CHORLEY
I am grateful to the noble and learned Viscount. I should like, not having looked at the case to which he refers, to consider what he has just said in respect of this particular part of my argument. But it is only one of three reasons why I submit to the House this clause ought not to be part of the Bill, and much the most important of them is the first: that this definitely confers upon the peccant servant who is guilty of misconduct an advantage which I should have thought he certainly ought not to have, and for those reasons I beg to move.
Leave out Clause 5.—(Lord Chorley.)
§ THE LORD CHANCELLOR
I think, as this is rather a legal point and the noble Lord, Lord Shackleton, expressed the hope on Second Reading that he would get a legal view of it, that it would be convenient if at this stage I dealt with the matter fairly fully—I hope your Lordships will not think at inordinate length. I have tried to get the point as clear as I can.
The object of the clause is to remedy an anomaly which was overlooked in the drafting of the Hague Protocol, and the history is this. Article 29 of the Warsaw Convention extinguishes the right of action if proceedings are not started within two years, and then comes the phrase which worried the noble and learned Lord, Lord Chorley, reckoned from the date of the arrival of the aircraft or on which it ought to have arrived or on which the carriage stopped. That was, as I understand it, the drafting of Article 29 of the Warsaw Convention 32 years ago, and it has not given any trouble so far. The Warsaw Convention, as the noble and learned Lord appreciates, does not create a right of action against the servants or agents of the carrier, and the unamended Convention did not allow them to limit their liability. Accordingly, in the United States plaintiffs have sued the pilot whenever they could establish that he had been negligent. They have taken the burden of proving negligence and sued the pilot. Of course, the carrier in actual fact has felt obliged to stand behind the pilot for reasons of good industrial relations which occur in every country, and has 939 therefore paid the unlimited damages rather than allow the pilot to go bankrupt. In the United Kingdom this has not yet actually happened, though it is clearly within the minds of members of our profession; it is in the minds of all of us.
§ THE LORD CHANCELLOR
My noble and learned friend is quite right. In the maritime world a British plaintiff has, for similar reasons, successfully sued the mate of a ship rather than the shipowner. I am sure my noble and learned friend had in mind Adler v. Dixon  1 Queen's Bench, and I naturally had it in mind too. But to block this method of forcing the carrier to pay more than the Convention limits—because this is really what it is doing—Article 25A was introduced by the Hague Protocol of 1955, enabling the servant or agent who acted in the course of his employment to limit his liability if he was sued. Again, that does not mean that the Protocol creates a right of action against the servant or agent or imposes the burden of proof on him. The Article provides only that if he is liable (that means liable under English law, if negligence is proved against him by the plaintiff) he is to enjoy the benefit of the limits, if any, which the carrier may invoke under Article 22. This means, in effect, that suing the pilot would not help the plaintiff to escape the limit of liability, but would leave him with the burden of proof. It will be observed that Article 25A refers specifically to Article 22, limitation of liability, but does not refer to Article 29, the time limit; and it is therefore thought that a plaintiff who finds that he is too late to sue the carrier may get round the time limit by suing the pilot instead, thereby imposing an additional year in the case of death or personal injury, or an additional four years in the case of property.
In English law the plaintiff will be able to do this only if he can prove that the pilot is personally negligent; and because the pilot is liable only under the ordinary law, as distinct from the Warsaw system, it is arguable (although I do not think it is a good argument) to say that he ought to enjoy only the 940 ordinary time bar. The same reasoning would deny the pilot the opportunity to limit the amount of his liability. The answer to that argument is that, once the authors of The Hague Protocol had decided to give the protection of limitation to the pilot, so as to block the oblique attack on the carrier, they ought to have been consistent and prevented the plaintiff from sidestepping the time limit by the same device.
The noble Lord, Lord Chorley, expressed on Second Reading, and indicated again to-day, disagreement with our periods of limitation and with the shortening of limitation. But here, of course, we really cannot discuss that because we are dealing with the Convention period of limitation. The question is: do we apply the same period of limitation to the servant or agent as to the owner? That is the short point. I want to make it clear that the shorter time limit, as well as the limitation of the amount of liability, is the quid pro quo for, first, the assumption of the burden of proof by the carrier; second, for his submitting to be sued in jurisdictions in which he could not otherwise be sued. The blocking of the oblique attack by way of the servant or agent achieved by Article 25A, so far as the limitation of amount is concerned, was part of the quid pro quo for doubling the limit of passenger liability under the Hague Protocol. As your Lordships are aware, doubling is the effect of the Protocol, and to leave the loophole as to the time limit would diminish the value of the quid pro quo.
As a matter of history and legal interest, it was only in September last that Professor Antonio Ambrosini, of Italy, first pointed out inconsistency in the Hague Protocol. That is the position which, of course, the different constituent countries are considering. I should not like to say anything about the law of other countries, because I should have to know how a Convention which they have signed takes effect in their law. As your Lordships are aware, it varies from country to country. But that is no reason for not putting our own law in order and for making certain that, on the expiration of the two years, carriers and their underwriters will be secured against new actions, whether direct or circuitous.
941 Now I come to the second point which I mentioned. I hope the noble and learned Lord did not mind my interrupting him, but it would probably be easier if I stated it, perhaps more clearly, again, so that he can study it at his leisure. Subsection (2), as I said, is intended as a clarification, and preserves consistency by applying the two-year limit to recourse actions between operators and other tortfeasors jointly liable. Without it the two-year limit in Article 29 might be considered as preventing the bringing of such actions more than two years after the date of the carriage. I think that was what the noble and learned Lord, Lord Chorley, feared. However, these two years might be considered in establishing liability in the first case, so equally in fairness the two-year limit in recourse actions should run not from the date of the carriage but from the time at which judgment is obtained against the initiator of the recourse action. This is in accordance with the general principles of English law, as I have explained; but the subsection—
§ LORD CHORLEY
I do not know whether the noble and learned Viscount misunderstood me. What I was saying was, why should the two-year period apply to the recourse action? It is an English action that is being dealt with, and it ought to be dealt with on the ordinary principles of English law.
§ THE LORD CHANCELLOR
Again, if you put your name to a Convention you have to apply the principles of the Convention. The case which my noble friend spoke of is that of Littlewood v. Wimpey, which is reported in  2 Queen's Bench. He will find the relevant part of the judgment of my noble and learned friend Lord Denning at page 519, and that of my noble and learned friend Lord Morris of Borth-y-Gest at page 524. I read them last night, and, if I may say so with the greatest possible respect to my two noble and learned friends, I agree with them. Subsection (3) applies to the two-year limit and Article 29 to arbitrations. Again, its purpose is to remove, since the Convention as amended is silent as to arbitrations except that Article 32 allows arbitration clauses in respect of the carriage of cargo, if the arbitration is to take place within one of the jurisdictions allowed under Article 28. 942 Otherwise an arbitration clause is prohibited. But, of course, parties retain the right to refer a dispute to arbitration after an occurrence. For clarification, subsection (3) provides that the same time limits shall apply to such arbitrations as are applied by Clause 5 and Article 29 to actions. It could be useful and it is quite harmless. I am sorry to have taken so long, but in response to the noble Lord, Lord Shackleton, I thought it only right that one should give a full explanation, and I have tried to give it.
§ 6.49 p.m.
§ LORD OGMORE
I, for one, am most grateful for what the noble and learned Viscount the Lord Chancellor has said. So far as I can see, I think his answer is absolutely conclusive, if I may say so with respect. But I should like to take another point. Whilst I thoroughly agree with what he has said, I want for a moment to look at this matter from the point of view of the people who are concerned, rather more than from the purely legal aspect. In these days the pilots, and particularly the captains, of aircraft are under tremendous strain. Your Lordships can imagine bringing a big jet in from New York or San Francisco, having to fly over the Polar route on a wet night and coming in to land on a wet night. That places a tremendous strain on them, and I do not think that we should do anything which is going to involve them in a law suit.
What is the position here? If Lord Chorley's Amendment is carried, the pilot, the captain, will have at the back of his mind the possibility, as the noble and learned Viscount has said, that for some reason or other, even if a two-year period has elapsed, he may still be liable although his employers, the company, are no longer liable. We can imagine the position: he knows that he was involved in a slight accident with some damage, and after two years have gone by he is right out on a limb. His employers are no longer liable, but he may be. I think this is a matter which we should not allow to remain not cleared up.
Again, we must remember this. It happens occasionally that a company is found to have no resources. It may be that even an insurance company can fail to have resources—that has been 943 known. What happens then? Is there going to be a further period? The company, for some reason, cannot be sued; or it has not been possible to sue them within the two years because the company, or the insurance company, have no resources. But the captain will still be liable, because even after that time it has been found during the two years that the people whom the injured party would have liked to sue are men of straw. I feel myself that if there is a good reason in law, in fact and in common sense, why there should be a limitation of the period within which one can sue a company, the carrier or owners of the aircraft, there must be an equally good reason why there should be the same limitation of the period so far as the pilot is concerned. I would say myself that the noble Lord—
§ LORD OGMORE
I think I have. I have been dealing with the point. What other point is there? I was going to say that the noble Lord has used his usual persuasiveness, but he has not persuaded me. I am not talking about subsection (2). I am not dealing with the point about that. I am dealing with subsection (1), and I should have thought I had dealt with that. I have not dealt with it from the legal point of view because there is no need to. I feel that the noble and learned Viscount the Lord Chancellor has dealt with it perfectly well. I have tried to deal with it from the practical point of view of the unfortunate captain of the aircraft. I hope that the Committee will not accept this Amendment, which I feel might have unfortunate results on the aircraft crew.
§ LORD CHORLEY
Might I say another word, because it is quite obvious that I have not really explained my first point effectively? The noble and learned Viscount did not really deal with it, if I may say so, which shows that I cannot have explained it to him. I said at the beginning that I could quite understand the object of giving a pilot who is accused of negligence the same sort of protection as is given to his employers, the carrier; but I was dealing with a different course of action, the course of action of misconduct, which has always been differentiated from neglect and 944 which is separate and which in the Warsaw Rules themselves is specifically defined as a case where a carrier forfeits his protection under the Act unless he can show that he was not privy to the misconduct on the part of his servant. It would be rare, I agree, that there would be misconduct, as opposed to negligence, on the part of the pilot or other servant of the carrier in this type of case, but now and then there are such cases and they have come into the Press from time to time.
There was a case not long ago of, I think, a pilot who took over his plane when he was somewhat intoxicated; and I think it would be arguable whether to pilot a plane in that state was misconduct. In those circumstances, I am suggesting that it would be within the course of his employment, within the words used; and therefore, in my submission, would give him the protection which is provided by this clause but which he ought not to have. What I was suggesting to the noble and learned Viscount was that, even if we accept this clause in regard to negligence, it ought not to be allowed to protect the pilot in respect of misconduct. I think that should be made clear. It seems to me that, as it stands, it is giving the pilot a greater protection than he ought to have. I hope I have now made it clear.
§ LORD SHACKLETON
I feel a certain embarrassment at letting loose such a weight of legal brains on a subject on which I am so inexpert to argue. But if I understand rightly my noble friend who has just spoken, the effect of this clause is to reduce the possibility of an action against a servant (I cannot remember the particular section in the Convention) where there is wilful negligence, or whatever the phrase would be, or misconduct: and it will apply a limitation in time in regard to such an action which would not apply in time to an action against the carrier himself. I am not sure whether I understood my noble friend aright on that point. But, if that is so, it would seem to me to introduce yet another difference which was perhaps not intended.
I am wondering also on what ground the Government are saying that this particular oversight really was an oversight. Are we sure that this question was not discussed when the matter was considered at the further talks, as a result of which 945 these amendments to the original Convention were made? And are we, in fact, justified in introducing a change which is not part of the Convention? I take it that we should not, in fact, be in breach of the Convention we have signed in so doing. Perhaps we could hear a little more from the Government on that point, or from the noble Lord.
§ THE LORD CHANCELLOR
I can confirm that it definitely was an oversight. I had a message from someone who was there, as I said. I am not convinced on the point of the noble Lord, Lord Chorley. I think his idea of encouraging actions for negligence which would be pitched as high as misconduct would add greatly to the terrors of the pilot, and I think the fair thing is that the pilot should be put in the same position as the owner. That is the view we take.
§ LORD ABINGER
I can only say that I consider myself extremely fortunate to hear the legal points at issue in this clause explained with such knowledge and clarity by the noble and learned Viscount, and I think I should be extremely foolish to attempt to add any comment myself. The general principle of the clause we regarded as being aimed at ensuring the spirit of the Hague Protocol in certain circumstances where it might be flouted. Those circumstances have been very fully explained, I think, and I would only add my own humble and earnest plea that this provision be allowed to remain in the Bill.
§ LORD SHACKLETON
May I ask the Minister one point? Article 25A states that the limiting of liability under Article 22shall not apply if it is proved that the damage resulted from an act or omission … done with intent to cause damage or recklessly …This would seem to mean that the limitation will not apply when the carrier is concerned. But will the limitation in time still apply to the servant as a result of the introduction of this particular clause? Because that would seem to me also going contrary to the Convention. It was one of the points that I think my noble friend was making.
I would make only one other point. I think that to suggest we are putting an undue burden of anxiety on the pilot if we expose him to the risk of action in 946 the event of misconduct is a rather disgraceful point of view; it suggests that any such misconduct should be condoned.
§ LORD OGMORE
May I say that the Amendment does not deal with misconduct as such: it deals with removing the whole of the clause. That is to slay, it removes the clause which gives the pilot the protection of the two-year limitation, whatever he does. I never mentioned the word "misconduct". It was the noble and learned Lord, Lord Chorley, who mentioned it; I did not. If this Amendment is carried, all this two-year protection goes, and he goes back then, I suppose, to six years.
§ LORD CHORLEY
They can then put in at the next stage a properly drafted clause which will cut it down to the required limit.
§ LORD SHACKLETON
I was referring to Article 25, where it says:The limits of liability … in Article 22 shall not apply.…
§ LORD CONESFORD
With respect, I think the noble Lord means Article 25A. It is on page 14, paragraph (3).
§ LORD CHANCELLOR
I am sorry I did not get the reference, but let us look at them both. Article 25 says:The limits of liability specified in Article 22 shall nod apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.Nobody can object to that. That is in favour of the view which the noble Lord is putting forward. But if the noble Lord will look on to Article 29, he will see that it is there stated thatThe right to damages shall he extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, …and so on—the usual words that come out of the Warsaw Convention. Now that time limit in favour of the carrier applies even if there is wilful misconduct. 947 Therefore the same time limit should apply to the pilot; and Clause 5 (1) follows that.
§ On Question, Amendment negatived.
§ Clause 5 agreed to.
§ Clauses 6 to 9 agreed to.
§ Clause 10 [Application to carriage by air not governed by Convention]:
§ 7.4 p.m.
§ LORD SHACKLETON moved to leave out Clause 10. The noble Lord said: My reasons for moving this Amendment, which I gave in part on Second Reading, are to question, first of all, whether it is desirable to do it by order; and, secondly, whether it is desirable that the limitations of liability, which are obviously desirable in regard to international carriage by air, should equally be extended to carriage by air which is not carriage by air to which the Convention applies. The arguments in favour of having the same sort of limitation in liability have at first a certain attractiveness—namely, the fact that when you go into an aircraft you may or may not distinguish whether you are travelling internationally, and whether in fact you are travelling under conditions which are not the carriage by air to which the Convention applies. It may be argued that this again is a simplification which would be an attractive one from the passenger's point of view.
§ Here again this is a matter on which I should be interested to hear the legal opinions, some of which have already been given in another place, and on which I think it would be particularly valuable to have the opinions of people like my noble and learned friend Lord Chorley and the noble and learned Lord, Lord Denning. I understand—and this was quoted by the Minister in another place—that to found a limitation of liability on unification of the law, or for convenience, is not a sufficient reason; and it seems to me that it would particularly not be a sufficient reason in this case, when it might equally be argued that the law ought to be unified, not with international carriage by air but with the practice of travel on the ground. After all, a traveller going to Liverpool—perhaps not Liverpool; he may or may not be able to fly there, but certainly to Newcastle or Edinburgh—may decide 948 to take a train, where there is no such limitation of liability; he might decide to take a bus, or he might decide to take an aeroplane. If he is going by bus or by train, he may think, "there is no need for me to insure myself"; but when he goes by air, he will, as people naturally do, insure himself. But is this, in fact, a desirable thing? Ought not all three forms of carriage be on the same sort of basis?
§ Now it has been advanced as a reason for this that, in any case, airlines such as British European Airways treat all these matters on a fairly generous basis. Indeed, I understand that British European Airways no longer regard themselves as bound by the limit under the 1952 order, but are in fact already paying it up to the new limit. They, we may argue, can be trusted to do what is right. But there is going to be an enormous expansion in air travel in this country. Depending on how the new Air Registration Board and similar bodies operate, there may occasionally be operators who do not maintain quite the same high standards. Ought they to benefit from the same limitation on liability?
§ There is a further argument here—namely, that the difficulties of bringing an action for the sort of matter we were discussing under the last Amendment, for wilful misconduct, are increased by the terms of the Convention. This particular aspect of the Convention has been tightened up. I should have thought it called for very careful consideration as to what we are going to do in regard to the application of this Convention to internal carriage or, in fact, to carriage by air to which the Convention does not apply. But what apparently the Government—and I must again say "the Government", because we know that this is a Government Bill—propose is that they should take power to make an order. Now if I understand it rightly, they waited 20 years, between 1932 and 1952—and this includes all Governments—before they in fact applied the Carriage by Air Act, 1932, to non-international carriage. And when they finally did so, they produced an order which in itself amounted almost to another Bill, with about 20 or 30 Amendments—no doubt some of which, it could be argued, were drafting Amendments—to the original Bill.949
§ What I am suggesting is that this ought not to be done by order, It is very difficult for us to adopt the sort of proposal that was put forward in another place, of just varying the amount and Saying that it should be £12,000 as opposed to £6,000. But another place felt so strongly about it that the proposal was defeated by only one vote; and I should have thought that we ought to have this as part of the legislation. However, in order not to hold up our action in ratifying the Convention, I suggest that we pass this Bill without this clause, and that the Government should then bring in another Bill, rather than doing it by order which we know would not be subject to discussion or to amendment. I should withdraw the remark about its not being subject to discussion; but certainly it would not be subject to amendment. In another place, the Minister, again in an attempt to overcome criticism, promised to put the order in advance in the Library. He promised—and this is the traditional method—even to consult people, But this is a matter which is not suitable for consultation between the interested Members of either House and the Goverment; it is a matter to form part of regular legislation.
§ I have often heard the noble Lord, when he was in another place, and his friends worrying on occasion about the Government's attempting to do too much by order, and too much by statutory instrument. I think that this is a matter which ought to be made part of an Act of Parliament. For this reason, I move that this whole clause be deleted.
Leave out Clause 10.—(Lord Shackleton.)
§ 7.12 p.m.
§ THE LORD CHANCELLOR
I have given a great deal of attention to this question. I should just like to develop my points, and then I would ask the noble Lord to consider whether he has any difficulties. This question raises, as the noble Lord, Lord Shackleton, said, really two points: one, should it be done by order?; two, what are the merits? I propose to follow him in that way. Just to get the history, as he is no doubt aware the corresponding provision of the Carriage by Air Act, 1932, provided for an Order in Council that was not subject to any kind of Parlia- 950 mentary control, except that it had to be laid. It was fortunate that the 1932 Act conferred the power to make an order in that, when it was necessary to apply the Warsaw Convention to non-international carriage, because the carriers were otherwise contracting out of liability, it was possible to make the order in a relatively short time; and the noble Lord knows what lies in the way of proceeding by Bill.
But I take a much more serious view against his proposal, a view which think has a considerable basis upon real ground. The distinction I have always tried to draw between when it is necessary to proceed by Act of Parliament and when one can proceed by subsidiary legislation, either by Affirmative or Negative Resolution procedure, is, first, that if it is a new legislative proposal, then proceed by Act of Parliament. If one is applying legislation, and if one has to apply it in a flexible way so that the matter may require constant revision, then there is a case (I think I can from memory quote the original Donoughmore Committee on this point) for dealing with it by subsidiary legislation.
I would ask noble Lords to consider what is the real problem here. Clause 10 confers the power to do more than apply the Convention to non-international carriage. The Convention can also be applied, with exceptions, adaptations and modifications, to any other carriage to which it does not otherwise apply—namely, to gratuitous carriage by a carrier which is not an air transport undertaking (for example, the Crown), to the carriage of persons who are not able or willing to make a contract (such as prisoners, deportees, or lunatics), and to the carriage of stowaways. When you have that sort of problem, it may prove necessary to provide for quite a number of exceptions. In the case of gratuitous carriage by the Crown, it may be necessary to except persons to whom the injuries warrant applies. I hope the noble Lord, Lord Shackleton, will not misunderstand me. I am not saying that these ought to be exceptions; I am saying that one ought to consider whether they should be exceptions, and one might come to a different decision at one time or another.
To take another example, gratuitous carriage by private flyers or by bôna fide 951 flying clubs might have to be excepted. On the other hand, if you excepted them, you might find that a mischief developed out of that, and you might have to bring them in again. These are all detailed matters on which consultation is required, and experience may show that the provision originally made is not appropriate and requires to be improved.
The advantage of proceeding by way of Order in Council is that these matters requiring flexibility, and perhaps a measure of detail, can best be dealt with in that way. And if you do decide in favour of the Order-in-Council method, as giving the necessary flexibility, the best way is to have the Affirmative Resolution procedure. Because, as the noble Lord knows, in another place, where there is a lot of business, with the Negative Resolution procedure it may be very difficult to get your friends together in order to have 40 people there to bring it up. But with an Affirmative Resolution the Government have to find time for it in Government time, so there is no question of the matter not being brought before both Houses of Parliament.
The difficulty, as the noble Lord stated, and which I accept, is the difficulty about amendment. Although he attacked in a quite pleasant and restrained way the suggestions, I think there is something to be said, and something quite serious to be said, for my right honourable friend's suggestion that not only have you to put a draft order down which can be examined, but that he will see that good notice is given of that by putting a copy in the Library, and so giving Members a chance of attending to it. Of course, it often has to come up in the House, and the publicity will come in that way. My real point here—I think this is something one has to consider very carefully, although it is difficult to work by analogy—is that this is a matter which ought to be kept up to date and, therefore, demands a flexible procedure.
Now I come to the other point, the merits of the matter. I should like the noble Lord to consider, first, what the effect of his proposal would be. The clause enables the amended Convention to be applied by Order in Council, with modifications as may be specified, to carriage by air to which the Convention does not apply. It corresponds with 952 Section 4 of the Act of 1932, except that that section (I think this is an important point, and I should like to indicate it again) applied only to non-international carriage, and therefore did not cover gratuitous carriage by a carrier who is not an air transport operator—and, of course, the Crown is the important one there—or the carriage of stowaways. I think the noble Lord would agree that there is a greater case for applying the Convention to that sort of thing than taking simply non-international carriage.
As I have said, Orders in Council under the 1932 Act had only to be laid, whereas these must receive an Affirmative Resolution. As it stands, the Amendment would eliminate the order-making power altogether, and the provisions of the amended Convention could not be extended beyond international carriage, except, of course, by another Act of Parliament. There are two variants on this possibility which have been the subject of speeches in your Lordships' House—namely, to require a higher liability limit to be inserted in any Orders in Council, or to require a higher liability limit to be applied to the purely domestic carriage of passengers.
The effect of this Amendment, to omit Clause 10 altogether, is that non-internal carriage would be subject to no liability limit, and passengers and cargo on non-internal travel would not be able to avail themselves of the presumption of liability without proof of negligence contained in the Convention. I say completely seriously that I do not pretend to compete with the noble Lord on the mechanical problems of aircraft, but I think that he will agree with my own thought on the matter: that the transfer of the burden of proof is important, because there may be cases where there is a question of metal fatigue and the like, which brings up all the questions of inspection and so on. Under the Convention one can only succeed if one is able to show that there was no negligence and one had a perfect system, perfectly carried out. Therefore, the transfer of the onus of proof is an important matter. The presumption of liability without proof of negligence would go.
Let us look at this from the insurance point of view. Unlimited liability cannot be insured against, so operators 953 would be faced with the alternatives of accepting the burden of risk themselves or contracting out of it. And if we leave out Clause 10, they are entitled to contract out. When faced with the same position prior to the Carriage by Air Order, 1952, the contractors took the latter course of contracting out of the whole of their liability towards their passengers and cargo and of making any payments by way of compensation on an ex gratia basis. If no provision were made to compensate outside the terms of the Convention, carriers would almost certainly contract out of any liability, so that passengers would be worse off and not better. It is possible that carriers might be considered to be under contract for the Convention limits, but that is unlikely, because, as I think my noble and learned friend Lord Denning will agree, owing to the effect of Nunan v. Southern Railways, a contractual provision would not be effective against the dependants of a deceased passenger, and therefore they are not likely to take that course.
I should like the noble Lord, Lord Shackleton, to consider that contracting out is a matter on which one wants to think a great deal. Almost the first case I had in the Privy Council, when I came back from Germany in 1946, was one in which there was a long list of conditions, and generally there is the point of whether these conditions were really brought to the attention of the injured person. I do not like to consider the general application of contracting out, and that is what would happen if this Amendment were given effect to.
There are alternative views with which the noble Lord is familiar, because they have been discussed in another place. There is the alternative to impose a higher liability limit in Orders in Council. That would lead to even more confusion than I think the noble Lord visualised, because he will see that, under Article I, in the First Schedule, the Convention covers only carriage in whichthe place of departure and the place of destination … 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.What does that mean? It means not only internal carriage by air but also direct transportation from this country 954 to, say, the Channel Isles or to an overseas territory like Gibraltar or to a State not a party to the Convention or outside the definition, and therefore there would be one limit for internal carriage and a different limit for all the rest. That would make it difficult to explain to a passenger why his liability limit should differ markedly from those of passengers occupying the adjoining seats. I think the example I have been given is a correct one. There does not seem any good reason why two passengers, travelling at the same time from London to Singapore, should be subject to different liability limits merely because one is going from Singapore to a State that is not party to the Convention.
The other alternative is to have a higher liability limit or no limit at all for passengers on journeys beginning and ending within the United Kingdom. The arguments for the limits for internal carriage are, if I may state them once again, that an injured party is freed from the onus of proof of negligence perhaps in a foreign court, that the existence of the limit reduces expensive litigation and that passengers in general are not obliged, through increased fares, to share in insuring the specially valuable passenger. Provided the limit is not excessively low, these are valuable things.
I do not want to go into matters that may be semi-private, but I am sure that the noble Lord has heard what I have heard, that settlement on these limits is something which the Air Transport people would be very ready to make, and this would save a great deal of litigation. The figures I have been given show that a remarkably high percentage of claims over a period of years were for less than £6,000 and a remarkably low percentage were for more than £10,000. So far as the valuable passenger is concerned, he can get special insurance at a low rate—again I had better not quote, but the noble Lord can take it from me—and there is no difficulty in his case. I have given the anomalies. I am afraid I have addressed your Lordships at great length, but the noble Lord, Lord Shackleton, may be wary another time of sparking off a legal response from the Lord Chancellor. However, I felt that, as he asked me, I ought to take some trouble; and I think he will agree that I have done so.
§ LORD DENNING
I am sure all your Lordships are grateful to the noble and learned Viscount the Lord Chancellor for what he has said. But may I suggest that there is not all this need for flexibility here? We are dealing with carriage by air within this country. If we have carriage by rail, or carriage by coastwise sea, we do it by proper Act of Parliament. If this is to be done by Order, we are covering all inland air transport, and I suggest that such matters as stowaways, Crown servants, or even chartered aircraft, or aircraft giving lifts, are not matters of day-to-day need for alteration or flexibility, and we should be able to do it by the ordinary procedure of the House. Therefore, although I would not suggest it would be right to omit Clause 10 altogether, I would suggest that something might be done whereby in the form of a Schedule to this Bill you could insert what would be the Minister's order. That might be a way in which it could be brought within the proper Parliamentary procedure and not left, in effect, to legislation on this important matter by Order in Council.
The question is whether the need for flexibility is so great as to warrant this special procedure. I suggest that the examples mentioned by the noble and learned Viscount do not come up to that. It is, I agree, vital to have some legislation on this matter, either by Order in Council or in the way I suggest, because if there is nothing you will find all the air companies, by special contract, excluding all liability so as to overcome the decision in Nunan v. Southern Railway, whereby in the case of death claims there is no limit whatsoever. In order to avoid that, they will stipulate for complete exclusion; and, rather than that, it is necessary that there should be some legislation on the matter.
What I should like to see is something in the form of a Schedule within the Bill, and then the limitation made higher for our inland carriage by air. Three thousand pounds as at present is far too low; and £6,000, as in the Convention, is, I suggest, also too low. What I suggest is that there is not a strict liability here. There is a clause defined in Article 22 which says that by special contract the carrier and the passenger may agree to a higher limit of liability. I 956 should like to see the aircraft companies, by special contract, if need be, showing the way to a higher limit of liability. I suggest that something could be done in order to avoid this procedure by Order in Council and to have legislation in some other way.
§ LORD CHORLEY
I should like to make one point here. It has been assumed—and I admit it is a real possibility—that without some provision of this kind the air carriers would limit their liability out of existence, and Nunan's case has been referred to. But we must remember that the railway companies did not limit their liability for the safety of their passengers out of existence. Nunan's case, in my recollection, was a case in which there was a specially cheap fare, and it was only in respect of specially cheap fares that the railways limited their liability. They were, of course, responsible for negligence, and negligence had to be proved against them, but, in my experience, there has never been any particular difficulty in getting a verdict of negligence against a railway company, and in the ordinary case the railway company was responsible for the actual damage suffered by the passenger.
The noble and learned Lord, Lord Denning, is more familiar than I am with the heavy damages that were given; he must have in mind damages in the nature of £20,000 to £30,000 in some exceptional cases being awarded against the railways. Why should there be this difference between a passenger by aeroplane and a passenger by railway? I cannot feel that if the railway companies did not take the course of limiting their liability in this way to a passenger who had an ordinary ticket, and not a specially cheap ticket, a great corporation like British European Airways, or whatever the corporation is which supplies the facilities for inland air transport, would wish to take up a more reactionary (if I might use that term) position than was taken up by the railway companies. Therefore, I feel that there ought not to be this distinction.
§ THE LORD CHANCELLOR
My noble and learned friend Lord Denning has said that he does not think my examples of flexibility are sufficiently strong. Well, that is a matter of opinion, and I think that those I gave about the 957 various categories are matters in which you want a form of legislation which can be altered. I am not going to follow the noble Lord, Lord Chorley, into the differences of common carriers all over the world. No doubt he has looked at this point already, but it is a very interesting one, and I did consider it slightly before this. But I believe that one of the quids (or should I say one of the quos, if that is better Latin) that is important here is the change in the burden of proof. If I may give an example, in any collision case the doctrine of res ipso loquitur would not apply. True, the fact that you have the change of the burden of proof is an important matter and a considerable quid for the limitation of damages; and that applies wherever you are, whether at home or abroad.
I hope that the noble Lord will not press this Amendment. I have shown that it is a matter of consideration. I will certainly bear in mind what noble Lords have said. The noble Lord, Lord Shackleton, was perfectly right in saying that when we were in Opposition, ten years ago and more, we did make a great point about subsidiary legislation; and not least myself. It is a subject on which I try to achieve that very hard task of keeping an objective mind. It is so easy to take one view when one is in Opposition and to take another when one is in Government; but I do try to keep it clear. I feel strongly here that there is a need for flexibility, and I hope that, after the discussion we have had, the noble Lord will not press the Amendment.
§ 7.39 p.m.
§ LORD SHACKLETON
I am grateful to the Lord Chancellor. This is certainly an extremely complicated field. I am 958 sorry he could not see his way to answer the appeal of the noble and learned Lord, Lord Denning, that some form of Schedule might go into the Bill. The Lord Chancellor knows well that there was not intention on our part to remove this clause entirely, but this Amendment was the most convenient way of dealing with it. Even if the clause had been removed entirely, the Act will not be coming into force for some time yet, when the ratification is complete, and it would have been possible to bring in a small amending Bill which would have been susceptible to amendment, rather than to do it by the subsidiary legislation form. Indeed, it would have been possible to preserve a part of the old Act if it was desired, and the old order, by an Amendment to the Second Schedule.
I will not waste the time of the Committee any more. I am very grateful, as I am sure we all are, for the extremely thorough and most painstaking explanation, if I may say so, which the noble and learned Viscount has given us for the benefit of laymen. Although I am sorry that we should have compelled the Government Whips to keep their voting team here so late on this occasion, I propose to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Remaining clauses and Schedules agreed to.
§ House resumed.
§ Bill reported without amendment.
§ House adjourned at eighteen minutes before eight o'clock.