HL Deb 26 June 1962 vol 241 cc911-22

7.33 p.m.

Order of the Day for the Second Reading read.


My Lords, the background of this Bill begins with an International Convention which took place in Warsaw in 1929, when a large number of States agreed to introduce a system, the basic principle of which was that liability for death or injury of passengers carried by aeroplanes or injury to or loss or delay of their luggage or other goods consigned in aeroplanes should be limited, and that, in return for this limitation of his liability, the carrier should automatically be liable to pay the requisite sum without proof of negligence, except where there was wilful negligence or misconduct on his part.

This was acceptable all round, because it gave the carrier a limit, which was then expressed in terms of notional gold francs and worked out at about £3,000—although in special cases the two parties might contract for a higher limit—and passengers or owners of goods damaged or lost would not have to prove neglect and would be saved a lot of time and money. About 50 States ratified this agreement and it came into force in their domestic law, thereby setting up a pattern of similar domestic law all over the world for the benefit of people using aeroplanes.

In 1955, there was a further International Convention in the Hague, as a result of which a protocol was produced which amended the original Warsaw Convention and brought it up to date. For one thing, it raised the upper limit from £3,000 to £6,000. Whereas the Warsaw Convention was put into force in this country by the Carriage by Air Act, 1932, and the Hague Convention was dealt with last year by the Carriage By Air Act, moved by my noble friend Lord Abinger in this House, so far, the 1955 Convention has not yet been brought into operation because only about 25 out of the necessary 30 States have ratified it. Therefore, although in this country it could at any time be brought into force by Order in Council, it is not yet the domestic law of this country or of any other country and we still rely on the 1932 Convention.

There was a third meeting last September at a place which I am reliably told is pronounced Guadalajara, Mexico, which dealt with a small lacuna found in the provisions of both the 1932 and the 1961 Acts, as they now are. This is really all that the present Bill deals with. The lacuna which was found was that the liability in both the original Conventions fell upon the person who is described as "the carrier" and nobody has decided whom this meant, whether the person who actually had the aeroplane and carried the passenger or, for instance, some agency who arranged tours and included air travel which was contracted for directly with customers. It had been thought, though in fact there had been no litigation, that there would be differences in the interpretation in this country and America as against other countries in Europe. In this country, the carrier would be the actual aircraft owner but on the Continent it might be the contractual carrier. Although this particular failure to clarify the matter had been pointed out by the Brazilian delegate, to his credit, in 1929, this is the first time that anything has been done to put the matter right. It has been a subject of some confusion to aircraft owners and insurers.

There is only one difficulty about this Bill—that is, that the 1961 Act, which will provide a new code when it comes into force and entirely replace the 1932 code, has not come into force itself. Therefore, this Bill has to cope with a dual position: first of all, the transitional period under the 1932 Act and then, When the Hague Convention is ratified, the transfer to the provisions of the 1961 Act. This really is what makes it a little complicated. I do not know whether this particular trouble will arise, because it is possible that the 1955 Convention will be ratified first, but there is a race going on between them and we must provide for this eventuality. Other countries are introducing legislation to deal with the Guadalajara Convention, and I think that it is to our credit that we seem to be the first off the mark, largely through the efforts of my honourable friend the Member for Abingdon in another place.

As your Lordships will have looked at this Bill, I am afraid that you will not allow me to get away with what I have already said, because of the very complicated provisions, and, as quickly as I can, I will go through what it says. The first clause makes the Convention, set out in the Schedule to the Bill, the domestic law of this country. This has been done in this particular form, rather than by enacting the whole thing as a substantive law in the main part of the Bill, so that there is no doubt whatever that we are getting exactly the same law as all other countries who ratify the Convention.

Then it is provided that where there is any inconsistency in the texts, of which there are three in this Convention, the French text shall prevail. Your Lordships might think this a little strange, but the reason for it is that the original Warsaw Convention was written entirely in French and there were no other texts, and ever since for these Conventions the French text has prevailed. This enables the courts in this country to use these texts if there is any inconsistency; but, so far as I know, no inconsistency has occurred. Nevertheless, it is a strange procedure which I thought your Lordships would like to have explained. It is also interesting that this is by no means the first time that we have had a French content in an Act of Parliament, because there is the precedent in the old days of Norman French Acts, the last of which was passed by your Lordships' House in 1439.

The second clause starts by defining the Warsaw Convention, and it does so in substitution of Article 1 (a) of the Convention itself. The reason why it is done in this fashion is because of the transitional scheme which I explained to your Lordships, so that the Bill, as it stands, will apply, first of all, to the 1932 Act before the Convention scheduled to the 1961 Act comes into force, and when that Convention is ratified and comes into force in this country, then the "Warsaw Convention" will mean the Schedule to the 1961 Act. But in that transitional process no rights or liabilities will be affected by the change if they have been incurred before the change takes place.

Then, subsection (2) of Clause 2 is a provision which concerns the provisions of Article 7 of the Convention in the Schedule. It is a small point, but it had to be provided that arbitrators should be brought within the general context of this Bill, whereas the actual text of the Convention mentions only courts. While I am talking about Article 7, it has turned out that there will need to be small changes in the rules of the courts of Scotland and of Northern Ireland in order to deal with it. However, these matters do not have to be in the Bill, but can be dealt with administratively Subsection (3) is merely a matter of Scottish phraseology.

Clause 3 looks most alarming. It is, however, again a matter which can be explained fairly simply by the extension of the definition of "carrier". Whereas before there perhaps would have been only one body or corporation that could be sued as the carrier, now under this new Convention there may well be two in any particular case. It has therefore had to be provided, first of all, that where the limit of £3,000 or £6,000 is sued for, this shall be the aggregate of the limit of the money which can be claimed from any of the contracting carriers or the actual carriers. Secondly, in subsection (2) the servants of either of the carriers can be protected in the way that the 1961 Act protects them; that is to say, by allowing them the same limitation of liability as their employers. There was a small difficulty about this, but it has now been put into this form in the Bill so that all the servants of all carriers will be protected and be given the same limit of liability as their employers have.

Then the third subsection brings in the possibility that two foreign States might both be involved, one as an actual and one as a contracting carrier. Without their express submission to the jurisdiction of the courts in this country the courts have no power to deal with them at all, and it was provided in the Convention that if they signed the various conventions they would be deemed to have submitted. Now there may be the necessity of bringing in an extra foreign State and provision is made for it.

Clause 4 is again interim, but as the law stands at present, if this Bill becomes law before the 1961 Act comes into operation in this country, there might be situations where the servants or agents of a carrier would not enjoy the limit that their employers have, whereas other servants and agents would enjoy it. This clause has been drafted to take away that possibility.

Clause 5 enables the British Government to extend by Order in Council the provisions of this Bill to overseas territories. Your Lordships will see that it does not apply now to trust territories, and this is because with the independence of Tanganyika we have none. I wonder whether perhaps my noble friend Lord Denham will be able to say if this is intended to be done by Her Majesty's Government, and how quickly. The second subsection of this clause provides again that Her Majesty's Government may by Order in Council extend the provisions of this Bill, as they have done the provisions of other Acts, to the varieties of carriage by air not covered by the Conventions themselves. One of these, for instance, is what is called non-international carriage. That for some extraordinary reason does not mean what it says at all, but means, for instance, a trip between this country and Turkey, because Turkey has never ratified the 1929 Convention.

None the less, there was in 1952 a statutory instrument which brought within the scope of these Conventions and the various agreements in them such carriage as that; and there is also the possibility of bringing in the sort of carnage which is done by Her Majesty's Government, for instance, when they take your Lordships in a delegation abroad by Transport Command. There was some mention of this variety of carriage in another place, and the phrase occurred, which to me seems an unpleasant one, but is in common use, of "blood chits". These are some variety of document which your Lordships might have to sign which would exempt the Crown from liability in the case of an accident. It seems to me that it would be a very good idea if this sort of carriage by the Crown were to be brought within the general ambit of this Bill. I wonder, again, whether the Government have any views or any plans in this particular respect.

Clause 5 of the Bill comes into force before the rest of the Bill is brought into operation by Order in Council and this will enable the Orders to be laid, so that I hope that, at the same time as the Bill comes into force in this country, its provisions may also be extended to our Colonies and other dependencies. The Act will bind the Crown, but not until the 1961 Act comes into force. This is because under the 1932 Act the Crown is not bound, and it has been thought better that where the binding of the Crown is to be brought in it should be brought in all at one time and not possibly, first, under this Bill, and secondly, under the 1961 Act.

Clause 7 is self-explanatory, and I think I need only draw attention to the actual provisions of the Convention in two particular respects. First of all I have to explain why Article 1 (a) is not reproduced. Its substance appears in Clause 1 (1) of the Act itself. Secondly, there is nothing sinister in the fact that the eleventh to eighteenth Articles have been left out. They are purely internal machinery for the Convention itself.

Finally, Article 10 allows what seems to me to be an important provision in this particular respect: it allows the various companies or firms which are dealing in this particular field, for instance a travel agent who arranges tours and the aircraft firm he employs to take his passengers on it, to arrange between them indemnities, so that the liability in law need not fall too hard on the one or on the other. These indemnities are allowed under the Convention, and Article 10 makes this quite clear. This will be for the protection of genuine travel agents and others who arrange tours and whose passengers perhaps unfortunately suffer some mishap through no fault of their own. I am afraid this is a complicated Bill. I have attempted to explain it to your Lordships, and if in any respect I have failed I will try to answer any questions that your Lordships may have. But otherwise its purpose is simple. It is to supplement the previous law, as it says in its Short Title, and I hope it will receive the approval of your Lordships. I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Colville of Culross.)

7.52 p.m.


My Lords, I congratulate the noble Viscount on the clarity with which he introduced what may be a simple proposition, though it is extremely complicated because of the fact that this is an amendment to a Convention which we have already amended in certain respects. All I want to say is that clearly we should welcome this. It shows once again the difficulties we get into with these international Conventions, and it shows the danger of putting into effect Conventions which it is not possible to subject to quite the sort of scrutiny as that to which we subject our own legislation. It is perhaps a surprising thing that we have had to wait all these years for this particular gap in the Warsaw Convention to come to light—the fact that it was not picked up at the later one at The Hague, and that one had to go to Mexico to get it straight. I do not know how we are going to solve these problems in the future. Clearly, there will be an increasing flow of Bills, with probably French and other Schedules, and the question of the definitions of "the carrier" or the "transporteur" or "transporteur de fait" will, in fact, be the same in both languages. But I can see difficulties in the future. We shall no doubt have to be not only lawyers, like the noble Viscount, but also linguists as well.

There is only one question I should like to ask the noble Viscount or, perhaps the Government. It is the question of Clause 6, and the fact of actually binding the Crown. I quite see that that was necessary in regard to the earlier Carriage by Air Act. But, as I understand it, this Bill is primarily concerned with this problem of the contracting carrier, to bring him into the picture as well as the actual carrier. I suppose it is visualised that in certain circumstances the Crown may be a contracting carrier. I am sorry that we have to wait for the abolition of the "blood chit". With regard to the provision in either of the Acts which binds the Crown, we have still to wait for ratification of the earlier Convention. I do not know whether the Government can give us any later news on what the state of the ratification is, and whether the United States have succeeded in overcoming their anxieties in this matter. I hope that the Government will continue to press, as I am sure they have already done, to ensure that these highly desirable Acts come fully into force. I would make only one small protest. This is a more respectable Bill for a Private Member's Bill, but it is still, I should have thought, the Government's duty, rather than that of public-spirited noble Lords, to see that Conventions are ratified.

7.55 p.m.


My Lords, may I start by congratulating my noble friend Lord Colville of Culross on the excellent way in which he moved the Second Reading of this Bill? It is, as your Lordships will have perceived, very much a lawyer's Bill, and I thought my noble friend succeeded in making its provisions admirably clear. So much so, that there is little left for me to say, except to deal with one or two points that have been put to me. I will come to those in a moment.

The Bill is needed, as my noble friend said, to enable the United Kingdom to ratify a Convention which was adopted by a diplomatic conference under the auspices of the International Civil Aviation Organisation in September, 1961, known as the Guadalajara Convention. The reason for the Convention, as my noble friend has explained, was an ambiguity in the Warsaw Convention of 1929, and also in The Hague Protocol of 1955, which contained no clear indication whether the carrier therein referred to was the person who contracts to carry or the person who performs the carriage, when those two persons are not one and the same. To remove this doubt, which affects passengers and consignors of goods as well as air carriers and their insurers, the Guadalajara Convention applies the rules of the Warsaw Convention to both the person who contracts to carry and the person who performs the carriage.

Forty States took part in the drawing up of the Convention, which may be taken as some measure of the importance which is attached to the point. But for the Convention the plaintiff's lawyer would be unable to say with certainty which carrier the plaintiff is entitled to sue without bearing the burden of proving negligence, and the defendant's lawyer would be unable to say with certainty whether the particular carrier is entitled to the limitations and defences of the Convention. The removal of this uncertainty will decrease the risk of costly litigation to the benefit of all parties.

The point about the "blood chit" which my noble friend passed on to me, though a small one, can be most intricate. The position, as I understand it, is this. This Bill, like the Carriage by Air Act, 1961, which it follows, will bind the Crown. However, the Convention itself—the amended Warsaw Convention, or the unamended Warsaw Convention—applies only to international carriage, which is either carriage for reward or gratuitous carriage by an air transport undertaking. The Convention itself will not apply to non-international carriage or to gratuitous carriage by the Crown or by any other person who is not an air transport undertaking. Gratuitous carriage by the Crown itself is the context in which at present the so-called "blood chit" is necessary—a document exonerating the Crown from any liability for an accident involving the person who signs it. It has been established in the courts that a carrier cannot contract to limit his liability to the dependants of a passenger who is killed, although he can, and often does, contract out of all liability.

Section 10 of the 1961 Act (which is applied by Clause 5 (2) of this Bill) enables the Government by Order in Council to apply the Convention to carriage to which the Convention does not otherwise apply, and it also enables the Order to make exceptions and modifications in so applying the Convention. The intention of the Government is at a future date (it is impossible at the moment to say exactly what this date will be) to exercise this power in relation to gratuitous carriage by carriers who are not air transport undertakings. That category includes the Crown.

In so applying the Convention it may be necessary to make certain exceptions. As at present advised, I do not know what those exceptions may be; I am simply making a reservation on this point. But when an Order is tabled by the Government to this effect it will be subject to the Negative Resolution procedure, and can then be debated. The upshot is that "blood chits" are at present still necessary, but when such an Order has been passed they will become unnecessary. Thereafter "blood chits" will not be further used by the Crown acting as a carrier by air, although that is not to say that they will not be used at all, because the Crown is not the only air carrier in the category of gratuitous carrier.

My noble friend Lord Colville of Culross asked me if I could give any indication as to whether Her Majesty's Government would extend the Act to British possessions and other territories under Clause 5 of this Bill. In the view of Her Majesty's Government it is desirable that the maximum uniformity of the laws of different countries in relation to carriage by air should be achieved, and it is expected that the provisions of this Bill will, after any necessary consultation with the Governments of the territories concerned, be applied to British possessions and other territories by an Order in Council made under Clause 5 (1) of the Bill so far as international carriage is concerned; and so far as non-international carriage is concerned by an Order in Council made under Clause 5 (2). But Her Majesty's Government will, of course, consult with the territories concerned.

The noble Lord, Lord Shackleton, asked one or two questions, some of which are not really matters for me to give an answer to on behalf of Her Majesty's Government, but my noble friend I am sure will deal with them afterwards. The present state of ratification of the Hague protocol which is dealt with under our 1961 Act is that 25 States have to date ratified the protocol. As the noble Lord will be aware, the protocol comes into force when 30 States have ratified it.


My Lords, before the noble Lord leaves that point, can he tell us any more about the state of opinion of the American Goverment, where, I believe, the difficulty is at the moment?


No, I am afraid I cannot. I understand there is not a great deal of change at the moment on that point. The noble Lord also said he thought it was rather a pity that this and other Bills dealing with the ratification of International Conventions should be left to a Private Member's Bill. But I would put to him this point: that it is a very good thing if we can ratify these Bills as soon as possible, and when it so happens that a private Member is kind enough to take on a Bill of this kind that will save time and can therefore be got through to the point of ratification more quickly, I am sure the noble Lord will agree that the Government are right to take this course.


My Lords, I am sorry, but may I interrupt the noble Lord? This defence of this action seems to me to make it very much worse. The noble Lord himself realises that it is a tremendous source of complaint which is well known to noble Lords who have been in another place that private Members get a very raw deal, and here is private Members' precious time being taken up on what is admittedly Government business. This is a Bill which, I take it, is drafted by Government draftsmen. The noble Viscount, Lord Colville of Culross, may not agree with me, but in another place they would.


My Lords, I am sure the noble Lord will not expect me to follow him into a discussion of the business of another place. I will not add anything further to what I have said except that my honourable friend the Member for Abingdon is, I am sure we all agree, a very suitable Member to have initiated this Bill in another place. It only remains now for me to say that in the view of Her Majesty's Government the Bill is a useful one which deserves a fair wind and I hope it will receive a Second Reading this afternoon.

8.6 p.m.


My Lords, I thank your Lordships for your reception of this Bill. I really think that the noble Lord, Lord Shackleton, need not worry about this particular point being dealt with by private Members' legislation. It so happens that my honourable friend the Member for Abingdon has a great deal of experience and expertise in this matter. He chose to take this up in order to get it more quickly into law, and there is nothing objectionable which one could see about that. I am grateful to my noble friend Lord Denham for What he says are the Government's plans. I hope that Her Majesty's Government will get on quickly with their various Orders in Council so that the maximum uniformity, not only in territorial extent but also in the types of carriage which are intended to come within this form of the Convention, may be achieved as quickly as possible.

I am afraid that I made one slight error in describing clauses in this Bill which I ought to put right at this stage. Subsection (2) of Clause 3 exists for the benefit of the servants and agents of all carriers—the time limit of two years during which time only they are liable to damages under the various Conventions—and I think I ought to make that clear as I did not do so before. With those remarks, and with my thanks to your Lordships for your reception, I ask that this Bill be now read a second time.

On Question, Bill read 2a, and committed to a Committee of the Whole House.