After considering certain jurisdictional issues (which were not insisted on at appeal), the court at first instance turned to the principal subject-matter of the case, damages for breach of contract. The breach complained of consisted of a failure to “take reasonable care for the safety of passengers and … not needlessly expose them to risk”3 contrary to an asserted implied term of the contact of carriage. However, a more pressing issue for the court was the “much more important underlying question”4 of whether such an implied condition could validly be advanced to found an action independently of the Warsaw Convention, as applied by the 1961 Act. If such a claim could relevantly be stated outside the Act, then it followed that the limits on liability and damages under the Convention would be inapplicable.

Having had the benefit of extensive citation of authority, especially from the United States, Lord Marnoch noted5 that, “somewhat surprisingly, there is no clear or very consistent line of reasoning” in the cases on the key point, namely whether Art. 17 of the Convention provides the only remedy to the passenger suffering injury arising out of, or in relation to, an international flight on which he or she is being carried. Article 17 provides: