Lloyd's Maritime and Commercial Law Quarterly
OUR LAW OR THEIRS?
Holmes v. Bangladesh Biman Corp.
McElderry v. Cathay Pacific Airways
In Holmes v. Bangladesh Biman Corp., a claim was brought by the wife of a British citizen who was domiciled in the United Kingdom and died in the crash of a Bangladeshi aircraft on a flight wholly within Bangladesh. Bingham, L.J., said that, “statutory intervention apart”, an English court would without doubt hold that the passenger’s rights against the airline (and, therefore, those of the estate and dependants) were governed by the express terms of the contract between passenger and airline. Even in the absence of express terms incorporating the Bangladeshi limit on damages in such claims, he had no doubt that on the facts stated the court would recognize the law of Bangladesh as the proper law of the contract. The question was, therefore, whether provisions of an English Act1 and statutory instrument2 would oust the Bangladeshi proper law.3
The Court of Appeal,4 although expressing some surprise at their own conclusion, upheld the decision of Leggatt, J.,5 that the higher limit of liability for noninternational carriage which applied in English law by Order in Council applied to carriage within Bangladesh by the Bangladeshi airline. The court reached this view as one which it found to be inescapable given the provisions of the Order. The result was somewhat startling because it came about “not in order to give effect to any Convention, but as a result of unilateral United Kingdom legislation in respect of carriage by air in circumstances which are not covered by any international Convention”.6
When effect was given in English law to the 1955 Hague Protocol (which, among other changes, increased the limits of liability under the Warsaw Convention), an Order in Council preserved the old régime for international carriage to which the provisions of the unamended Warsaw Convention continued to apply. The Order also set out a broadly similar set of rules for carriage by air which was not within the scope of the Convention or Protocol (“non-international carriage”).
It may be noted parenthetically that, perhaps because of the difficulty of bringing into force Protocols amending the Warsaw Convention system, other devices have been used to increase the limits, such as the arrangement by which carriers contrac-
1. Carriage by Air Act 1961.
2. Carriage by Air Acts (Application of Provisions) Order 1967: S.I. 1967 No. 480.
3. As regards the ousting of the proper law, there may be thought to be analogies with the debate over the role of the proper law, if any, in determining the applicability of the Hague Rules to bills of lading. There are, however, differences. While Art. X of the Hague-Visby Rules was intended to overcome the problem of opting out which arose under the old Hague Rules, in the present case there was not an express choice to opt out of an otherwise applicable set of rules (though the judgments in Holmes do refer, rather incompletely, to the limitation of liability by conditions of carriage under which Bangladeshi law was “incorporated” (per Bingham, L.J.) or as a limit of 9,500 lakhs “by contract or by the Bangladesh Carriage by Air Act 1934” (per Leggatt, J.). Furthermore, the present case does not involve the application of an international agreement (other than by unilateral legislative election in a jurisdiction other than that of the proper law as found by the court). See below.
6. At p. 124, per Dillon, L.J.
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