In the August, 1977, issue of this publication ([1977] 3 LMCLQ 370) reference was made to the case of Fothergill v. Monarch Airlines Ltd. which went to trial because of the desire of the insurers of the defendant airline to probe the extent to which the English High Court was now prepared to acknowledge and rely upon the legislative history of an international convention when construing its alleged ambiguities.

It will be recalled that in this case the defendants failed to persuade the court that it should give weight to “extrinsic material”—save in certain narrowly confined circumstances—when construing domestic legislation designed to implement the Warsaw Convention.

It is of interest to compare the English approach with that of the Federal jurisdiction in the United States—the latter’s perspective being well reflected in another 1977 decision, that handed down by the U.S. Court of Appeals in Reed v. Wiser.

On Sept. 8, 1974, a TWA Boeing 707 disintegrated at altitude over the Ionian Sea when an infernal device exploded. All aboard the aircraft perished. In any action against TWA arising out of the accident potential plaintiffs faced the difficulty that under the Warsaw Convention as amended by the Montreal Agreement the air carrier, although strictly liable for the deaths of passengers, was entitled to limit the amount of that liability to U.S. $75,000 per person.

In an ingenious attempt to recover more substantial sums in line with ordinary U.S. common law principles on compensatory damages, attorneys acting for the estates of various passengers wholly ignored TWA as contracting carrier. Instead they filed suit based in negligence against the President of the airline and the Vice-President responsible for security. It was pleaded that the proximate cause of the deaths of the passengers was the failure of these corporate employees of TWA to arrange for and maintain an adequate security system to protect the airline’s operations from the international terrorist threat.

By way of defence Messrs. Wiser and Newman argued, inter alia, that whether the plaintiff’s allegations could be substantiated or not, the amount of damages recoverable was still restricted to $75,000 per passenger since the employees of a carrier were also entitled to the protection afforded to their employers by those provisions of the Warsaw Convention which established the monetary limit to liability.

Article 22 of the original 1929 wording of the Convention provides that: “In the carriage of passengers the liability of the carrier for each passenger shall be limited to the sum of ($75,000).”