What plaintiff attorneys are apt to regard as the strait-jacket of the Warsaw Convention provides but little assistance to claimants attempting to circumvent the convention clauses which bestow upon the air carrier a protective monetary limit to its liability for death or injury to passengers. Of the weapons that are available it is without doubt the concept of wilful misconduct enshrined within art. 25 which has proved of greatest utility.

It is perhaps timely to review the practical significance of this Article, particularly in the light of two recent European decisions—one English and one Belgian. The text of art. 25 of the original convention as adopted in Warsaw in 1929 reads as follows:—

“(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.

“(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.”

It is appropriate to turn first to the construction of these sentences in the United Kingdom since art. 25 is one of the few provisions of the convention which the English courts have been called upon to consider.

The issue arose for examination in Horabin v. BOAC [1952] 2 All E.R. 1016, a case consequent upon an accident to a Dakota on Jan. 11, 1947. The aircraft took off from London en route for Lagos at 9.50 a.m. Upon encountering bad weather over southern France the crew retraced their steps towards the Channel, eventually crashing near Ashford, Kent, at 4.06 p.m. with fuel reserves almost exhausted. In an effort to recover more than the limit of liability of approximately £3,000 the plaintiff passenger pleaded wilful misconduct on the basis of a catalogue of alleged failures on the part of the airline. Inter alia, it was contended that the crew was insufficiently experienced for the flight and had not been provided with adequate maps.

In summing up for the benefit of the jury, Barry, J., had no hesitation in asserting that wilful misconduct was “wholly different in kind from mere negligence… however gross that negligence may be.” Nevertheless he went on to conclude that misconduct, especially in the context of the relatively hazardous business of air travel, might constitute no more than a minor breach of regulations. However, for such misconduct to become “wilful” it must be shown that “the person who did the act knew at the time that he was doing something wrong and yet did it notwith-