On Mar. 13, 1975, Mr. Fothergill returned to Luton Airport at the end of a holiday in Rome. When he collected his baggage he noticed that one side seam of a suitcase was torn away. He filed a written complaint describing the damage before leaving the airport. It was not until he reached home that he realised, in addition, that some of the contents of the case were missing.

Mr. Fothergill claimed against his own insurers the sum of £12 in respect of the damage to the case and £16.50 in respect of the missing items. The insurers settled the claim and proceeded to seek recovery from Monarch Airlines Ltd., the carrying airline. The airline’s liability insurers agreed to meet the claim for the damage but repudiated the claim for the missing articles on the grounds that notice of the alleged loss was not submitted within seven days as required by art. 26 of the Warsaw Convention as amended at The Hague.

Article 26(2) requires that “in the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and at the latest within seven days from the date of receipt in the case of baggage …”

1977, Mr. Justice Kerr gave judgment in the High Court in their favour. In answering the question whether “damage” in the sense of physical injury in art. 26(2) included loss of the contents of baggage, Mr. Justice Kerr roundly declared that “if Article 26 is to be construed in the normal way, there can only be one answer.” He agreed with the sentiments of the New York City Judge in Schwimmer v. Air France (1976 AV Cas 17/466) that “damage is damage and loss is loss.” The Convention only required written notice to be submitted within a prescribed period as a precondition for the carrier’s liability in cases of damage. No such limitation applied to claims for loss and the claim for £16.50 arose out of what, using the word in its ordinary English sense, constituted a loss.