Legal Analysis - Case Study Example

Laroche v Spirit of Adventure [2008] EWHC 788 The Facts On receiving a gift voucher from a friend, the claimant Laroche, participated in a hot air balloon flight organised by the defendant, Spirit of Adventure. A forced landing resulted in an injury to the claimant. Subsequently, the defendant company went into liquidation; but its insurers agreed to negotiate with the claimant. This process took some time, and the moment 2 years had elapsed from the date of the accident; these insurers refused to have any further negotiations with the claimant, because the latter’s claim was time barred as per the provisions of the Warsaw Convention. Subsequently, Laroche made a claim in the High Court of England and Wales, for personal injury against the defendant, which was dismissed. Laroche appealed against this decision in the England and Wales Court of Appeal. The High Court had held that his claim had been extinguished, on the basis of Schedule 1, Article 29 of the Carriage by Air Acts (Application of Provisions) Order 1967. Thereafter, the Spirit of Adventure underwent voluntary liquidation, but it was appropriately restored, so that Laroche could claim damages for the injury caused to him. Issues The issues raised were whether 1. the claim was subject to the provisions of the Warsaw Convention; 2. were passengers carried on an aircraft, for pecuniary benefit; 3. extension of the limitation period; and 4. estoppel and waiver in respect of Article 29 if possible . Reasoning In England, all claims are subjected to the application of the Non – International Rules and they also fall within the scope of the Warsaw Convention on International Carriage by Air 1929. Thus, the concept of exclusivity of claims is governed by the Carriage by Air Act of 1961. In this case, the claim was made under article 29 of Schedule I. Under this article, the parties have to make a claim within a period of two years. Thus, the claim in this case was not valid, since two years had already transpired. The claimant could not invoke his right to action. Section 651 of the Companies Act 1985 sets aside such limitation. Nevertheless, article 29 could not be excluded in order to invoke the doctrines of estoppel or waiver under English law1. Held It was held by the court that Laroche’s claim was governed by Schedule 1 of the 1967 Order. This Order provides an exclusive cause of action; and Laroche could invoke this schedule to his claims. However, he had failed to make a claim within two years. Thus, he was precluded from invoking Schedule 1 article 292. Conclusion This is a landmark case in the area of accidents, during carriage by air or sea. It served to establish that the provisions of International Conventions will be applied to claims in such accidents. The provisions apply to claims in domestic or international accidents. The conventions provide remedies to the claims for damages, and are to be regarded as legislation in this area. Case Commentary Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 deals with accident claims that occur during transportation by air or sea. The Court of Appeal stated that according to article 1 of this Act, a hot – air balloon was an aircraft. The person flying in such a balloon would constitute a passenger of that aircraft, under the provisions of article 17 of this Act. This applies irrespective of whether the individual had paid for the flight or not3. In the present case, the hot air balloon was utilised for carrying passengers. A major activity of the defendant was to provide balloon flights for reward. Therefore, in accordance with the Air Navigation Order 2000, these flights were designed for public transport. As a consequence, the regulatory requirements of the Air Navigation Order 2000 were applicable to these balloon flights4. It dismissed the claim made by Laroche against the defendant company the Spirit of Adventure (UK). The claim was made, in respect of the injuries caused during a flight in a hot – air balloon that was operated by the defendant. The injuries were caused in August 2003 and the claim was made in August 2006. Article 29 of Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967 requires that all claims must be made within two years from the date of the accident. This two year period is the limitation period established by the statute for claiming damages5. Dyson LJ stated that Schedule 1 did not apply to machines that could not be utilised in international transport. However, hot – air balloons were capable of being used as a means of international transport. Such, balloons were used for the purpose of transportation before the invention of the aeroplane, and these had been employed in the past for cross-border transportation. Moreover, hot – air balloons have the capacity to undertake transport over great distances. Since, the majority of the nations have land borders, hot – air balloons that are launched near the border of a nation, tend to cross the border. At present, hot air balloons are designed to carry passengers from one place to another6. The Air Navigational Order 2000 (ANO) established certain standards for aircraft that undertook public transportation. Articles 129(1) and 130 (2) deal with valuable consideration promised for the transport or carriage of persons or goods in aircraft. Hot – air balloons used as a mode of transportation have to be registered, as per the requirements of Article3 and Schedule 3. The air operator must have obtained a licence or certificate from the relevant authority. In the absence of such a licence or certificate, the air operator will not be permitted to transport goods or persons. In addition, the aircraft must hold a valid airworthiness certificate to carry persons or goods, and this is mandatory, in accordance with Article 8 and Schedule 37. The Air Navigation Order 2000 imposes the same regulatory regime on hot air balloons that carry passengers, as commercial aircraft employed in public transport. Therefore, it can be surmised on a reasonable basis that Parliament’s intention was to subject these balloons to Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 19678. In his ruling, Dyson LJ made a reference to the Fellowes v Clyde Helicopters Ltd case; wherein, a police sergeant, on board a helicopter had succumbed, due to a crash of the helicopter. This police officer had been on board the helicopter, in the course of his aerial surveillance duties. It was held by the House of Lords that the deceased police officer was a passenger, as he had no responsibility for operating the helicopter9. Thereafter, he referred to the Disley v Levine case, in which a student of paragliding had sustained injuries, while taking lessons. The Appellate Court ruled that she was not a passenger, as her purpose; in undertaking the flight was to obtain instructions in paragliding10. On the basis of these judgements, Dyson LJ, declared that a passenger was an individual who makes no contribution towards the transport of either himself or other individuals aboard the aircraft. In addition, a passenger was a person whose chief reason for being on board the aircraft is to be carried from one place to another. Consequently, Laroche was a passenger in the hot air balloon, regardless of the fact that he was unaware of final destination of this balloon11. The reason behind the flight could prove to be of great relevance in determining whether Laroche could be treated as a passenger. Policy reasons for adopting a restrictive approach to the scope of the Convention and Schedule 1had not been put forth. Moreover, the mere fact that the hot air balloon flight was for recreational reasons was insufficient to establish that the Convention and Schedule 1 did not apply12. The term aircraft could be understood to imply a means of transport of passengers or goods, by air. Hence, a hot air balloon could also be construed to be an aircraft, because the hot air balloon was designed to carry passengers; and it was capable of transporting them from one place to another. Despite being utilised for recreational purposes and the fact that it was not used on a regular basis for international transport, could not be interpreted as implying that a hot air balloon was not an aircraft. In the past, hot air balloons had been widely used for international transport, prior to the invention of airplanes. The Air Navigation Order 2000 has recognised hot air balloons as aircraft. It classified hot air balloons as passenger carrying vessels and subjected it to several fundamental regulatory controls. These controls had also been applied to the regular commercial aircraft13. Parliament subjected hot air balloons to Schedule 1of the 1967 Order. This statute made all carriage by air subject to the Convention. As such, there was no valid reason for excluding hot air balloons from the category of aircrafts. Passengers were not under a requirement to travel, under a contract or carriage. There was no requirement for travel to be determined by a contractual agreement that mentioned the departure and destination of passengers14. Article 1 (2) of the Convention refers to the place of departure and destination, and is based upon the agreement between the parties, in this regard. However, it merely serves the purpose of categorising the carriage as international. At this juncture, it is very important to realise that this article does not require the places of departure and destination to be decided upon, in advance15. In this case, Laroche relied on Regulation 2027/97; which has no relevance to this case. The case involved air carriage by a hot air balloon and the flight of passengers. Laroche was a passenger, in accordance with the meaning of Schedule 1 Article 17. As his presence in the hot air balloon had no bearing on the operation of the balloon, he was not a member of the hot air balloon’s crew. In Disley v Levine, the claimant had been present on the flight as a pilot under instruction16. The Court had rightly concluded that the hot air balloon, in which Laroche had been travelling, was an aircraft; in accordance, with the description made available at Schedule 1 Article 1 of the Carriage by Air Act (Application of Provisions) Order 1967. The Court also opined that the claimant had been travelling in the hot air balloon as a passenger. Laroche claim, relating to personal injury was dismissed as it was time barred. Bibliography Air Navigational Order 2000 Carriage by Air Act of 1961 Carriage by Air Acts (Application of Provisions) Order 1967 Disley v Levine (t/a Airtrak Levine Paragliding) [2001] EWCA Civ 1087, [2002] 1 WLR 785 Fellowes v Clyde Helicopters Ltd (1997) AC 534 HL Laroche v Spirit of Adventure (UK) Ltd, [2009] EWCA Civ 12, [2009] 2 All ER 175 Section 651 of the Companies Act 1985 Schedule 1 of the 1967 Order Warsaw Convention on International Carriage by Air 1929 Read More