SOUTH AFRICAN AIRWAYS v. PROSOFT TECHNOLOGIES LIMITED
(2016)LCN/8282(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/L/849/2014
RATIO
AVIATION LAW: THE MONTREAL CONVENTION OF 1999 ON THE LIABILITY OF THE CARRIER BY AIR FOR DAMAGES SUSTAINED
A preliminary point of note in the resolution of this issue is that the trial court rightly noted and also agreed by the parties that this case fall squarely within the exclusion established by the Montreal Convention 1999 (MC99) which has been domesticated as an Act in this country under the Civil Aviation Act, 2006. At core in the resolution of this issue are the provision of Article 18, 19 and 22 of MC99 which provide thus:
“18. (1) The carrier is liable for damage sustained in the event of the destruction or loss, of damage to cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.
2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damages to the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other that the carrier of its servants or agents;
(c) an act of public authority carried out in connection with the entry, exit or transit of the cargo.
(3) The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.
(4) The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage which is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to the carrier by air, such carriage by another mode of transport is deemed to be within the carriage by air.”
19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damages occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damages or that it was impossible for it or them to take such measures.
20¦
21¦
22. 1. In the case of damage caused by delay as specified in Article 19 in carriage of persons, the liability of the carrier for each passenger is limited to 4150 United States dollars.
2. In the carriage of luggage, the liability of the carrier in the case of destruction, loss damage, or delay is limited to 1000 United States dollars for each passenger unless the passenger has made, at the time when the checked baggage was handed over the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater that the passenger’s actual interest in delivery at destination.
3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss damage or delay is limited to a sum of 20 United State dollars per kilogram, unless the consignor has made, at the time when the package was handed over the carrier, a special declaration of interest in delivery at a destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determination, the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damages of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 Article 4, total weight of such package or packages shall also be taken consideration in determining the limit of liability.
5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servant or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
6. The limits prescribed in Articles 21 and in this Article shall not prevent the court from awarding, in accordance with its own rules of procedure in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, including court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the Plaintiff within a period of six months from the date of the occurrence causing the damage, of before the commencement of the action if that is later.”
A review of the facts and argument of counsel reveals that this case falls solely within liability of the Appellant carrier and extent of compensation for damages with respect to cargo and no more. While Article 17 of the Montreal Convention establish that the carrier is liable for damage sustained, in case of an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking as well as in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier, Article 18 establish that the carrier is liable for damage sustained in the event of the destruction or loss of, or damage to cargo during carriage and Article 19 establishes that the carrier is liable for damage occasioned by delay.
Generally, the liability of a carrier under MC99 is subject to certain limits. See HALSBURY LAWS OF ENGLAND (2003) 4th Edition, VOLUME 2(3), pp 590-591. Article 22 limits the liability of carrier in the case of damages for the loss of cargo. Ipso facto, Article 22(3) mandatorily states that unless the consignor, at the time when the cargo was handed over to the carrier, a special declaration of interest of the delivery at destination and has paid a supplementary sum, if the case so requires, the liability of the carrier in the case of destruction, loss, damage or delay in the carriage of cargo shall be limited to a sum of 17 Special Drawing Rights per kilogram. Where a special declaration is made by the consignor at the time of delivery of the cargo to the carrier, the latter will be liable to pay a sum not exceeding the declared sum. The only exception is where it is proven that the sum is greater than the consignor’s actual interest in delivery at destination of the cargo. On the other hand, Article 22(4) clearly states that the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package(s) concerned.
Meanwhile, Article 29 of MC99 is categorical on the basis of claims under the Convention. It states:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
The key provision at the core of the Montreal Convention’s exclusive set of rules for liability is Article 29. This provision makes clear that the Montreal Convention provid.es the exclusive recourse against airlines for various types of claims arising in the course of international carriage by air. Article 29 establishes that in relation to claims falling within the scope of the Montreal Convention, “any action for damages, however founded” may only be brought “subject to the conditions and such limits of liability as are set out in this Convention”. See: THIBODEAU v. AIR CANADA [2014] 3 S.C.R 340.
In the instant case, the learned trial judge had held at page 324 of the record that:
“The Defendant has not challenged or contradicted the evidence of the Plaintiff proffered under the Civil Aviation Act 2006 Articles 11 and 13 of Chapter of the Schedule and Chapter 3 (schedule) Article 18 and 22. The acts and omissions were pleaded and particulars were given in the Plaintiff statement on oath Exhibit P1, P2 and 2nd and the additional statement on oath filed on 17/5/2013. Under Carriage by Air, Colonies Protectorates and Trust Territories order 1953 otherwise known as Warsaw Convention but now repealed by the Civil Aviation Act 2006 Articles 23(1) provided that carrier committing willful misconduct cannot limit liability to the amount stated in the Convention stating the limit of liability of the courier. This was the decision of the Supreme Court in the case of Cameroun Airline v. Otutuina (2011) ALL FWLR (Pt. 5700) 1260 SC.
Articles 18 and 22 of the Civil Aviation Act 2006 reproduced Article 25(1) of the repealed carriage by Air (Colonies Protectorates and Trusts) Territories Order in 1953 but without the word “Willful”.
The above-cited case was decided in favour of the Respondent that the Appellant was guilty of “Willful” misconduct. There is now no need to prove the mental element of “Willful” misconduct of the Air carriage as in this suit. The court also said at page 1290 when the carrier commits willful misconduct the Respondent is entitled to more damages than the limit set in articles 22 of the convention Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) 487 presents similar reasoning. In that case it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents. The Plaintiff would be entitled to more damages than the limit in Articles 22 (supra) while the carrier had committed willful misconduct. The case of the plaintiff is based on Articles 18 and 22 of chapter 3 Schedule of the Civil Aviation Act 2006. Willful conduct need not now be proved as a mental element. It is enough to plead acts of commission and omission by the Defendant. However in this case the Plaintiff’s evidence is strong and compelling to prove liability beyond the limit of liability of the Defendant if any as provided under the Civil Aviation Act 2006 and the Regulations and Articles made there under¦” (Underline Mine) per, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
AVIATION LAW: WHETHER THE PROVISION OF LAW ON WILLFUL MISCONDUCT APPLICABLE UNDER WARSAW CONVENTION IS APPLICABLE IN THE DETERMINATION OF THE LIABILITY OF A CARRIER
It is beyond dispute that the Carriage by Air (Colonies, Territories and other Trust Territories) Colonial Order, 1953 referred to by the trial judge has been repealed by virtue of Section 77 of the Civil Aviation Act, 2006, so that the provision as to ‘willful misconduct’ applicable under the Warsaw Convention becomes inapplicable. In the Report by United Nations Conference on Trade and Development (UNCTAD) on Carriage of goods by Air: A Guide to International Legal Framework, 2006, the UNCTAD Secretariat noted at pages 38 to 39 thus:
“150. Under the Warsaw Convention 1929 a carrier may not rely on the monetary cap limiting his liability in cases where the carrier or any of his agents acting within the scope of their employment are guilty of “willful misconduct” This affects also cases where a special declaration of value at delivery has been made. In these cases, the carrier’s liability will, therefore, not be limited to the declared value.
151. “Willful misconduct” is not defined in the Warsaw Convention 1929, but would seem to require a degree on intention or subjective recklessness. According to the relevant provision, the same consequences arise in cases of “willful misconduct” or “such default¦ (by the carrier or his agents acting within the scope of their employment) as, in accordance with the law of the Court seised of the case is considered to be equivalent to willful misconduct”. Therefore, the Warsaw Convention 1929 leaves the determination of whether or not the carrier or his agents acting within the scope of their employment are guilty of the relevant misconduct to the law of the court before which a case is brought.
152. The Warsaw-Hague Convention 1955 sought to clarify the meaning of the term “willful misconduct” and replaced it with the phrase “act or omission of the carrier or his servant or agents acting within the scope of their employment ¦ done with intent to cause damage or recklessly and with knowledge that damage would probably result.”
153. A case relevant to damage to cargo, where the issue of interpretation of this phrase was decided in Australia. The carrier’s agents could see marks on the cargo indicating that it should be stored in the dry, as well as note the poor state of the plastic wrapping. Moreover, it was raining at the time and apparent that a typical Sydney summer thunderstorm was likely. Nonetheless, the carrier’s agent left the cargo uncovered in the open, exposed to the storm. The court found that the agents of the carrier “must have know that such ‘deplorably bad handling’ of the cargo would probably result in damage to the cargo”. As a result, the carrier was deprived of the right to limitation of liability.
154. The effect of a finding of “willful misconduct”, both under the Warsaw Convention 1929 and the Warsaw-Hague Convention 1955, is that the carrier loses the benefit of the monetary cap limiting his liability. The carrier will however, not be liable beyond any actual loss proven by the claimant.
155. It is important to note that under the Warsaw-Hague-MAP 4 Convention 1975 and Montreal Convention 1999 the financial limitation of the carrier’s liability is “unbreakable”, as the relevant provisions on the effects of serious misconduct do not apply to the carriage of cargo. This is a major change which simplifies the settlement of claims related to cargo and avoids lengthy and costly litigation. However, it also means that a consignor may have a greater incentive to provide a declaration of value for inclusion in the air waybill. Otherwise, even in cases of intentional misconduct of the carrier, any compensation would be limited to 17 SDR per kilogram.” (Underline Mine)
In a similar vein, this court, in EMIRATES AIRLINES v. AFORKA (2014) LPELR-22686, pp 33-34, paras B-C, held that the law on willful misconduct is applicable to case of loss of cargo with respect to carriage by air. After reviewing the decisions if the Apex Court in CAMEROON AIRLINES v. JUMAI ABDUL-KAREEM (2003) 11 NWLR (Pt. 830) 1; CAMEROON AIRLINES v. OTUTUIZU (supra); HAKA AIR SERVICES (NIG.) LTD KEAZOR (2011) 13 NWLR (Pt. 1264) 320, my learned brother, per IYIZOBA, JCA held:
“The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why the carrier of cargo was excluded in the provisions. It appears the position may have been different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo. ¦From the exclusion of negligence and willful misconduct in the case of carriage of cargo in article 22 (5) and Article 30 (3) I am of the firm view the Montreal Convention did not intend that those concepts should affect the limitation of liability with respect to carriage of cargo.” per, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
AVIATION LAW: THE SCOPE OF THE LIABILITY OF A CARRIER REGARDING ACTS AND OMISSION
With respect to the liability of a carrier regarding acts and omission of the Appellant carrier, its servant or agent; the provision of Article 22 (3) and (5) of MC99 leaves no one in doubt as to the scope its liability. For the purpose of emphasis, Article 22(5) reads:
5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servant or agents, done with intent to carrier damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
Commenting on the purport above provision, particularly as it also related to the instant case, Per Iyizoba , JCA in EMIRATES AIRLINES CASE (supra) noted at pp 22 to 30, paras F-G that:
“It is important and noteworthy that the above paragraph excluded 3 which deals with liability in the case of carriage of cargo. The clear intention to exclude carriage of cargo is confirmed by Article 30 which deals with actions brought against a servant or agent of the carrier. They are also entitled to the limits of liability under the Convention just as the carrier¦”
As earlier noted Article 22(3) mandates that a consignor must have made a special declaration of interest and also pay any sum required, before it can be held liable beyond the limit of liability set out there under. In the instant case, it is established fact that the case of the Respondent was based on the contract of carriage by air of its cargo entered into with the Appellant and evidenced by Exhibit P3 (d) (Copy of Air Waybill No.: 083-80218205 dated 19th October, 2010). There is no evidence on record showing that the Respondent ipso facto complied with Article 22(3) of MC99 as to the making of special declaration of interest or payment of any required sum. A perusal of Exhibit P3 (d) found at page 23 of the Record reveals that this was not done. A fortiori, it is clear from the on the top right-hand corner of Exhibit P3 (d) that the Appellant will in any event rely on carrier’s limitation of liability. The reads:
“It is agreed that the goods described herein are accepted in apparent good and order condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE. THE SHIPPER’S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER’S OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplementary charge if required.” per, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
SOUTH AFRICAN AIRWAYS (CARGO) Appellant(s)
AND
PROSOFT TECHNOLOGIES LIMITED Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the leading Judgment):
This is an appeal against the judgment of the Federal High Court, Lagos Division; coram Buba J., delivered on 28th May, 2014. The Respondent/Claimant had sought against the Appellant/Defendant the following reliefs:
7. The Plaintiffs claim against the Defendant as a courier for reward is damages of US$53036.53 in naira equivalent at the exchange rate of N150.00 per US dollar for the failure by the defendant, its agents and or servants to deliver to the plaintiff its computer hardware of several parts delivered to defendant in South Africa by the plaintiffs agents for delivery to the plaintiffs in Lagos under waybill No. 08380218025 dated 20/10/2010.
In the alternative the plaintiffs claims against the defendant damages in naira of US$53036 to US dollar in naira for breach of duty as a bailee of the plaintiffs of computer hardware delivered by the plaintiff to the defendant in South Africa as a common carrier for delivery to the plaintiff in Lagos which the defendant has failed to deliver to the plaintiff despite repeated demands.
2. The plaintiff claims interest of 21% from 20/10/2010 to date of judgment and 10% interest on judgment debt until it is fully liquidated.”
A brief fact of the dispute leading to this appeal will suffice. The Respondent entered into a contract of carriage by air with the Appellant to carr5r five (5) packages containing computer hardware (“the cargo”) from Johannesburg, South Africa to Lagos, Nigeria on or about the 19th of October, 2010, as evidenced by Air Waybill number 08380218025 but that the Appellant did not deliver the said cargo whose value is in the sum of US$53,036.53 to it in Lagos. The Respondent alleged that it made exhaustive enquiries from the Appellant both in South Africa and in Lagos on the whereabouts of the cargo but to no avail and that it made demands in writing in respect of the cargo on the Appellant on 12th December, 2010 and 14th of December, 2010 but that the Appellant refused to return the cargo.
The Respondent subsequently instituted the action leading to this appeal vide a Writ of Summons and Statement of Claim dated and filed 16/02/2011. Pleadings were filed and exchanged. At the trial, both parties called one witness each. After the address of counsel, the learned trial judge delivered his final judgment on 28th May, 2014 wherein it dismissed the Respondent’s relief No. 2 and the 1st leg of relief 3 as per the Amended Statement of Claim. Being dissatisfied with the judgment of the lower court, the Appellant filed a Notice of Appeal dated 25th August, 2014 on three (3) grounds. The Appellant filed its Brief of Argument dated 24/11/2014 and filed on 4/11/2014 as well as a Reply Brief dated 30/06/2015 and filed 01/07/2015. Both were settled by L. Fubara and Akinloye Ajayi of Aelex Law Firm. Two issues were formulated for determination thus:
1. Whether the lower court was right when it awarded damages in the sum of N7,955,389.00 in favour of the Respondent, notwithstanding that there was nothing on the records showing that the Respondent made a special declaration in respect of the lost cargo and that it paid a supplementary sum (if required). (Ground 1 & 2).
2. Whether the lower court was right when it held that the 2nd issue canvassed by the Appellant in its final address was a non-issue, thereby failing to determine the point whether or not, in the circumstances of the case, the limitation of liability as prescribed under the Montreal Convention 1990 should apply to the Appellant’s liability (if any). (Ground 3).
The Respondent’s Brief of Argument dated 27/10/2015 and filed 03/02/2015 but deemed properly filed, 17/06/2015 is settled by G. I. J. Akhigbe. A sole issue was nominated for the determination of this appeal thus:
“Whether the Judgment of the lower court was founded solely on the provisions of the Civil Aviation Act 2006 and the regulations and Articles made thereunder for the Respondent to be entitled to the judgment of the court on its claims.”
At the hearing of the appeal on 08/02/2014, counsel adopted their briefs and urged us, accordingly.
Arguing issue one, Appellant’s counsel submitted that the lower court rightly found that the contract between the parties was one for carriage by air of the Respondent’s cargo and that it is governed by the Montreal Convention. He referred to the judgment of the lower court at page 309 to 310 of the record before then submitting that the lower court ought to have proceeded to determine if the Respondent proved its case pursuant to or in line with the Montreal Convention. Counsel contended that Article 18 of the Montreal Convention makes the carrier liable for damage sustained in the event of loss of cargo provided the loss took place during the carriage by air and goes on to define ‘carriage by air’. It is also the contention of counsel that Article 22 of the Montreal Convention limits the liability of the carrier in the case of damages for loss of cargo. Counsel submitted that from the pleadings and evidence at the lower court, particularly on the face of Exhibit P3 (d) (Copy of Air Waybill No.: 083-80218025 dated 19th October, 2010), it is clear that there was no special declaration made by the Respondent as required by law, even though the Appellant put the Respondent to proof on this point as per paragraph 4 of the Statement of Defence and its witness also gave evidence in this regard at paragraph 7 of his Witness Statement on Oath. He cited AKANBI v. ALAO [1989] NWLR (Pt. 108) 118; TNDOH v. CFAO of ACCRA & ANOR (1944) 10 WACA 186; ATUGBUE v. CHIME (1963) 1 ALL NLR 208.
Counsel submitted that in the absence of such required special declaration, the Appellant’s liability (if any) became automatically limited in line with the provisions of Article 22(3) of the Convention and that there is even an endorsement on the face of Exhibit P3 (d) indicating that the carrier (the Appellant) shall be entitled to limit its liability under the Montreal Convention. It is the submission of counsel that the Respondent failed to declare the value for the cargo and also failed to do customs declaration. He contended that having failed to make the required declaration and pay a supplementary sum (if required), the liability of the Appellant should be limited to a sum of 17SDR per kilogram of the cargo. He relied on EMIRATE AIRLINE v. AFORIKA (2014) LPELR-22686 to submit that the lower court had no basis in law to have made an award that was beyond the prescribed limits under the Montreal Convention as it did thereby placing something on nothing contrary to the well established principle in U.A.C. LTD v. MACFOY (1961) 3 ALL ER 1160. Counsel cited ODUNZE v. NWOSU (2007) 13 NWLR (Pt. 1050) 46 to submit that the lower court ought to have dismissed the case of the Respondent. He noted further that had the lower court applied the limitation of liability as it was required to on the basis of the evidence led, the total monetary value of the lost cargo would have been US$25.1 multiplied by 78.5 Kilograms = US$1,970.23 due to the fact evidence of the weight of the cargo demonstrate that the total weight of the Respondent’s cargo of five (5) packages containing hardware is 78.5 kilograms and under the Montreal Convention, a Plaintiff would be entitled to 17SDR per kilogram. He referred to Article 23(1) of the Montreal Convention before submitting that, using the International Monetary Fund (IMF) conversion scale from SDR to United States Dollars as indicated on IMF website, 17SDR was equal to US$25.1 as at 28th May 2014 when the lower court delivered its judgment, so that the Appellant’s liability will be limited to a total sum of US$1,970.23.
Counsel argued further that the lower court rather than deal with the issues as prescribed under Article 22(3) of the Montreal Convention chose rather to consider extraneous matters and by so doing came to the conclusion that the Respondent was entitled to the full value of the cargo and that the Respondent was entitled to damages as claimed either from the point of view of willful misconduct or from the point of view of acts and omissions of the Appellant. He referred, to page 327 of the Record to further submit that the correct position of the law is that the principles of law on willful misconduct and acts or omissions have no bearing on the determination of the liability of a carrier in a contract for carriage of cargo by air. Counsel noted that although the law under the Warsaw Convention, 1929 which was in force in Nigeria till 14th November, 2006, requires a Plaintiff seeking damages for lost cargo to prove willful misconduct on the part of the carrier, which law abated in November 2006 by virtue of section 77(1) of the Civil Aviation Act, 2006. He referred to EMIRATE AIRLINE (supra) to submit that Montreal Convention is applicable. Counsel noted that while the issue of acts or omissions of the carrier, agent or servants done with intent to commit damage or recklessly and with knowledge that damage would probably result, exist under the Montreal Convention, same only relate to cases of loss/destruction of and delay to a passenger’s baggage but not to cases of lost cargo as in the instant case. He argued that the learned trial judge erred when it held that Article 18 and 22 of the Montreal Convention reproduced Article 25(1) of the Warsaw Convention 1,929 but without the word ‘willful’, so as to make the proof of willful misconduct or proof of acts and omission of the Appellant applicable to a case of lost cargo. It is the submission of counsel that since the subject matter of the instant suit does not relate to delay to a passenger or a passenger’s baggage, neither a successful proof of willful misconduct nor a successful proof of act or omission of the Appellant would have entitled the Respondent to damages as claimed. He relied on MR. T. B. OGUNMADE v. CHIEF E. A. A. FADAYIRO (1972) ALL NLR; (1972) 8-9 S.C. 1 before urging the court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent in his brief submitted on its sole issue formulated that the lower court comprehensively reviewed the pleadings, evidence and exhibits tendered by the parties before it as well as the Civil Aviation Act, 2006 before submitting further that in the case of SIDHU v. BRITISH AIRWAYS PLC (1997) ALL ER 430 referred to by the Learned Trial Judge, in all questions relating to the carriers liability, it is the provisions of the Convention which apply and the passenger does not have access to any other remedies whether under common law or otherwise. He contended that the provision of section 48(1) and (2) of the Civil Aviation Act, 2006 are applicable to the instant case. Counsel submitted that Articles 18, 19 and 22 (1) to (5) of the Montreal Convention are also applicable. He referred to the definition of “consignor” as per Blacks Law Dictionary, 8th Edition, page 327 to submit that the Respondent is the Consignor in this case and not a passenger. Counsel relied on EMIRATES AIRLINE v. NGONADI (2012) ALL FWLR (Pt. 741) 1609 at 1655-1657 to submit that the party who claims damages must rely on credible evidence to be entitled to the general and/or special damages claimed. Referring to the judgment of the trial court, counsel argued that the Appellant is liable to the Respondent for the full damages claimed under Articles 18, 19 and 22(5) of Schedules II and III of the Civil Aviation Act, in the event of loss of cargo, delay to deliver cargo to consignor in Lagos or at all and the carrier has committed acts or omission leading to either destruction or loss of cargo or for delay and led evidence on them.
Counsel contended that the Appellant’s brief of argument do not attack the real issue as to the liability of the Respondent considering the provisions of Articles 18, 19, 22 (1), (2) and (5) and that the argument of the Appellant centres on loss or delay to a passenger’s baggage. He noted that the Appellant was neither a passenger nor did it have any baggage of a passenger; that the Appellant is a consignor of cargo, citing section 78 of the Civil Aviation Act, 2006. He argued that a party who intends to rely on any defence provided by statute must plead the statute to give the other party the opportunity to react to the defence but this was not done by the Respondent. It is also the submission of the Respondent that the Appellant was not able to prove that they are entitled to the limit of liability provided for in Article 22(1) and (2) in the light of overwhelming compelling and accepting evidence of the Appellant by the Court based on Article 22(5).
In Reply, Appellant’s counsel submitted, on a preliminary note, that the Respondent failed to address any of the issues raised by the Appellant in its Brief of Argument, inter alia, on the effect of its failure to make a special declaration and pay a supplementary sum (if required) under the Montreal Convention. He argued contrary to the submission of the Appellant, Article 19 (and also Article 22(1)) of the Montreal Convention which relates to delay generally is not applicable to this instant case. Counsel submit that the Appellant is not and can never be considered as a consignor as argued by the Respondent and that the definition of a ‘consignor’ is as contained in the Black’s Law Dictionary and that same perfectly describes the Respondent and/or its agents, He contended that the Respondent’s evidence before the lower court cannot be said to be strong and compelling to prove the Appellant’s liability beyond the limit of the liability if the evidence bothers on ‘the acts of commission and omission’ of the Appellant, as held by the lower court. He submitted that the Appellant failed to give such evidence as required by law before the lower court. It is also the submission of counsel for the Appellant that the case of EMIRATE AIRLINE v. NGONADI (supra) cited and relied upon by the Respondent and the argument made in respect thereof are irrelevant and not applicable to this case. He noted further that contrary to the submission of the Respondent that the Appellant did not plead the statutory defence of limitation of liability, the Appellant did indeed pleaded same in paragraphs 15 and 16 of the Statement of Defence and in full compliance with Order 13 Rule 6 of the Federal High Court (Civil Procedure) Rules 2009. He finally urged that this appeal be allowed.
A preliminary point of note in the resolution of this issue is that the trial court rightly noted and also agreed by the parties that this case fall squarely within the exclusion established by the Montreal Convention 1999 (MC99) which has been domesticated as an Act in this country under the Civil Aviation Act, 2006. At core in the resolution of this issue are the provision of Article 18, 19 and 22 of MC99 which provide thus:
“18. (1) The carrier is liable for damage sustained in the event of the destruction or loss, of damage to cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.
2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damages to the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other that the carrier of its servants or agents;
(c) an act of public authority carried out in connection with the entry, exit or transit of the cargo.
(3) The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.
(4) The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage which is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to the carrier by air, such carriage by another mode of transport is deemed to be within the carriage by air.”
19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damages occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damages or that it was impossible for it or them to take such measures.
20¦
21¦
22. 1. In the case of damage caused by delay as specified in Article 19 in carriage of persons, the liability of the carrier for each passenger is limited to 4150 United States dollars.
2. In the carriage of luggage, the liability of the carrier in the case of destruction, loss damage, or delay is limited to 1000 United States dollars for each passenger unless the passenger has made, at the time when the checked baggage was handed over the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater that the passenger’s actual interest in delivery at destination.
3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss damage or delay is limited to a sum of 20 United State dollars per kilogram, unless the consignor has made, at the time when the package was handed over the carrier, a special declaration of interest in delivery at a destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determination, the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damages of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 Article 4, total weight of such package or packages shall also be taken consideration in determining the limit of liability.
5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servant or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
6. The limits prescribed in Articles 21 and in this Article shall not prevent the court from awarding, in accordance with its own rules of procedure in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, including court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the Plaintiff within a period of six months from the date of the occurrence causing the damage, of before the commencement of the action if that is later.”
A review of the facts and argument of counsel reveals that this case falls solely within liability of the Appellant carrier and extent of compensation for damages with respect to cargo and no more. While Article 17 of the Montreal Convention establish that the carrier is liable for damage sustained, in case of an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking as well as in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier, Article 18 establish that the carrier is liable for damage sustained in the event of the destruction or loss of, or damage to cargo during carriage and Article 19 establishes that the carrier is liable for damage occasioned by delay.
Generally, the liability of a carrier under MC99 is subject to certain limits. See HALSBURY LAWS OF ENGLAND (2003) 4th Edition, VOLUME 2(3), pp 590-591. Article 22 limits the liability of carrier in the case of damages for the loss of cargo. Ipso facto, Article 22(3) mandatorily states that unless the consignor, at the time when the cargo was handed over to the carrier, a special declaration of interest of the delivery at destination and has paid a supplementary sum, if the case so requires, the liability of the carrier in the case of destruction, loss, damage or delay in the carriage of cargo shall be limited to a sum of 17 Special Drawing Rights per kilogram. Where a special declaration is made by the consignor at the time of delivery of the cargo to the carrier, the latter will be liable to pay a sum not exceeding the declared sum. The only exception is where it is proven that the sum is greater than the consignor’s actual interest in delivery at destination of the cargo. On the other hand, Article 22(4) clearly states that the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package(s) concerned.
Meanwhile, Article 29 of MC99 is categorical on the basis of claims under the Convention. It states:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
The key provision at the core of the Montreal Convention’s exclusive set of rules for liability is Article 29. This provision makes clear that the Montreal Convention provid.es the exclusive recourse against airlines for various types of claims arising in the course of international carriage by air. Article 29 establishes that in relation to claims falling within the scope of the Montreal Convention, “any action for damages, however founded” may only be brought “subject to the conditions and such limits of liability as are set out in this Convention”. See: THIBODEAU v. AIR CANADA [2014] 3 S.C.R 340.
In the instant case, the learned trial judge had held at page 324 of the record that:
“The Defendant has not challenged or contradicted the evidence of the Plaintiff proffered under the Civil Aviation Act 2006 Articles 11 and 13 of Chapter of the Schedule and Chapter 3 (schedule) Article 18 and 22. The acts and omissions were pleaded and particulars were given in the Plaintiff statement on oath Exhibit P1, P2 and 2nd and the additional statement on oath filed on 17/5/2013. Under Carriage by Air, Colonies Protectorates and Trust Territories order 1953 otherwise known as Warsaw Convention but now repealed by the Civil Aviation Act 2006 Articles 23(1) provided that carrier committing willful misconduct cannot limit liability to the amount stated in the Convention stating the limit of liability of the courier. This was the decision of the Supreme Court in the case of Cameroun Airline v. Otutuina (2011) ALL FWLR (Pt. 5700) 1260 SC.
Articles 18 and 22 of the Civil Aviation Act 2006 reproduced Article 25(1) of the repealed carriage by Air (Colonies Protectorates and Trusts) Territories Order in 1953 but without the word “Willful”.
The above-cited case was decided in favour of the Respondent that the Appellant was guilty of “Willful” misconduct. There is now no need to prove the mental element of “Willful” misconduct of the Air carriage as in this suit. The court also said at page 1290 when the carrier commits willful misconduct the Respondent is entitled to more damages than the limit set in articles 22 of the convention Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR (Pt. 163) 487 presents similar reasoning. In that case it was held that where a parcel containing valuable cargo is stolen as a result of concerted action taken within the scope of their employment by one or more employees of the carrier who also most probably stole the documents. The Plaintiff would be entitled to more damages than the limit in Articles 22 (supra) while the carrier had committed willful misconduct. The case of the plaintiff is based on Articles 18 and 22 of chapter 3 Schedule of the Civil Aviation Act 2006. Willful conduct need not now be proved as a mental element. It is enough to plead acts of commission and omission by the Defendant. However in this case the Plaintiff’s evidence is strong and compelling to prove liability beyond the limit of liability of the Defendant if any as provided under the Civil Aviation Act 2006 and the Regulations and Articles made there under¦” (Underline Mine)
Although the learned trial judge acknowledged that the Civil Aviation Act, 2006 which domesticated the Montreal Convention applies exclusively to the instant case, he nonetheless found the Appellants liable to the Respondent. This was why the Appellant’s counsel argued that the learned trial judge failed to correctly apply the law to the facts of this case, specifically as it relates to the limitation of liability of the Appellant carrier under the Montreal Convention. Thus, the Appellant is not challenging the finding by the trial court that it is liable for the loss of the cargo, its grouse is the extent of its liability as per the exclusive provision of the Montreal Convention.
It is apparent from the finding and conclusion of the trial court that the learned trial judge based the liability of the Appellant/Defendant on ‘willful misconduct’ as well as ‘acts and omission’ of the Appellant carrier. Appellant’s counsel argued that the correct position of the law is that the principles and/or doctrines of law on willful misconduct and acts or omissions, as relied upon by the trial court have no bearing on the determination of the liability of a carrier in a contract for carriage of cargo by air. I am inclined to agree with the submission of Appellant’s counsel on this point. It is beyond dispute that the Carriage by Air (Colonies, Territories and other Trust Territories) Colonial Order, 1953 referred to by the trial judge has been repealed by virtue of Section 77 of the Civil Aviation Act, 2006, so that the provision as to ‘willful misconduct’ applicable under the Warsaw Convention becomes inapplicable. In the Report by United Nations Conference on Trade and Development (UNCTAD) on Carriage of goods by Air: A Guide to International Legal Framework, 2006, the UNCTAD Secretariat noted at pages 38 to 39 thus:
“150. Under the Warsaw Convention 1929 a carrier may not rely on the monetary cap limiting his liability in cases where the carrier or any of his agents acting within the scope of their employment are guilty of “willful misconduct” This affects also cases where a special declaration of value at delivery has been made. In these cases, the carrier’s liability will, therefore, not be limited to the declared value.
151. “Willful misconduct” is not defined in the Warsaw Convention 1929, but would seem to require a degree on intention or subjective recklessness. According to the relevant provision, the same consequences arise in cases of “willful misconduct” or “such default¦ (by the carrier or his agents acting within the scope of their employment) as, in accordance with the law of the Court seised of the case is considered to be equivalent to willful misconduct”. Therefore, the Warsaw Convention 1929 leaves the determination of whether or not the carrier or his agents acting within the scope of their employment are guilty of the relevant misconduct to the law of the court before which a case is brought.
152. The Warsaw-Hague Convention 1955 sought to clarify the meaning of the term “willful misconduct” and replaced it with the phrase “act or omission of the carrier or his servant or agents acting within the scope of their employment ¦ done with intent to cause damage or recklessly and with knowledge that damage would probably result.”
153. A case relevant to damage to cargo, where the issue of interpretation of this phrase was decided in Australia. The carrier’s agents could see marks on the cargo indicating that it should be stored in the dry, as well as note the poor state of the plastic wrapping. Moreover, it was raining at the time and apparent that a typical Sydney summer thunderstorm was likely. Nonetheless, the carrier’s agent left the cargo uncovered in the open, exposed to the storm. The court found that the agents of the carrier “must have know that such ‘deplorably bad handling’ of the cargo would probably result in damage to the cargo”. As a result, the carrier was deprived of the right to limitation of liability.
154. The effect of a finding of “willful misconduct”, both under the Warsaw Convention 1929 and the Warsaw-Hague Convention 1955, is that the carrier loses the benefit of the monetary cap limiting his liability. The carrier will however, not be liable beyond any actual loss proven by the claimant.
155. It is important to note that under the Warsaw-Hague-MAP 4 Convention 1975 and Montreal Convention 1999 the financial limitation of the carrier’s liability is “unbreakable”, as the relevant provisions on the effects of serious misconduct do not apply to the carriage of cargo. This is a major change which simplifies the settlement of claims related to cargo and avoids lengthy and costly litigation. However, it also means that a consignor may have a greater incentive to provide a declaration of value for inclusion in the air waybill. Otherwise, even in cases of intentional misconduct of the carrier, any compensation would be limited to 17 SDR per kilogram.” (Underline Mine)
In a similar vein, this court, in EMIRATES AIRLINES v. AFORKA (2014) LPELR-22686, pp 33-34, paras B-C, held that the law on willful misconduct is applicable to case of loss of cargo with respect to carriage by air. After reviewing the decisions if the Apex Court in CAMEROON AIRLINES v. JUMAI ABDUL-KAREEM (2003) 11 NWLR (Pt. 830) 1; CAMEROON AIRLINES v. OTUTUIZU (supra); HAKA AIR SERVICES (NIG.) LTD KEAZOR (2011) 13 NWLR (Pt. 1264) 320, my learned brother, per IYIZOBA, JCA held:
“The concept of negligence or willful misconduct obviously cannot work in the case of loss of cargo. It is difficult to prove willful misconduct as the Plaintiff is not in a position to know how the loss came about and no help is likely to come from the carrier in that regard. That must be why the carrier of cargo was excluded in the provisions. It appears the position may have been different under the Warsaw Convention because there are decided authorities where negligence and willful misconduct were considered in cases of loss of cargo. ¦From the exclusion of negligence and willful misconduct in the case of carriage of cargo in article 22 (5) and Article 30 (3) I am of the firm view the Montreal Convention did not intend that those concepts should affect the limitation of liability with respect to carriage of cargo.”
With respect to the liability of a carrier regarding acts and omission of the Appellant carrier, its servant or agent; the provision of Article 22 (3) and (5) of MC99 leaves no one in doubt as to the scope its liability. For the purpose of emphasis, Article 22(5) reads:
5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servant or agents, done with intent to carrier damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
Commenting on the purport above provision, particularly as it also related to the instant case, Per Iyizoba , JCA in EMIRATES AIRLINES CASE (supra) noted at pp 22 to 30, paras F-G that:
“It is important and noteworthy that the above paragraph excluded 3 which deals with liability in the case of carriage of cargo. The clear intention to exclude carriage of cargo is confirmed by Article 30 which deals with actions brought against a servant or agent of the carrier. They are also entitled to the limits of liability under the Convention just as the carrier¦”
As earlier noted Article 22(3) mandates that a consignor must have made a special declaration of interest and also pay any sum required, before it can be held liable beyond the limit of liability set out there under. In the instant case, it is established fact that the case of the Respondent was based on the contract of carriage by air of its cargo entered into with the Appellant and evidenced by Exhibit P3 (d) (Copy of Air Waybill No.: 083-80218205 dated 19th October, 2010). There is no evidence on record showing that the Respondent ipso facto complied with Article 22(3) of MC99 as to the making of special declaration of interest or payment of any required sum. A perusal of Exhibit P3 (d) found at page 23 of the Record reveals that this was not done. A fortiori, it is clear from the on the top right-hand corner of Exhibit P3 (d) that the Appellant will in any event rely on carrier’s limitation of liability. The reads:
“It is agreed that the goods described herein are accepted in apparent good and order condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE. THE SHIPPER’S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER’S OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplementary charge if required.”
Notwithstanding the foregoing, the Appellant also pleaded and gave evidence to the effect that it will rely on the statutory limitation of liability which avails it under MC99. See paragraph 10 of the Appellant’s Statement of Defence at page 139 of the Record and paragraph 13 of the Appellant’s Witness Statement on Oath at page 143A of the Record. Furthermore, as the Appellant’s counsel rightly contended, the Appellant put the Respondent to proof of the fact that the Respondent made special declaration or paid any supplementary sum required under Article 22(3) of MC99. This the Appellant did as per its paragraph 4 of the Statement of Defence at page138 of the Record and its witness also gave evidence on this averment at paragraph 7 of the Appellant’s Witness Statement on Oath at page 143A of the Record thus:
“With regard to paragraph 3 and 4 of the Statement of Claim, the Plaintiff neither declared the value of the cargo herein on the Waybill No.: 083-80218025 dated 19th October 2010 for suppliers in South Africa, as was at no time liable to pay the sum of US$53,036.53 for carriage nor for customs, nor was any supplementary amount paid by the Defendant, nor any insurance taken out on the cargo.”
The above evidence was neither challenged nor contradicted during cross-examination by the Respondent. All the Respondent’s counsel did during cross-examination of the only witness of the Appellant, DW1, was to attack the witness’ evidence on the ground of hearsay. Nothing in the Respondent’s statement of claim, witness statement on Oath as well as on the face of Exhibit P3 (d) shows any compliance with provision of Article 22(3). Therefore, the evidence of DW1 to the effect that the provision of Article 22(3) of MC99 was not complied with by the Respondent, particularly as it relates to making special declaration of interest and payment of supplementary sum, is deemed to have been admitted by the Respondent. See MAISAJE v. HASSAN (2004) 11 NWLR (Pt. 883) 181; EZEANAH v. ATTAH (2004) 7 NWLR (Pt. 873) 648.
Instructively, the consequence of non-compliance with the above referenced condition under Article 22(3) is that a carrier, that is Appellant in the instant appeal, can only be held liable for the loss of the cargo, subject-matter of dispute, to a sum of 17 special Drawing Right (SDR) per Kilogram. To this extent, Article 23(1) of MC99 sets out the basis for conversion of SDR thus:
“23. (1) The sums mention in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgment. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its operation and transaction.”
Therefore, in order to calculate the extent of liability of a carrier, that is the Appellant in the instant case, the value of 17SDR as defined by the International Monetary Fund (IMF) in US Dollars as at the date the judgment of the lower court was delivered will be multiplied by the weight value of the cargo, subject matter of dispute. As at the 28th day of May, 2014 when the judgment being appealed against was delivered by the trial court was delivered, the value of One (1) SDR equals US$1.540870. See the conversion table accessed on the website of the International Monetary Fund (at https://www.imf.org/external/np/fin/data/rms_sdrv.aspx) which provides in detail thus:
Wednesday, May 28, 2014
Currency Currency amount Exchange rate U.S. dollar Percent change in
under Rule 0-1 equivalent exchange rate
against U.S.
dollar from
previous calculation
Euro 0.4230 1.36210 0.576168 -0.183
Japanese 12,1000 101.92000 0.118721 0.020
Pound Sterling 0.1110 1.67550 0.185981 -0.398
U.S. dollar 0.6600 1.00000 0.660000
1.540870
U.S.$1.00 = SDR 0.648984 0.115
SDR1 = US$ 1.540870
See also the May 2014 Report of the Finance Department of the International Monetary Fund on SDR Rates.
Therefore, 17SDRs multiplied by US$1.540870 equals US$26.19479. This is contrary to the submission of the Appellant’s Counsel that the conversion of 17SDRs in US Dollars as at 28th of May, 2014 is US$25.1 as stated in the Appellant’s brief at paragraph 4.1.17 thereof. Meanwhile, it is established on record, particularly as evident on the face of Exhibit P3 (d) that the total chargeable weight value of the Respondent’s five packages is 78.5 kilograms. It is thus safe to conclude that the liability of the Appellant carrier with respect to the loss of Respondent’s cargo is 78.5 kilograms (the weight value of the cargo) multiplied by US$26.19479 which equals US$2056.291.
In the light of the above, I must say that the trial court erred when it failed to consider the limit of liability of the Appellant as per the provision of the Montreal Convention domesticated into Nigeria as per the Civil Aviation Act, 2006 and which applies exclusively to the instant case. Therefore, this issue is resolved in favour of the Appellant.
Dealing with the second issue, counsel submitted it had it had formulated another issue in its final written address found at pages 204 to 210 of the Record to the effect that, if the subject matter of the suit is governed exclusively by the Montreal Convention, will the Defendant’s liability be limited thereunder?, but that the trial court held that same is a non issue. Counsel referred to paragraph 11 of the Amended Statement of Claim and paragraph 11 of the Reply to the Statement of Defence on the one hand and paragraph 10, 15 and 16 of the Respondent’s Statement of Defence to submit that the respective parties to the suit joined issue on the question whether or not the liability of the Appellant should be limited as provided under the Montreal Convention, 1999. He cited LEWIS & PEAT (N.R.I.) LTD v. AKHIMIEN (1976) ALL NLR 365; ODOEMELAM v. NDUKA & ANOR (2012) LPELR-9825 CA; EKE v. OKWARANYIA (2001) 12 NWLR (Pt. 729) 181 at 213-214 before submitting that since parties have joined issue on the question, the lower court ought to have pronounced upon and not taken an evasive posture on issue joined before it, and that this failure by the lower court obviously occasioned miscarriage of justice. He urged that this issue be resolved in the Appellant’s favour.
Respondent’s counsel submitted on this issue that the Appellant raised three issues for the determination in its written address before the lower court but that issues one and two are the same as they both raise the issue as to whether the Montreal Convention, 1999 adopted in Nigeria under the Civil Aviation Act 2006 applies to the Respondent’s relief claimed by it. He argued that there is no appeal against the finding of the trial court that the Montreal Convention applies to the instant case and that an appeal to this court must attack the ratio decidendi in the judgment of the court and not against an issue raised in the written address. He cited GWANDU v. GWANDU (2004) ALL FWLR (Pt. 229) 841, 860 before finally arguing that it is superfluous for the Appellant to have argued that the failure of the lower court to determine issue 2 in its final written address occasioned a miscarriage of justice on which particulars of the miscarriage were not given. He urged that the appeal be dismissed.
It is obvious that this issue deals with the failure of the trial court to consider the limitation of the Appellant carrier’s liability under the Montreal Convention, which I have already considered while resolving the first issue. To this extent, resolution of the instant issue has become academic. This court deals in the determination of live issues and not those academic in nature, which are merely theoretical and are of no practical utilitarian value. See: ODEDO v. INEC (2008) 17 NWLR (Pt. 1117) 554; BOLAJI & ANOR v. TEJUOSHO & ANOR in CA/L/EP/HA/1170/2015.
In the final analysis, I hold that this appeal is meritorious and is hereby allowed. The judgment of the trial court, per BUBA J., delivered on 28th day of May, 2014 is set aside. In its stead, the Appellant is liable to pay damages in Naira equivalent of the sum of US$2056.291 at the exchange rate of N150.00 to One US Dollars and Ten percent (10%) interest on judgment debt from the date of judgment of the trial court until the entire sum is liquidated. Cost of N50,000.00 (Fifty Thousand Naira) is awarded in favour of the Appellant.
SIDI DAUDA BAGE, J.C.A.:
I was obliged in advance a copy of the very illuminating judgment just delivered by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA, which I agree completely with the views expressed and the conclusion reached on the salient issues submitted for the determination of this appeal. My learned brother has exhaustively and quite efficiently resolved the pertinent issues and I have nothing extra to add.
This appeal is, in my view, meritorious and is hereby allowed by me. I abide by all the consequential orders made in the lead judgment. I also agree that the Appellant is liable to pay damages in Naira equivalent of the sum of US$2056.291 at the exchange rate of N150.00 to One US Dollars and Ten percent (100%) interest on judgment debt from the date of judgment of the trial Court until the entire sum is liquidated. Cost of N50,000.00 is awarded in favour of the Appellant.
CHINWE EUGENIA IYIZOBA, J.C.A.:
I read before now the judgment just delivered by my learned brother, A. O. OBASEKI ADEJUMO, JCA. I agree with his Lordship’s reasoning and conclusions. My learned brother dealt exhaustively with all the issues and covered all the grounds. This area of law is not recondite as the relevant laws are clear and concise: Section 45(1) of the Civil Aviation Act 2006 provides:
“The provisions contained in the convention for the unification of certain rules relating to International carriage by air signed at Montreal on 28th May 1999 set out in the Second Schedule 11 of this Act and as amended from time to time, shall from commencement of this Act have the force of law and apply to International carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons”
The provisions of the Montreal Convention are in the Second Schedule of the Civil Aviation Act 2006. Article 29 provides:
“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
22(3) In the carriage of Cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 special Drawing Rights per Kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
The learned trial judge in his judgment rightly found that the contract between the parties was one for carriage of cargo by air governed by the Montreal Convention. There was no basis therefore for his lordship to have gone outside the provisions as stated above to make an award beyond the prescribed limits. The appeal has merit. I also allow it. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
L. Fubara Anga with him, A. F. Ajayi and A. Tokon-Lawal (Miss)For Appellant
AND
Akhigbe GabrielFor Respondent
