STATED
CASE
HUNGWE
J: The
plaintiff was a passenger aboard Flight UM 14176 from Harare to
London on 9 September, 1997. He had luggage. The defendant airline
was to convey the luggage together with the plaintiff to London.
When
the plaintiff got to London, he failed to get his luggage. It was
lost.
Plaintiff
accepted payment of $4,694.28 from the defendant. He sued for
UK£3,068.00 and Z$368,550.00 for the lost luggage and loss of
earnings.
At
the pre-trial conference stage it was agreed that the following
question be placed before the Court as a stated case.
1.
Is the contract between the parties governed by the Carriage by Air
Act [Chapter 13:04]?
In
his heads of argument Mr Mutangamira
argued that in terms of section 7(2) of the Carriage by Air Act
[Chapter 13:04), the Court, has a discretion when adjudicating in
claims brought to enforce liability which is limited by Article 22 of
the Geneva Convention. The limitation imposed by Article 22 of the
Convention is a guide but not a strict limitation as such a
limitation is qualified by the use of the words "just and
equitable" in subsection (2). So he argued.
There
is no substance in this argument. It is clearly misplaced and
misdirected.
To
begin with the use of the words "just and equitable" in
section 7(2) are restricted to the procedural options open to a Court
where there is a possibility of a carrier facing a multiplicity of
suits, either in Zimbabwe or elsewhere.
Secondly,
the Act itself is clear and unambiguous in its limitation of
liability. Section 7(1) states:
"It
is hereby declared that the limitations on liability in Article 22 of
the Convention apply whatever the nature of the proceedings by which
liability maybe enforced and that in particular -
(a)
those limitations apply where proceedings are brought by a wrongdoer
to obtain a contribution from another wrongdoer; and
(b)
the limitation for each passenger in paragraph (1) of that Article
applies to the aggregate liability of the carrier in all proceedings
which may be brought against him in Zimbabwe together with any
proceedings brought against him outside Zimbabwe."
For
the defendant, Mr Girach
argued that the golden rule of interpretation, which is that a court
is bound to give effect to the express provisions of a statute, must
be applied unless that leads to his ambiguity. It would lead to an
absurdity if that same provision were to be read as implying that
where justice and equity required it, a Court could make an award
greater than the limitation allowed.
I
agree. A perusal of the Act is revealing.
The
preamble of the Act reads;
"An
Act to enable effect to be given to the Warsaw Convention of 1929, as
amended by the Hague Protocol of 1955 concerning international
carriage by air…".
By
section 3 of the Act the Convention was adopted as domestic law of
Zimbabwe. The purpose of the Convention, among other things, is to
limit the liability of air carriers. Article 22 expressly limits the
liability of a carrier by air. It is unequivocal.
The
plaintiff did not argue otherwise.
In
terms of Article 22 the only circusmtance where a carrier by air is
liable to a higher limit is where by special contract, that carrier
has agreed to be so bound.
The
plaintiff has not alleged the existence of any such special contract.
There would be little purpose served by this Act if it were possible
to claim an amount higher than the prescribed limit. This is an
international convention. Zimbabwe is a signatory to it. Zimbabwe is
obliged to apply the letter and spirit of the convention.
In
the circumstances the answer to the State Case is that the contract
between the parties is governed by the 1929 Warsaw Convention as
amended by the Hague Protocol of 1944 as adopted into domestic law by
the Carriage by Air Act [Chapter 13:04].
It
is ordered that -
Plaintiff
is to pay the costs of this application.
Mudambanuki
and Associates,
applicant's legal practitioners
Rainor
Robinson,
defendant's legal practitioners
