KLM Royal Dutch Airlines v Hamman

• Jurisdiction: South Africa
• Judge: Flemming Djp and Masipa J
• Judgment Date: 05 February 2002
• Citation: 2002 (3) SA 818 (W)
• Docket Number: A3057/2001
• Hearing Date: 29 August 2001
• Counsel: P Lazarus for the appellant. J L Kaplan for the respondent.
• Court: Witwatersrand Local Division

Flemming DJP: C

[1] Plaintiff (the respondent in this appeal) describes himself as a professional hunter. He made it his business to take people on safari in search of dangerous game. Crucial to this was his rifle which had special qualities with a view to stopping an animal. It inter alia had two barrels which were so constructed that D the bullets converge at about 50 metres. Both triggers could be simultaneously activated.

It consists of three components: the 'action' which is the firing mechanism, the barrels and the stock. The action is hand-made. After it is created, the rest of the rifle is manufactured to fit around the action. The result is that if the action only is lost, it is not possible to fill the gap with a new 'action'. In that sense the E action is irreplaceable. It is expensive. The length was 12 - 15 cm, the height 3 cm and the width 4 cm. It weighed about 2 kg.

[2] Plaintiff decided to attend a conference in the United States of America and to take the rifle along for service by a reputable gunsmith. He bought a ticket from defendant for the route F Johannesburg-Amsterdam-Minneapolis-Reno. All luggage was checked through to Minneapolis. The rifle never arrived. The outer envelope did.

Prior to departing from Johannesburg plaintiff went to the customs counter so that he could return to this country with his rifle and to avoid difficulties on the American side. He then checked in his G luggage. The action, because of its value and sensitivity, was in plaintiff's hand luggage. The other parts were in the suitcases destined to travel in the aircraft's hold. Security staff detected the action and stopped the luggage. Plaintiff was taken to defendant's representative, Mr Patterson. Patterson dealt with the action as a H 'security item' in accordance with normal procedure. He wrapped the action in a padded envelope, folded it and sealed it with defendant's sealing tape. He placed this envelope in another envelope which was taped and tagged with the 'baggage tag'. The package was given to Mr Spaniola of defendant's baggage staff to load it in a special section in hold number 4. Spaniola was not called as a witness. [1] I

Patterson's conduct was inspired by the fact that the action was part of a weapon and should be dealt with as a 'security item'. In Court his J

Flemming DJP

attitude was that 'objectively' the action was a security item; it only 'subjectively' (to plaintiff) was a valuable item. A

Patterson testified that when the security staff brought plaintiff to him and after he had explained to plaintiff that defendant could not accept the action in hand luggage, plaintiff 'explained to me that it was valuable to him'. Plaintiff also requested him to make sure that the action gets to its destination. Patterson promised that he would do anything in (his) power to assure that it reached 'its next B point'. Later he testified that he said he would make sure that plaintiff would get the action 'at the other side'.

A dispute of fact arises from Patterson's evidence, according to which no amount was mentioned. He claims that almost every time something is removed from a passenger, the passenger says that the item C is valuable. Plaintiff gave the logical version that Patterson asked him what the item was whereupon plaintiff explained to him that it was a 'very expensive part of the rifle . . .'. Plaintiff told Patterson that the value would be in the region of US $10 000 if it could be replaced at all. In other parts of his evidence he testified D that he said that the value would be 'in excess of' US $10 000.

[3] During cross-examination, in response to an enquiry about plaintiff's concern when Patterson told him that he could not take the action with him, plaintiff testified: 'I was yes, and then I needed assurances from him that it would be handled correctly and he said it would. I told him repeatedly what this was worth not only in monetary E terms but to the rifle as a whole and he assured me that it would be handled as a security item. He did not at any time say to me that it would be placed in the aircraft hold. I would never have allowed that to be done. Never. I would have taken that action . . . to the South African Police desk and I would have signed it in until the return from F America.' Later he testified that Patterson said '. . . what it would be handled correctly, he was aware of the value. I told him what its intrinsic value was in terms of to the firearm that it could not be purchased again . . . and he assured me that it would be handled as a security item, it would be packaged securely and that I would get it G when I landed in Minneapolis'. And 'I told him what the value of it was. . . .'

[4] The common-law result

Subject to conventions, legislation and the terms of the carriage contract, defendant became obliged to replace the action with its H monetary value. It failed to re-deliver an item which it had taken into possession for carriage. Alongside that contractual basis, there is sufficient reason to find delictual liability on a vicarious basis.

[5] Defences

[5.1] Defendant threw the book at plaintiff but only two complete I defences raised in the plea and an alleged limit on liability remain relevant. The foundation of these defences is the Warsaw Convention ('the Convention') which became part of our law by virtue of s 3 of the Carriage by Air Act 70 of 1946. Defendant also relies on the terms of the passenger ticket issued to plaintiff. Some facts which are relevant to J

Flemming DJP

applying the Convention and the contractual terms are not mentioned in this judgment because they are common cause eg A that the action went as 'registered' or 'checked' luggage; that the carrier flew to a Convention country.

[5.2] Subsequent to the Warsaw Convention there were Protocols which were made part of our law (cf Government Notice R93 in the B Government Gazette of 10 May 1974), mainly the Hague Protocol and Montreal Protocol 4 of 1975. These are also relevant to the original text on issues of interpretation insofar as they were intended not to amend but to clarify what preceded it. There is not much hesitation in imbuing the original of a statute with what is evident from clarifying legislation. Ex parte Christodolides C 1959 (3) SA 838 (T) at 841A - B; Parity Insurance Co Ltd v Marescia and Others 1965 (3) SA 430 (A) at 434C; Bayer Corporation v British Airways plc (infra).

[5.3] A substituting Montreal Convention was signed on 28 May 1999. [2] It does not affect the present dispute. Plaintiff's experience played itself out between 17 and D 19 January 1999.

[6.1] The pattern of legal liability

The relevant effect of the Warsaw Convention as amended is:

1.

The airline is liable for damage to luggage unless a qualification applies. See art 18 read with art 23 which voids any 'provision' which tends to relieve the carrier from liability to a E greater extent than is spelled out by the Convention. There are exceptions, eg damage caused by pilot error and contracting out of liability for damage due to an inherent defect.

2.

There is no liability if the carrier proves that he as well as his agents have taken 'all necessary' measures to avoid the harm; F alternatively that it was impossible for him 'or' the agents to take such measures (art 20).

3.

The liability is limited to the equivalent of 17 Special Drawing Rights per kilogram [3] unless

(a)

a declaration of 'interest in delivery at destination' was made in accordance with art 22; or G

(b)

the damage resulted from intentional acts as defined in art 25.

Flemming DJP

[6.2] Application of the Convention A

Proposition 1 requires comment only to the extent that defendant's ticket conditions may be voided by art 23. The second proposition requires no attention because defendant made no attempt to discharge the onus. In fact, defendant accepted that its negligence caused liability to compensate plaintiff unless proposition 3 applies and locked horns on the 'extent of that B negligence'. On the qualifications mentioned in proposition 3 plaintiff bore the onus. What did he have to prove and what did he prove?

[7] The actual wording

[7.1] The following was made law in the annexure to the Carriage by Air Act as the South African version of the Convention (words in C brackets were replaced by the immediately preceding words by virtue of the Hague wording):

'22(2)(a) In the carriage of registered baggage (luggage) and of cargo (goods), the liability of the carrier is limited to a sum of 250 francs per kilogram (kilogramme), unless the passenger D or 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 he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.' E

Beek Civil Aviation Legislation vol 1 at 1029 reflects this version.

[7.2] www: austlii.edu.au/au/other/dfat/treaties gives access to the full text of the treaties. (The opening abbreviation is inspired by the name Australian Legal Information Institute.) F

[8] The interpretation

[8.1] Courts in other jurisdictions have accepted that the Convention as an international instrument ought to have the same effect in all countries who adhere to it. Examples are Corocraft Ltd and Another v Pan American Airways Inc [1969] 1 All ER 82 (CA); Siemens v Schenker [2001] NSWSC 658, URL address: G

www.austlii.edu.au/au/cases/nsw/supreme ct/2001/658.html and it can also be found by searching for the phrase special declaration of interest on www: austlii. edu.au. See also ag d.nsw.gov.au/sc/sc.nst/pages/index.

[8.2]...