Laroche v Spirit of Adventure (UK) Ltd [2008] EWHC 788,[2008] All ER (D) 238 (Apr)
Queen’s Bench Division
Eady J
17 April 2008
Having regard to the legislative background there is no logical basis for excluding a hot air balloon from the classification of “aircraft” in the Carriage by Air Acts (Application of Provisions) Order 1967 (SI 1967/480) (the 1967 order).
Alan Masters (instructed by Graham Dawson & Co) for the claimant.
Robert Lawson (instructed by Bruce Lance & Co) for the defendant.
The defendant company ran a business arranging adventure experiences, including hot-air balloon flights offered to paying customers. The claimant was given a voucher for one of the flights. In August 2003, he and other customers gathered at the starting point. The arrangement was that a vehicle would follow the balloon and collect it from wherever it landed. The balloon was forced to land early and the claimant suffered an injury. Negotiations ensued as to the defendant’s liability pursuant to the Warsaw Convention and the 1967 order.
Schedule 1 of the latter, which contained “the Non-International Rules”, applied by reason of Art 3 to “all carriage by air” not being carriage to which the Warsaw Convention had application. The Non-International Rules replicated the Warsaw Convention. Preliminary issues were heard, including (i) whether it could properly be said that the balloon flight involved the “carriage of a passenger”, whether it was “for reward” by an “aircraft” within the meaning of the 1967 order; and (ii) whether, absent a claim brought within the two years provided for in Art 29 of the Rules, the right of action was extinguished. The defendant relied on the Air Navigation Order 2000 (SI 2000/1562), which by Art 129(4) and Sch 2 classified a balloon as a lighter than air non-power driven aircraft and which, by Arts 129(1) and 130 provided that an aircraft flew for the purposes of public transport if a valuable consideration was given or promised for the carriage of passengers in the aircraft.
mr justice Eady:
His lordship considered first the issue of whether or not the hot-air balloon should be categorised as an “aircraft”. Although there was no direct authority on the question, it could be addressed as a matter of principle.
In Disley v Levine [2002] 1 WLR 785, [2001] All ER (D) 129 (Jul) the Court of Appeal was considering a tandem paraglider in the context of the Non-International Rules and held that it was not an “aircraft”. A distinction was drawn between air transport and recreation. The passenger was being carried not for the purpose of transport but for the purpose of instructing her in the operation of a paraglider for purposes of recreation.
Although the claimant had sought to draw a parallel in the instant case, it was important to analyse the nature of the activity being carried on. While it was true that the claimant was being carried for purposes of leisure in the instant case, that did not in itself mean that he was not being carried as a passenger or that he was not being carried in an “aircraft”. The important distinction being drawn in the Disley case related to the use to which the particular piece of equipment was put.
The defendant pointed to the fact that paragliders were exempt from the regulatory controls imposed upon commercial aircraft which were used for public transport by the Air Navigation Order 2000. One did not require an air operator’s certificate or a certificate of airworthiness.
By contrast, a hot-air balloon was designed to be used for carrying passengers. Moreover, the Air Navigation Order 2000 classified a balloon as a lighter than air non-power driven aircraft (whereas gliders were classified as heavier than air non-power driven aircraft): see Art 129(4) and Sch 2.
There was no question of an exemption for balloons when used for public transport purposes from certain requirements, such as the need to be registered and to be flown in accordance with an air operator’s certificate granted to the operator. There also had to be a valid certificate of airworthiness.
Against that legislative background, there was no logical basis for excluding a hot-air balloon from the classification of “aircraft”.
His lordship turned to whether or not there had been “carriage of a passenger”. The claimant was undoubtedly being carried in the balloon at the material time and was not himself making any contribution to the process of flying (see Fellowes and another v Clyde Helicopters Ltd [1997] AC 534, [1997] 1 All ER 775).
No fixed destination
One argument raised on behalf of the claimant was that the flight in question could not fall within the Non-International Rules because there was no fixed destination or route. That was also true in the Fellowes case, however.
There was also no reasonable basis for concluding that the flight in question was not carried out “for reward”. The claimant was redeeming a voucher purchased by a friend.
In the result, the carriage by the defendant of the claimant fell within the meaning of the Non-International Rules.
His lordship turned to the two-year time bar in Art 29 of the rules. In the absence of a claim brought within the relevant period, the right of action was “extinguished”, which suggested that there was a substantive bar (see Aries Tanker Corporation v Total Transport Ltd [1977] 1 WLR 185, [1977] 1 All ER 398).
Article 29 made no provision for suspension, interruption or extension so far as the two-year period was concerned. One also looked in vain for any such power elsewhere in either in the rules or in the Warsaw Convention itself.
It was true that Art 29(2) stipulated that the method of calculating the period of limitation would be determined by the law of the court seised of the case, but that was very limited in effect. It would not be wide enough to embrace a discretion on the part of the domestic court to apply a different prescription period or to exercise a discretion in favour of suspension, interruption or extension.
As a matter of principle the Non-International Rules applied by operation of law and could not be ousted by reference to domestic law or rules of evidence.
The claim was therefore time-barred.
