Carriage of goods by air has become an integral part of modern living and with air carriage occurring on a daily basis, liability for damage or loss of goods is a matter of legal interest. The exact ambit of this liability came under question in the recent court of appeal decision in Appeal No. CA/L/670/2016-South Africa Airways V. Barrister Monday Ubani & Anor delivered on the 26th of October 2018. This article summarizes the issues raised and decided by the appellate court.

FACTS

The 1st respondent and his wife boarded the Appellant’s flight, an international carriage of passengers and goods, from Johannesburg, South Africa to Lagos, Nigeria. Prior to boarding the aircraft, the official of the appellant, weighed, accepted and checked in four big bags of luggage of the Respondents at Johannesburg Airport. Upon arrival in Lagos, Nigeria, the Respondent could only retrieve 3 out of the 4 bags that were checked in by the Appellant at Johannesburg and no explanation could be offered for the fourth bag.

The Respondent immediately lodged a complaint with the officials of the Appellant, but the Appellant was unable to produce the said missing bag after several days. After attempts at amicable settlement failed, the Respondents, approached the Federal High Court claiming, amongst others: 1,131 Special Drawing Rights (SDRs) per each plaintiff, R4,888.00 (South African) as cost of the bags, N1,000,000.00 (One Million Naira) as general damages for the embarrassment, harassment, mental agony, and emotional stress suffered by the Plaintiffs as a result of the Defendant’s negligence, interest on the claimed sums at the rate of 21% per annum from 26th September, 2005 until judgment and thereafter at the rate of 6% per annum until the final liquidation of the debt.

After hearing the suit, the learned trial judge found in favor of the Respondent, and the Appellant Airline appealed to the Court of Appeal formulating three issues for the determination:

  1. Whether the Warsaw Convention 1929 as amended by the Hague Protocol of 1958, was exclusively applicable to the case, and if so bearing in mind the provisions of Article 22 (2) whether the Respondents are entitled to “1,131 special Drawing Rights (SDRs) per Respondent as valued at the time of judgment”
  2. Whether the Trial Judge erred in granting the claim of interest at the rate of 21% per annum from 26th September 2005 until the date of Judgment.
  3. Whether the Trial Judge rightly awarded the Respondent’s N650,000.00 as General Damages.

Appellant’s Arguments:

The Appellant argued that in applying the Warsaw Convention, where there are allegations  of actual loss of baggage in the course of international travel by air, the court must first be satisfied that actual loss has been proven, and once such loss is proven, award sums in accordance with the limitation as set out in Article 22 (2) of the Convention unless the passenger or consignor has specially, at the time of handing over the goods to the carrier, declared the value of same and paid a supplementary sum if required. The Appellant argued that it is only when a passenger can prove these that he can seek the highest compensation otherwise available under the law.

The Appellant noted that the Respondents admitted under cross examination that they did not make special declaration of value of items at the point of checking in, and they submitted that since the Respondents neither declared the content of the missing baggage nor paid a supplementary sum in respect of same, the liability of the Appellant could not be at large and the Respondents were not entitled to award of sums in excesses of what is prescribed by the convention. The Appellant relied on Cameroon Airlines v. Abdul Kareem (2003) II NWLR Part 830 CA I at Page 23-24 Paragraph B. to contend that, there was also no evidence declaration of value of goods nor payment of a supplementary sum, therefore the trial court was bound by the provisions of Article 22 (2) of the Convention to impose the limitation, and the court ought to have held that the Respondents failed to establish their claims for the sum of 1,131 Special Drawing Rights (SDRs) or indeed any sum whatsoever.

Furthermore, the Appellant argued that the of award general damages in the sum of N650, 000 amounted to double compensation and was not recognized under the Convention, and that there was no basis for the 21% interest granted by the lower court since same was not expressly agreed nor was there any provision by statute or custom which imposed it. The Appellant relied on Ekwunife v. Wayne W/A Ltd. (1989) 5 NWLR (Pt. 122) 422, to the effect that pre- judgment interest must be pleaded and proved by the claimant which the respondents did not do.

Respondents’ Argument:  

In response, the Respondent argued that the witness evidence was not controverted to the effect that one of the bags was lost due to the negligence of the Appellant. Hence the onus on the Respondents to prove its claim was discharged. The Respondent further argued that since the Respondent could not tell the weight of the bag lost, the learned trial judge was right when he held that the liability of the Appellant for the Respondents’ lost bag should be computed based on the maximum limit of 23 kg permissible under the Convention.

Respondents submitted that since the Respondents had suffered some embarrassment, harassment, mental agony and emotional stress on account of the loss of their luggage due to the Appellant’s negligence they were entitled to damages. They relied on Harka Air Service Ltd v. Keazor (2006) 1 NWLR (Pt. 960) 160 and Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (Pt. 830) 1 @ pp. 18-20 to submit that whereas the award for the 23 kg as the appellant’s liability was in special damages under the Convention; while the award of the sum of N650, 000.00, was for general damages and the two awards did not amount to double compensation. The Respondent also argued that interest was necessary as the Respondents had been denied the economic utility of the contents of the said bag.

JUDGEMENT OF THE COURT:

Enunciating on the principles guiding liability for carriage of goods by Air and in determining whether the Warsaw Convention was applicable in the instant case, the Court of Appeal held:

It is now settled that in general, the law governing international carriage by air is the Warsaw Convention. See IBIDAPO vs LUFTHANSA AIRLINE (1997) 4 NWLR (PT. 498 SC 124; CAMEROON AIRLINES VS. ABDUL KAREEM (2003) 11 NWLR (PT.830) C.A. 1; CAMEROON AIRLINES VS. OTITUIZU (2011) 4 NWLR (PT. 1238) 512. Therefore, for liability to be at large in respect of carriage of goods by air, it must be shown that the damage was caused by willful misconduct as provided for under Article 25 of the Convention. There is however a qualification that it is not sufficient for the act or omission that is to be relied on to have been done recklessly…It is obvious from this statement of the law that a negligent act such as in the present case of loss of the Plaintiffs’ bag cannot by that fact constitute willful misconduct. See CAMEROON AIRLINES VS ABDUL KAREEM (Supra, at pp. 22-23, Paras G-A)…This in effect means that it is the Warsaw Convention that is properly applicable to the Plaintiffs’ claim…

On the finding of the Court setting at the maximum limit permissible under the Convention, the Court of Appeal held:

I think that the justice of the case was served when His Lordship held that the appellant’s liability was to be computed based on 23kg as the maximum weight limit allowable for the lost bag of the respondents who were economy class passengers of the appellant on the flight from Johannesburg to Lagos. I agree with that reasoning, because I am satisfied that it is fair and square.

On the argument against the award of general damages of N650, 000,  the court held:

The law is no longer recondite, as it has been well settled to the effect that award of general damages is permissible in all matters which border on breach of contract on the principle of restitutuo in interregnum, that is, in so far as the damages are not remote, the Plaintiff shall be restored as far as the damages are not remote, the plaintiff shall be restored as far as money can do it, to the position in which he would have been if the breach had not occurred…In the instant case, it cannot be reasonably said that the Respondents, did not suffer any emotional trauma, anxiety and embarrassment when upon their return from a holiday trip where they had purchased some dresses and some other valuable items for their children, friends and themselves which they kept in a particular bag and could not find it on their return to their home country. The respondents in such circumstances, having established the appellant’s default or negligence were clearly entitled to be compensated by the award of general damages. I do not agree with the appellant’s contention that the award of the aforementioned general damages to the respondents in addition to the award of the first head of their claim was tantamount to double compensation. I do not agree too with the contention that general damages are not awarded in deserving situations in claims that border on the applicability of the Warsaw Convention. See. Cameroon Airlines v. Otituizu, Supra.

The Court of Appeal in agreeing with the Appellant however held, on the issue of interest claims that:

“With respect to the appellant’s contention relating to the award of pre-judgment interest, the law is well settled and crystallized in several decided authorities to the effect that the facts upon which such claims are anchored must be pleaded and hard evidence must also be led on them successfully by the claimant before he is entitled to such an award. In other words, pre-judgment interest is not granted as a matter of course. For it to be awarded, it must be shown that it was in the contemplation of the parties or it imposed by statute or under a mercantile custom and under the principle of equity such as a breach of any fiduciary relationship between the parties. Ekwunife v. Wayne W/A (1989)5 NWLR (Pt. 122) 422 @ 445; Berliet Nig. Ltd v. Kachalla (1999) 9 NWLR (Pt. 420) 478; Idakula v. Richards (2001) 1 NWLR (pt. 693) 111 122…The award of 21% pre- judgment interest on the total judgment sum in favour of the respondents, in the instant matter, has no basis in this case. It is accordingly, set aside.

In all, the Court of Appeal with the exception of the award of 21% pre-judgment interest dismissed the appeal.

CONCLUSION AND SUMMARY

The decision of the Court of Appeal in S.A. Airways v. Ubani therefore founds authority on the following:

  1. Where the requirements for liability at large stipulated in Article 22 of the Convention are not met in each case, the liability of the carrier for lost goods will be limited to 250 francs per kilogram as stipulated under the Convention.
  2. The limitation of liability of a carrier under the Convention I a limitation of claims for special damages and does not exempt or limit liability for general damages under common law of contract.
  3. Where the weight limit of the goods lost is unascertainable, the court is permitted to imply that the goods had the highest weight permissible under the Convention.

Oliver Omoredia writes For TheNigerialawyer

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