This appeal has been filed in the Supreme Court and arises from a judgment of The High Court of Bombay.
No Acts & Articles mentioned in this case
Page 1 of 48
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4978 of 2022
ARISING OUT OF SLP (C) NO. 16767/2018
M/S BHAGWANDAS B . RAMCHANDANI ...APPELLANT(S)
VERSUS
BRITISH AIRWAYS …RESPONDENT(S)
JUDGMENT
PAMIDIGHANTAM SRI NARASIMHA, J .
1. Leave granted.
2.1 Carriage by Air Act, 1972, incorporates international air traffic
conventions of Warsaw, 1929, Hague Protocol, 1955, and Montréal Convention,
1999 in the First, Second, and the Third Schedules of the Act. Rule 30 of the
Second Schedule, which incorporates the Hague Protocol, provides that the right
to damages will be extinguished if an action is not brought within a period of two
years from the dates mentioned in the Rule. Sub-rule (2) of Rule 30 provides that
the method of calculating the period of limitation shall be determined by the law
of the Court seized of the matter. As Limitation Act, 1963 is the law applicable
to the Courts in India, it is contended on behalf of the consumers of the Airlines
Page 2 of 48
that the exclusion of periods of limitation provided in the Limitation Act shall
apply for computation of the period of two years mentioned in Rule 30 (1).
2.2 Two substantial questions of law have arisen for our consideration. The
first relates to the applicability of the Limitation Act when the right itself is
extinguished, as against a barring of remedy, as in the case of Section 3 of
Limitation Act. The second question is whether the provisions of the Carriage by
Air Act, 1972 expressly exclude the Limitation Act, 1963 as provided in
Section 29.
2.3 On the first question, we have resolved the apparent conflict between Sub-
rule (1) and Sub-rule (2) of Rule 30 by referring to the legislative history of the
conventions as provided in the Vienna Convention on the Law of Treaties, 1969.
The travaux preparatoires leading to the formation of the Convention
establishes that the Convention sought to exclude any interruption in the
period of two years specified in the Article. We have also followed the well-
recognized principle that while interpreting municipal laws giving effect to
International Conventions, Courts must endeavor to maintain uniformity in
the interpretation in order to sub-serve the very purpose of the Conventions.
Having examined the judgments of various jurisdictions, we are satisfied that
they are in consonance with the interpretation that we have adopted in
construing Sub-rule (2) of Rule 30. Sub-rule (2) in our opinion does not
derogate from the intent of Sub-rule (1) excluding the applicability of the
Page 3 of 48
Limitation Act but merely empowers the Court to determine the period of two
years.
2.4 On the second question, after examining the provisions of the Carriage
by Air Act, 1972, we have held that Rule 30 expressly excludes the Limitation
Act as provided in Section 29.
Facts and Proceedings:
3. The Appellant is a sole proprietary concern engaged in the business of
imports and exports. The Appellant sent a cargo containing fruits and
vegetables from Mumbai to Canada via London by employing services of
British Airways
1
on 04.01.2010. However, on 06.01.2010 due to bad weather
conditions in London the flight could not depart to Canada, as a result the
fruits and vegetables were damaged and were consequently destroyed. The
Appellant lodged a claim for ₹1,70,221.56/- with the Respondent. On
30.06.2010, the Appellant once again sent a similar cargo containing fruits
and vegetables from Mumbai to Canada. Yet again, the cargo could not be
sent due to packaging and other issues and, as a consequence, the cargo had
to be destroyed. The Appellant raised a claim dated 20.07.2010 for
₹4,27,922/-. Acknowledging the receipt of the notice, the Respondent sent a
mail on 02.11.2010 offering to settle the matter at 50% of the claim amount.
1
hereinafter referred to as the ‘Respondent’.
Page 4 of 48
4. It is in the above-referred background that the Appellant instituted a
suit being OS No. 5164/2012 on 15.09.2012 before the City Civil Court,
Mumbai for recovery of the amount of ₹9,17,642.56/-, with interest at the rate
of 21% per annum
2
. The Respondent filed written statements stating inter alia
that the suit is barred by limitation.
Before the Trial Court:
5. The Trial Court framed a preliminary issue on the ground of limitation
and by its judgment dated 05.02.2014 held that the suit is not barred by
limitation as the period prescribed in Rule 30 of the Second Schedule to the
Carriage by Air Act, 1972
3
could be calculated from 28.10.2010, that is, the
date when the Respondent had acknowledged a proposed settlement of the
claim at 50% of the demand. For this purpose, the Trial Court relied on
Section 18 of the Limitation Act by taking it for granted that the said Act is
applicable to proceedings under the Air Act.
6. Aggrieved by the decision of the Trial Court on the preliminary issue,
Appellant filed a Writ Petition No. 6647/2014 before the High Court of
Bombay. By the judgment impugned herein, the High Court allowed the Writ
Petition holding that the suit is barred by limitation. The reasoning adopted
by the High Court is that the Air Act, 1972 being a later and a special statute,
2
For completion of the narration, it may be stated that the appellant had initially approached the District Consumer
Forum which took the view that the transaction is commercial in nature and therefore, it did not have the
jurisdiction. The appeal and revision against that order were also dismissed, though on the ground of delay.
3
hereinafter referred to as ‘Air Act, 1972’.
Page 5 of 48
will have an overriding effect over the earlier and the general statute, being
the Limitation Act, 1963.
Before the High Court:
7.1 The High Court relied on the decisions of the High Court of Madras in
M.R.F. Ltd. v. M/s Singapore Airlines Ltd.
4
, M/s Air India Bombay Airport
and Another v. M/s Asia Tanning Co. and Anr.
5
, The Shipping Corporation
of India Ltd., Bombay and Anr. v. Union of India
6
, The East and West
Steamship Company, Georgetown, Madras v. S.K. Ramalingam Chettiar
7
, Air
India Ltd. v. Tej Shoe Exporters P. Ltd. and Anr.
8
and Gulf Air Company v.
Nahar Spinning Mills Ltd. and Others
9
which took the view that Carriage by
Air Act, 1972 excludes the applicability of Limitation Act. The High Court
observed that: -
“30. Thus, consistent view taken by the Apex Court and
also by various High Courts is that the Carriage by Air
Act 1972, being a special statute, enacted to give effect
to the international convention, the provisions thereof
will have an overriding effect. In view thereof, section
18 of the Limitation Act, which is a general enactment,
cannot have any application in the present case to
extend the period of limitation, which is prescribed in
Rule 30 of Schedule II of the Act.”
4
2014 SCC Online Mad 247.
5
2002 SCC Online Mad 802.
6
2004 SCC Online Mad 489.
7
AIR 1960 SC 1058.
8
2013 SCC Online Del 3749.
9
1999 SCC Online P&H 915.
Page 6 of 48
7.2 As a consequence of such a decision, the High Court set aside the
decision of the Trial Court on the preliminary issue and held that the suit is
barred by limitation and dismissed the same.
Submissions:
8.1 Shri Vinay Navare, Senior Advocate, appearing for the Appellant
submitted that Section 29(2) of the Limitation Act provided that unless the
Limitation Act is expressly excluded, its provision applies to any law
prescribing a distinct period of limitation. He submitted that Rule 30 of the
Second Schedule of the Air Act, 1972 has not expressly excluded the
applicability of the Limitation Act. He further submitted that Rule 30 (2)
explicitly enables “method of calculating the period of limitation” based on
the law of the Court seized of the case. On this basis, he urged that the
provisions of the statutes are complementary to each other and must be read
harmoniously. He fairly brought to our notice the judgment of the Court of
Appeal in the United Kingdom in Laroche v. Spirit of Adventure (UK) Ltd.
10
and the judgment of the Second Circuit of the United States Court of Appeals
in Fishman v. Delta Airlines
11
. In these cases, the Courts have taken the view
that the municipal laws governing the period of limitation are not to be applied
for claims made under the statutes based on international conventions. Shri
Navare distinguished these judgments on the ground that the statutory
10
(2009) EWCA Civ 12.
11
938 F. Supp. 228 (1996)
Page 7 of 48
position based on Section 29(2) of the Limitation Act read with correct
interpretation of Rule 30 of Second Schedule of the Air Act,1972 would stand
on a different footing, and therefore these judgments are distinguishable.
8.2 Ms. Ritu Singh Mann, Advocate for the Respondent-Airlines, primarily
contended that the exclusion under Section 29(2) can be implied from the
provisions of the Air Act,1972. The Learned Counsel relied on the judgment
of this Court in Hukumdev Narain Yadav v. Lalit Narain Mishra
12
. In the
written submissions, for the first time, the Respondent sought to argue that it
is Rule 35 of the Third Schedule and not Rule 30 of the Second Schedule of
the Air Act, 1972 which will be applicable to the case at hand
13
. Our attention
was also drawn to the judgments of the Courts in United Kingdom (Sidhu v.
British Airways
14
, Philips v. Air New Zealand
15
), the United States of America
(Fishman v. Delta Airlines
16
, Kahn v. Trans World Airlines
17
) and Australia
(Bhatia v. Malaysian Airline System Berhad
18
) to buttress the submissions.
Issues:
9. In view of the rival submissions, the following issues arise for
consideration:
12
(1974) 3 SCR 31.
13
The submission of the Respondent, taken for the first time in the written submission that it is Section 4A and
the Third Schedule of the Act, which is applicable need not detain us as there is virtually no difference between
Rule 35 of the Third Schedule and Rule 30 of the Second Schedule. We will therefore proceed based on Second
Schedule only.
14
[1997] 1 All ER 193
15
(2002) EWHC 800 (Commercial Court).
16
Supra no. 11.
17
82 A.D. 2d 696: (1981) 443 NYS 2d 79.
18
(2018) FCA 1471.
Page 8 of 48
1. Does Limitation Act, 1963 apply to the period specified in Rule 30
of the Second Schedule of the Carriage by Air Act, 1972?
2. Whether the Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the Limitation Act,
1963?
Issue No.1:
Does Limitation Act, 1963 apply to the period specified in Rule 30 of the
Second Schedule of the Carriage by Air Act, 1972?
10. It is to be noticed that matters concerning the international carriage of
persons, baggage, or cargo performed by aircraft for reward are the subject
matter of International Conventions. These are incorporated into our laws
through the Schedules to the Air Act, 1972. Section 3
19
of the Air Act, 1972
incorporates the Warsaw Convention, 1929
20
into the First Schedule and
specifically provides that it shall have the status of law in India. Section 4
21
incorporates the Hague Protocol dated 28.09.1955 and provisions it in the
Second Schedule and gives it the status of law in India. Similarly, Section
4A
22
brought into force in 2009 for giving effect to the Montréal Convention,
19
Section 3: Application of Convention to India
(1) The rules contained in the First Schedule, being the provisions of the Convention relating to the rights and
liabilities of carriers, passengers, consignors, consignees, and other persons, shall, subject to the provisions of
this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective
of the nationality of the aircraft performing the carriage.
20
Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw
on 12 October 1929.
21
Section 4: Application of amended Convention to India
(1) The rules contained in the Second Schedule, being the provisions of the amended Convention relating
to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall,
subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to
which those rules apply, irrespective of the nationality of the aircraft performing the carriage.”
22
Section 4A: Application of Montreal Convention to India
(1) The rules contained in the Third Schedule, being the provisions of the Montreal Convention relating to the
rights and liabilities of carriers, passengers, consignors, consignees, and other persons, shall, subject to the
Page 9 of 48
1999
23
incorporates it in the Third Schedule to the Act and gives it the status
of law in India.
11. Chapter III of the Second Schedule relates to, ‘Liability of the Carrier’,
which recognizes the principle of International Law of lex fori, as per which
suits and proceedings in the judicial fora of the member nations are to be
governed by the law of the Court in which the proceeding is instituted
24
. This
principle is recognized by Rule 29(2) of the Second Schedule itself;
“Rule 29. (1) An action for damages must be brought,
at the option of the plaintiff, in the territory of one of
the High Contracting Parties, either before the Court
having jurisdiction where the carrier is ordinarily
resident, or has his principal place of business, or has
an establishment by which the contract has been made
or before the Court have jurisdiction at the place of
destination.
(2) Question of procedure shall be governed by the
law of the Court seized of the case.”
12. The procedural law governing the institution and adjudication of civil
suits in India includes the Civil Procedure Code,1908 as well as the Limitation
Act, 1963. The Limitation Act is a branch of adjectival law, and applies to all
proceedings which it governs from the date of its enactment. There is however
a well-established principle, which states that when the right itself is
extinguished, the provisions relating to limitation have no application. A
provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply,
irrespective of the nationality of the aircraft performing the carriage
23
Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Montreal
on 28 May, 1999.
24
Rukmaboye v. Lulloobhoy Motichand (1935) 5 HIA 234.
Page 10 of 48
direct example where the right itself is extinguished, can be evidenced in
Section 11
25
as well as Section 27
26
of the Limitation Act, 1963. Section 11 deals
with suits filed in India with respect to contracts entered in foreign countries.
Following the Principle of lex fori, the Section provides that rules of limitation
provided in a foreign jurisdiction are not applicable. However, the exception to
this Rule is provided in Section 11 (2)(a), when the Contract i.e., the right itself
expires. Similarly, Section 27 also recognizes the principle of extinguishment of
Right to Property being an exception to the applicability of the Limitation Act,
1963.
13.1 The distinction between barring a remedy as exception is well established,
as can be seen in the following precedents. The extinguishment of the right
and its effect on limitation is well recognized by courts of law. We may refer
to some of the important precedents.
13.2 A similar issue as in the present case, arose for consideration in The
East and West Steamship Company v. S.K. Ramalingam Chettiar
27
, where this
Court had to consider 3
rd
Clause of Para 6 of Article III in Schedule to the
25
Section 11. Suits on contracts entered into outside the territories to which the Act extends
(1) Suits instituted in the territories to which this Act extends on contracts entered into in the State of Jammu and
Kashmir or in a foreign country shall be subject to the rules of limitation contained in this Act.
(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall be a defence to
a suit instituted in the said territories on a contract entered into in that State or in a foreign country unless-
(a) the rule has extinguished the contract; and
(b) the parties were domiciled in that State or in the foreign country during the period prescribed by such
rule.
26
Section 27. Extinguishment of right to property
At the determination of the period hereby limited to any person for instituting a suit for possession of any property,
his right to such property shall be extinguished.
27
Supra no. 7.
Page 11 of 48
Indian Carriage of Goods by Sea Act, 1925
28
wherein, while interpreting the
expression discharge from the liability, this Court held as under: -
“….The question we have to decide is whether in saying
that the ship or the carrier will be “discharged from
liability”, only the remedy of the shipper or the consignee
was being barred or the right was also being terminated.
It is useful to remember in this connection the
international character of these rules, as has been already
emphasized above. Rules of limitation are likely to vary
from country to country. Provisions for extension of
periods prescribed for limitation would similarly vary. We
should be slow therefore to put on the word “discharged
from liability” an interpretation which would produce
results varying in different countries and thus keeping the
position uncertain for both the shipper and the shipowner.
Quite apart from this consideration, however, we think
that the ordinary grammatical sense of "discharged from
liability" does not connote "free from the remedy as
regards liability" but are more apt to mean a total
extinction of the liability following upon an extinction of
the right. We find it difficult to draw any reasonable
distinction between the words "absolved from liability"
and "discharged from liability" and think that these words
"discharged from liability" were intended to mean and do
mean that the liability has totally disappeared and not only
that the remedy as regards the liability has disappeared.
We cannot agree with the learned Judge of the Madras
High Court that these words merely mean that "that even
though the right may inhere in the person who is entitled
to the benefits, still the liability in the opposite party is
discharged by the impossibility of enforcement. "The
distinction between the extinction of a right and the
extinction of a remedy for the enforcement of that right,
though fine, is of great importance. The Legislature could
not but have been conscious of this distinction when using
the words “discharged from all liability” in an article
purporting to prescribe rights and immunities of the
shipowners. The words are apt to express an intention of
total extinction of the liability and should, specially in
28
“In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage
unless suit is brought within one year after the delivery of the goods or the date when the goods should
have been delivered.”
Page 12 of 48
view of the international character of the legislation, be
construed in that sense. It is hardly necessary to add that
once the liability is extinguished under this clause, there
is no scope of any acknowledgment of liability thereafter.”
13.3 In RM. AR. AR. RM. AR. Ramanathan Chkttiar and others v. K.M.CL.M.
Somasundaram Chettiar and Ors.
29
, it was held as follows: -
“It is a well-accepted rule of International Law that all
matters of procedure will be governed by the law of the
country in which the Court where any legal proceeding is
initiated is situate. Statutes of limitation in so far as they
prescribe periods within which claim should be enforced,
whereby the remedy alone is barred, are regarded as
merely procedural.
But there may be provisions in such statutes which
extinguish the rights of the parties. S. 28 of the Indian
Limitation Act is an instance where on the remedy being
barred the right to property also stands extinguished. In
such a case, that is, where there is no right alive by reason
of its extinguishment by a statute there could obviously be
nothing to be enforced in that country or in any foreign
country. Provisions of that kind cannot be regarded as
merely procedural as they create or destroy substantive
rights of parties. This principle has been recognised in a
statutory-form in S. 11 (2) of the Indian Limitation Act.”
13.4 In Punjab National Bank and others v. Surendra Prasad Sinha
30
, this
Court held:
“5. …The rules of limitation are not meant to destroy
the rights of the parties. Section 3 of the Limitation Act
36 of 1963, for short “the Act” only bars the remedy,
but does not destroy the right which the remedy relates
to. The right to the debt continues to exist
notwithstanding the remedy is barred by the limitation.
Only exception in which the remedy also becomes
barred by limitation is that the right itself is destroyed.
29
(1964) 77 LW 399.
30
1993 Supp (1) SCC 499.
Page 13 of 48
For example, under Section 27 of the Act a suit for
possession of any property becoming barred by
limitation, the right to property itself is destroyed.
Except in such cases which are specially provided
under the right to which remedy relates in other case
the right subsists. Though, the right to enforce the debt
by judicial process is barred under Section 3 read with
the relevant article in the schedule, the right to debt
remains. The time barred debt does not cease to exist
by reason of Section 3. That right can be exercised in
any other manner than by means of a suit. The debt is
not extinguished, but the remedy to enforce the liability
is destroyed. What Section3 refers is only to the remedy
but not to the right of the creditors. Such debt continues
to subsist so long as it is not paid….”
13.5 The principles laid down in the above referred precedents are
consistently followed in decisions of this Court in Khadi Gram Udyog Trust
v. Ram Chandraji Virajman Mandir
31
, State of Kerela and Ors. v. V.R.
Kalliyanikutty and Anr.
32
and also in Prem Singh and Ors. v. Birbal and
Ors.
33
.
31
(1978) 1 SCC44.
“4. ……There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though
not recoverable, the relief being barred by limitation. In Halsbury’s Laws of England (Third Edn.) Vol. 24 at p. 205,
Article 369, it is stated “except in the cases previously mentioned, the Limitation Act, 1939 only takes away the
remedies by action or by set-off; it leaves the right otherwise untouched and if a creditor whose debt is statute-
barred has any means of enforcing his claim other than by action or set-off, the Act does not prevent him from
recovering by those means”. The Court of appeal in Curwen v. Milburn [(1889) 42 Ch D 424] Cotton, LJ said:
“Statute-barred debts are dues, though payment of them cannot be enforced by action.” The same view was expressed
by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay [AIR 1958 SC 328: 1958
SCR1122 : (1958) 1 Lab LJ 778] where it held that the statute limitation only bars the remedy but does not extinguish
the debt, except in cases provided for by Section 28 of the Limitation Act, which does not apply to a debt.”
32
(1999) 3 SCC 657
“15. It has been submitted before us that the statute of limitation merely bars the remedy without touching the right.
Therefore, the right to recover the loan would remain even though the remedy by way of a suit would be time-barred.
Reliance was placed on Khadi Gram Udyog Trust v. Ram Chandraji Virajman Mandir, (1978) 1 SCC 44 in this
connection. The Court there observed that though a debt may be time-barred, it would still be a debt due. The right
remains untouched and if a creditor has any means of enforcing his right other than by action or set-off, he is not
prevented from doing so. In Punjab National Bank v. Surendra Prasad Sinha [1993 Supp (1) SCC 499] this Court
held that the rules of limitation are not meant to destroy the rights of parties. Section 3 of the Limitation Act only
bars the remedy but does not destroy the right which the remedy relates to. Excepting cases which are specifically
provided for, as for example, under Section 27 of the Limitation Act, the right to which the remedy relates subsists.
Though the right to enforce the debt by judicial process is barred, that right can be exercised in any manner other
than by means of a suit. For example, a creditor’s right to make adjustment against time-barred debts exists.”
33
(2006) 5 SCC 353.
Page 14 of 48
14. In view of the well-established position of law relating to Lex Fori in
International Law, with the equally well-established exception arising out of the
extinguishment of the right or the liability itself, we will now examine the
position in India as per Rule 30 in the Second Schedule of the Air Act, 1972
relating to liability of the carrier. Rule 30 is of the Air Act, 1972 is extracted as
under: -
“30. (1) The right to damages shall be extinguished if
an action is not brought within two years, reckoned
from the date of arrival at the destination, or from the
date on which the aircraft ought to have arrived, or
from the date on which the carriage stopped.
(2) The method of calculating the period of limitation
shall be determined by the law of the Court seized of the
case.”
Analysis of Sub-Rule (1) of Rule 30:
15.1 While Rule 29 speaks about judicial remedy for initiating an action for
damages, Rule 30 uses the expression right to damages. It is in the context of
right as against a remedy that the purpose, object and meaning of Rule 30 is to be
understood. Further, Rule 30 also uses the expression “extinguishment” as
against “bar”, which is generally used in the context of a remedy. Therefore, the
extinguishment is of right, that is, the right to damages is the subject matter of
Sub-Rule (1) of Rule 30. The expressions, ‘right’ and ‘extinguished’ employed
by the Convention as adopted and incorporated by the Parliament in Rule 30 of
“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception
to the said rule is to be found in Section27 of the Limitation Act, 1963 which provides that at the determination of
the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to
such property shall be extinguished.”
Page 15 of 48
the Second Schedule clearly establishes the intention of the law-giver that the
right to damages would not subsist after the expiry of the period mentioned
therein.
15.2 Once the right to damages is extinguished upon the expiry of two years
reckoned from the three alternative dates mentioned in the Rule itself, nothing
would remain for enforcement. Section 3 of the Limitation Act only bars the
remedy, but when the right itself is extinguished, provisions of the Limitation Act
have no application. For this reason, in The East and West Steamship Co.
34
, this
Court held that once the right of liability is extinguished under the clause, there
is no scope of acknowledging the liability thereafter.
15.3 This is the position of law is obtained from the plain language of Sub-Rule
(1) of Rule 30. The position is however very different when we proceed further
to consider Sub-Rule (2) of Rule 30.
Sub-Rule (2) of Rule 30:
16.1 Sub-Rule (2) is extracted as under: -
“(2) The method of calculating the period of limitation
shall be determined by the law of the Court seized of
the case.”
16.2 In its plain and simple language, Sub-Rule (2) seems to adopt the
applicability of the Limitation Act, 1963 as Courts in India exercise
jurisdiction. ‘The method of calculating the period specified in Sub-rule (2)
34
Supra no. 7.
Page 16 of 48
naturally relates to the period’ specified in Sub-rule (1). Sub-Rule (1)
identifies and fixes two incidents. The period of limitation and the date of
commencement of the said period (the three specified dates). Therefore, when
the period of limitation, as well as the date of commencement of the said
period, are already given, the method of calculation of the period of limitation
contemplated under Sub-Rule (2) must relate to some other factor. However,
without specifying the variable to which the method of calculating the period,
is to apply, Sub-rule (2) merely provides that it “shall be determined by the
law applicable to the Court seized of the case.” This has caused uncertainty
about the intent of the lawmakers, be it the Convention or Rule 30 of the
Second Schedule of the Act.
16.3 Further, the expression in Rule 30(2) calculating the period of
limitation is synonymous to the expression computation of period of
limitation provided in Part-III of the Limitation Act, 1963. Part-III which
relates to the exclusion of certain time periods is to sub-serve a just cause
based on public policy which recognizes human vulnerabilities. Broadly,
these periods relate to (i) the date from which the period is to be reckoned
(Section 12); (ii) the time taken for seeking to contest as a pauper, (Section
13); (iii) the bona fide period involved in the perusal of a remedying the wrong
Court (Section 14); (iv) fraud (Section 17); (v) acknowledgment of debt
(Section 18); (vi) admitted payments on account of debt (Section 19); (vii)
Page 17 of 48
continuous breach etc. These are the periods that can be excluded while
computing the period of limitation under the Limitation Act, 1963.
17.1 It is in the above-referred context that Shri Navare, learned counsel
appearing on behalf of the Appellant has emphasized the affirmation of the
Limitation Act to proceedings under the Air Act, 1972 as per the plain
language of Rule 30(2) and submitted that the expression, ‘method of
calculating limitation period’ in Rule 30(2) is akin to the expression ‘for the
purpose of determining any period of limitation’ provided in Section 29(2) of
the Limitation Act. He contends that the Sub-Rule (2) of Rule 30 specifically
incorporates Limitation Act into the legal regime of the Air Act, 1972.
17.2 On the other hand, Ms. Ritu Singh Mann, relied on Section 29(2) of the
Limitation Act to submit that the provisions of the Limitation Act are
expressly excluded by the special law of the Air Act, 1972. The written
submissions emphasized the purpose and object of the International
Conventions, which provided for ‘collective State action for further
harmonization and codification of certain rules governing international
carriage by Air’. It is then submitted that if courts of every signatory state
were to interpret the provisions of the Convention in their own way, then the
very purpose of achieving uniformity in application of the Conventions would
be lost. For the first time in the written submissions, the Respondent has taken
a plea that it is Rule 35 of the Third Schedule and not Rule 30 which will be
applicable. However, on consideration we do not find any notable difference
Page 18 of 48
between the two and hence, we would proceed to refer Rule 30 of the Second
Schedule in our further analysis.
18. The rival submissions surface due to an apparent conflict between Sub-
Rule (1) and Sub-Rule (2) of Rule 30 of the Second Schedule. While Sub-
Rule (1) extinguishes the right itself upon the expiry of the period of two
years, after which nothing would remain for enforcement, Sub-Rule (2) seems
to suggest that the Court seized of the case can apply the law of limitation
applicable to its proceedings and entertain the suit of the proceedings. We
will now analyze and interpret Rule 30 of the Second Schedule.
19.1 However, before we proceed to interpret Rule 30, it is necessary to
clear certain doubts about the applicability of the correct Schedule. While the
suit was instituted on the assumption that it is Rule 30 of the Second Schedule
adopting the Warsaw Convention, 1929 as amended by the Hague Protocol,
1955 would be applicable to the proceedings, the Trial as well as the High
Court and even the parties assumed that this is the correct Rule that would
apply to the facts of the case. It is for the first time in the written submission
that the Respondent stated that it is Rule 35 of the Third Schedule of the
Montréal Convention, 1999 that will apply to the facts of the case. The change
in the stand is apparently due to the deletion of two words “of limitation”
occurring in Sub-Rule (2) of the Second Schedule from the same provision
introduced under Rule 35 of the Third Schedule. Based on this minor change
the Appellant advanced an argument in the written submission that the
Page 19 of 48
conscious deletion of the expression “of limitation” clarifies the position that
Sub-Rule (2) only relates to a period of two years and has got nothing to do
with “a period of limitation” and therefore, the Limitation Act has no
application.
19.2 A comparative statement of the Third Schedule relatable to the Warsaw
Convention, 1929, Warsaw Convention as amended by Hague Protocol, 1955,
and the Montréal Convention of 1999 is reproduced herein for ready
reference: -
19.3 It would be apparent from the above that even after the deletion of the
expression “of limitation” in the Montréal Convention of 1999, the difficulty
Rule 29 Schedule I
(Article 29 of the Warsaw
Convention, 1929)
The right of damages shall
be extinguished if an action
is not brought within two
years, reckoned from the
date of arrival at the
destination, or from the
date on which the aircraft
ought to have arrived, or
from the date on which the
carriage stopped.
Rule 30 Schedule II
(Article 29 of the Warsaw
Convention as amended by
Hague Protocol, 1955)
(1) The right to damages
shall be extinguished if an
action is not brought within
two years, reckoned from
the date of arrival at the
destination, or from the
date on which the aircraft
ought to have arrived, or
from the date on which the
carriage stopped.
(2) The method of
calculating the period of
limitation shall be
determined by the law of
the Court seized of the
case.
Rule 35 Schedule III
(Article 35 of the Montreal
Convention, 1999)
(1) The right to damages
shall be extinguished if an
action is not brought within
a period of two years,
reckoned from the date of
arrival at the destination,
or from the date on which
the aircraft ought to have
arrived, or from the date on
which the carriage
stopped.
(2) The method of
calculating the period shall
be determined by the law of
the Court seized of the
case.
Page 20 of 48
persists in as much as Sub-Rule (2) talks about the method of “calculating the
period” and as such a period must necessarily relate to the period of two years
as specified in Sub-Rule (1) of Rule 30. Calculation of the period for an action
for damages would necessarily involve law of Limitation as that is an
adjective statute governing suits and other proceedings instituted in India.
Even assuming that the deletion of the expression brings more clarity to the
scope and ambit of the Rule, that will be confined to Rule 35(2) of the Third
Schedule and the difficulty would continue to prevail with respect to the
period during which Rule 30 of the Second Schedule operates. It is, therefore,
compelling and the primary duty of the Court to analyze, interpret and declare
the true and correct meaning of the said provision.
Interpretation
20. Our task is to decipher and declare the correct meaning and purport of
Rule 30 of the Second Schedule of the Act. Schedule Two of the Act merely
incorporates the Warsaw Convention, as amended by the Hague Protocol,
1955. It is well known that incorporation of a Convention or a treaty into
municipal laws is normally carried out in three ways and the status that it
enjoys depends on the nature of incorporation. Referring to the Use of
International treaties in Part XIV under Section 221, Francis Bennion
35
observed as under:
35
See, Bennion on Statutory Interpretation, 6
th
Edition, 2013. [Part XIV: The Informed Interpretation Rule
(Legislative History), pg. 632.]
Page 21 of 48
“(1) An international treaty may have three different
kinds of status, considered as a source of law-
(a) an Act may embody, whether or not in the
same words, provisions having the effect of the
treaty (in this Code referred to as direct
enactment of the treaty);
(b) an Act may say that the treaty is itself to
have effect as law, leaving the treaty’s provisions
to apply with or without modification (in this
Code referred to as indirect enactment of the
treaty);
(c) the treaty may be left simply as an
international obligation, being referred to in the
construction of a relevant enactment only so far
as called for by the presumption that Parliament
intends to comply with public international law.
(2) Whichever status a treaty has, its provisions may
be referred to as an aid in the interpretation of a
relevant enactment. So too may its preparatory
work (travaux preparatoires), the decision on it of
foreign courts (la jurisprudence) and the views on
it of foreign jurists (la doctrine).”
21. Vienna Convention on Law of Treaties, 1969 can be referred to as a
“treaty on treaties”. It establishes comprehensive rules, procedures, and
guidelines for how treaties are defined, drafted, amended, interpreted, and
generally operated. Section 3 of Vienna Convention relates to interpretation
of treaties, of which Articles 31 and 32 are relevant for our purposes and are
extracted herein below for ready reference.
“SECTION 3. INTERPRETATION OF TREATIES
Article 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and
purpose.
Page 22 of 48
2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.”
22. Apart from Article 31, it is also important for us to note Article 32
which relates to "Supplementary means of Interpretation".
“Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of
article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.”
23. When statutes are enacted to give effect to a treaty or convention, Articles
31 and 32 of the Vienna Convention becomes relevant for interpretation of such
Page 23 of 48
statutes
36
. The court must be untrammeled by notions of its national legal culture,
for the true, autonomous and international meaning of the treaty. And, there can
only be one true meaning.
37
One event of adaptation of this method occurred in
the case of Fothergill v. Monarch Airlines
38
, in construing the Carriage by Air
Act, 1961
39
in the United Kingdom which was enacted to give effect to the
Warsaw Convention. The House of Lords held that in dealing with such an Act,
a purposive construction should be applied and reference could be made to the
opinion of international jurists as also to travaux preparatoires of the convention
in a limited sense.
40
24. Following Article 32 authorizing recourse to supplementary means of
interpretation, including preparatory works of a treaty, we will now proceed
to examine the legislative history of Article 29 of the Warsaw Convention,
1929 which eventually was modified in 1955 in the Hauge Protocol and
thereafter by the Montréal Convention in 1999. The original draft of this
clause as of 1929 occurred as Article 28 was as under:
“28. The right of damages shall be extinguished if an
action is not brought within two years, reckoned from
the date of arrival at the destination, or from the date
on which the aircraft ought to have arrived, or from the
date on which the carriage stopped.
36
R v. Secretary of State for the Home Department exparte Adan, (1999) 4 All ER 774. p. 785 (CA);
37
R. (on the application of Mullen) v. Secretary of State for the Home Department (2004) 1 All ER 65, p. 84)
See further, Justice G.P. Singh, Principles of Statutory Interpretation. 14
th
Edition, pg 693.
38
(1980) 2 All ER 696.
39
The Act sets out the convention in a schedule in two parts. Part I sets out the English text and Part II, the French
text. In case of inconsistency, the Act says that the French text is to prevail.
40
(1980) 2 All ER 696: (1981) AC 251.
Page 24 of 48
(2)"the manner of calculating the period of limitation,
as well as the causes for suspension and interruption of
the period of limitation, shall be determined by the law
of the forum court."
25.1 The above draft fell for consideration before it was adopted in the
convention as Article 29. The member States deliberated on the proposed
Articles of the Carriage by Air Convention between 4
th
to 12
th
October, 1929
in Warsaw. During the process, the members deliberated on Article 28 on
07.10.1929. At that time, Republic of Italy raised the following objection
with respect to the draft Article:
“The period of time, in order that there be interruption
of the period of limitation, varies with the country, and
it is very difficult for the shipper, the consignor to know
when the interruption or the suspension begins. Despite
the period of two years fixed for the period of limitation,
he must always wait until this period of limitation runs
and this period of two years which is necessary to give
some kind of tranquility is modified.
Moreover, the system which we have proposed becomes
very simple; if two years after the accident no action
has been brought, all actions are extinguished. As a
consequence, the second paragraph would disappear,
and it would be necessary to modify the first paragraph
in adding some words to better render the formula. We
get across the meaning, but, from the French point of
view, perhaps the wording needs to be reexamined."
41
It was further elaborated in their memo that:
“If one considers that the period of limitation is long
enough and that, particularly taking into account the
causes of suspension, it may, according to the law of
several countries, be prolonged indefinitely, it’s not a
good idea to refer the determination of the
41
Robert C.; Legrez Horner, Didier, Translators. Second International Conference on Private Aeronautical Law,
October 4-12, 1929, Warsaw: Minutes (1975) at p.110.
Page 25 of 48
aforementioned causes to the law of the court chosen by
the plaintiff. Perhaps the law of the aircraft’s
nationality could constitute a surer and more just
element of determination vis a vis the carrier. The
above-cited disadvantages could be eliminated in a
more radical fashion in substituting for the period of
limitation a period of forfeiture. This would render the
second paragraph useless. Moreover, one must add,
after the word ‘instituted’ the phrase ‘under penalty of
forfeiture’
42
.”
25.2 Their objection stemmed from the concerns expressed by shippers, who
would be subjected to multiple jurisdictions without any clarity with respect
to the position of law in each jurisdiction. It is in this context, that the Italian
Delegation sought amendment of Article 29 seeking immunity from
interference on the ground of limitation, which varies from jurisdiction to
jurisdiction, causing great amount of uncertainty. In reply, the Delegation
from France stated:
"MR. RIPERT (France): I am not at all opposed to the
Italian proposal, but it is aimed, in the final analysis,
only at the causes of suspension of the period of
limitation, which must disappear. It must, all the same,
be indicated that it's the law of the forum court which
will fix how, within the period of two years, the court
will be seized, because in all the countries of the world
suits are not brought in the same way.
One has to act within two years; who will fix the
beginning of the suit? A text is necessary which says
that it will be the forum court which will say if the suit
was properly begun. In France, there is the pretrial
conference; in other countries referral to the civil
court is indispensable; but I am very much of the
opinion that we must eliminate the interruption of the
period of limitation, and I ally myself with the Italian
proposal.
42
Ibid. Pg 112-113.
Page 26 of 48
MR. MOTONO (Japan): I'd like to point out one
question of wording. The liability action means
interruption of the period of limitation.
MR. RIPERT (France): Exactly, it's because the suit is
not introduced in all countries in the same way that it
has to be, that the forum court will indicate how it must
be introduced.”
43
25.3 After the deliberations, Sub-Article (2) was modified and in its place,
the following clause was inserted and the Convention was brought into force.
Thus, Article 29 in its present form is as under:
“Article 29
1. The right to damages shall be extinguished if an action
is not brought within two years, reckoned from the date of
arrival at the destination, or from the date on which the
aircraft ought to have arrived, or from the date on which
the carriage stopped.
2. The method of calculating the period of limitation shall
be determined by the law of the Court seized of the case.”
26. We must at this stage mention a minor fact, which has no bearing on
the issue that we are concerned with but it is necessary to make a reference
to it. We have noticed that sub-article (2) of Article 29 of the Warsaw
Convention, 1929 does not find place in Rule 29 as incorporated in Schedule
I of the Indian Carriage by Air Act, 1934. After independence, when the
Parliament enacted the Carriage by Air Act, 1972, after repealing the 1934
Act and incorporated the Warsaw Convention, 1929 in First Schedule. Here
also sub-article (2) of the Warsaw Convention is missing in Rule 29.
However, Second Schedule incorporating the Warsaw Convention, as
43
Ibid pg 111.
Page 27 of 48
amended by the Hague Protocol, 1955 consisting of the Article 29 (1) and (2)
is fully incorporated in Rules 30 (1) and (2) in the Second Schedule. We need
not say anything more than this after noting the minor variation.
27. The legislative history of the Warsaw Convention coupled with the
deliberations at the International Conferences as a result of which the draft
got modified and took the shape as it stood in Article 29 of the Convention,
lends sufficient clarity to the purpose and object of introducing sub-article
(2) to Article 29, which is to exclude the suspension of any period of
limitation. As noticed in the conference, suits are not brought in the same way
across jurisdictions and therefore this deliberation is specifically left to the
forum Court to fix and determine the beginning of the suit or the proceeding.
28. This position is well articulated in the judgment of the Appellate
Division of the Supreme Court of New York in Kahn v. Trans World
Airlines
44
.
“Moreover, it is equally clear from the delegates’
discussion that the only matter to be referred to the
forum court by paragraph 2 of the present article 29
was the determination of whether the plaintiff had taken
the necessary measures within the two year period to
invoke that particular court's jurisdiction over the
action. An obvious example of the need for such a
provision is the difference between the method of
commencing an action in the New York State courts as
opposed to the Federal courts. Thus, in New York,
depending upon the forum chosen, the plaintiff in an
action governed by the Warsaw Convention must either
effect service upon the defendant (CPLR 304) or file a
complaint in the Federal District Court (Fed Rules Civ
44
Supra no. 17.
Page 28 of 48
Pro, rule 3 [in US Code, tit 28, Appendix] within the
time limited by article 29, i.e., two years.
Accordingly, regardless of whether or not the
Convention itself "creates" any causes of action, it is
readily apparent that the time limitation incorporated
in article 29 was intended to be in the nature of a
condition precedent to suit, and that it was never
intended to be extended or tolled by infancy or other
incapacity. In addition, such an intent on the part of the
draftsmen is fully consistent with one of the
Convention’s over-all purposes-that of establishing “a
uniform body of world-wide liability rules to govern
international aviation.”
29. In view of the uncertainty in the language of sub-article (2) of
Article 29, as in the case of Sub-Rule (2) of Rule 30 for India, courts of law
across jurisdictions were called upon to consider the rival submissions on the
construct of the said provision. Learned counsels appearing for both the
parties have placed before us the decisions of foreign courts that have ruled
upon Article 29 and interpreted the said provision, more or less consistently
taking a view that the domestic laws of limitation will have no bearing on the
period of two years. Before we consider these judgments, it is important to
restate a well-recognized principle that courts of law must endeavor to
maintain a uniformity of interpretation with courts of other jurisdictions
while interpreting international treaties and conventions.
Page 29 of 48
30. The need for a uniform policy and a global approach has been underlined
by the House of Lords in Morris v. KLM Royal Dutch Airlines
45
and in a number
of other decisions.
46
"81. In an ideal world the Convention should be accorded
the same meaning by all who are party to it. So, case law
provides a further potential source of evidence. Careful
consideration needs to be given to the reasoning of courts
of other jurisdictions which have been called upon to deal
with the point at issue, particularly those which are of high
standing. Considerable weight should be given to an
interpretation which has received general acceptance in
other jurisdictions. On the other hand, a discriminating
approach is required if the decisions conflict, or if there is
no clear agreement between them."
31. Having said so, we will now refer to some leading judgments on the
issue from the jurisdictions of the United Kingdom, United States of America
and Australia which examined Article 29 of the Warsaw Convention.
United Kingdom
32. The Supreme Court of the United Kingdom passed a judgment in
Laroche v. Spirit of Adventure
47
where it examined the history of Article 29
of the Warsaw Convention and held that it provided a substantive time bar
and not a procedural time bar. It further held that the Warsaw Convention
provides a code that is exclusive of any resort to the Articles of domestic law.
The Court traced the history of the provision as above and ultimately held
45
[2001] 3 WLR 351
46
Zicherman v. Korean Air Lines Co. Ltd.,516 US 217, (1996), EI AI Israel Airlines Ltd. V. T.Y.Tseng 525 U.S.
155 (1999).
47
Supra no. 10.
Page 30 of 48
that the Warsaw Convention sought to adopt the position suggested by the
Republic of Italy. It was held,
“70. The judge was in my view, right to hold at [48] to [51]
that article 29(2) does not permit the 2 year period to be
suspended, interrupted or extended by reference to
domestic law. The only thing that it leaves for
determination by the court seized of the case is the
calculation of the precise dates of the beginning and end
of the relevant two year period and the determination of
whether the action has been brought within that two year
period.
71. In reaching his conclusion on this issue, the judge had
regard to what was said in the travaux preparatoires to the
Warsaw Convention in relation to what became article 29.
The first draft of what became article 29(2) was in these
terms:
"The method of calculating the period of
limitation, as well as the causes of suspension and
interruption of the period of limitation, shall be
determined by the law of the court having taken
jurisdiction" (emphasis added).
72. The Italian delegation objected that the words in italics
made "the legal situation of the carrier too uncertain". The
Italians later proposed deleting the second paragraph so
that "after two years any action dies and is no longer
admissible". Their reasoning was that "the period of time,
in order that there be interruption of the period of
limitation, varies with the country, and it is very difficult
for the shipper, the consignor to know when the
interruption or the suspension begins". Their proposal was
"very simple; if two years after the accident no action has
been brought, all actions are extinguished". After further
discussion, the Italian proposal was adopted. These
discussions were in plenary session. It seems that the
matter was raised again in committee, when it was decided
to accept the modified Italian proposal to adopt the
wording "the liability action must be instituted under pain
of forfeiture within a period of two years". Despite the
puzzling French contribution at that stage that "one
determines at the same time the periods of interruption and
Page 31 of 48
of limitation. We are in agreement in substance", the
Italian proposal was adopted. There was then yet further
discussion which led to the adoption of article 29 in the
form in which it was finally signed.
73. Although it is difficult to follow the minutiae of these
negotiations, in my view it is clear that the signatories
to the Warsaw Convention intended to adopt the Italian
proposal that, in the interests of certainty, at the expiry
of the two-year period, all claims under the Convention
would be "extinguished" and that the only matters for
determination by the court seized of the matter would
be determination of the dates and whether the action
was brought within the two-year period. This is a
powerful indicator that the words of article 29(1) mean
what they say and that the two-year period is not subject
to suspension, interruption or extension in any
circumstances.
74. So to interpret article 29(1) would also further the
object of the Convention that it was to be "a uniform
international code, which could be applied by the courts
of all the high contracting parties without reference to the
rules of their own domestic law": see per Lord Hope in
Sidhu v British Airways Plc [1997] AC 430, 453C-D.
75. I also accept the submission of Mr Lawson that this
interpretation is consistent with the rule that a general
provision (such as article 29(2)) cannot give validity to a
rule of procedure of the court seized of the case that is in
conflict with an express provision of the Convention. As
Phillips LJ said in Milor S.R.L v British Airways Plc
[1996] QB 702, 707E: "by way of example, if the
procedural law of the chosen forum imposed a 12 month
limitation period, it does not seem to me that this could
displace the two year period of limitation laid down by
article 29 of the Convention.
76. As regards US jurisprudence, the decision of New
Pentax v Trans World relied on by Mr Davey is a first
instance decision. In the subsequent decision of Fishman
v Delta Air Lines Inc 132 F 3d 138, the Court of Appeal of
the same circuit rejected the proposition that article 29(2)
permitted the limitation period to be determined in
Page 32 of 48
accordance with the lex fori. In reaching this conclusion,
the court had regard to the travaux preparatoires to the
Warsaw Convention and reached the same conclusion on
their meaning and effect as I have done at [73] above.
Although New Pentax does not appear to have been cited
in Fishman, the latter is a decision of a superior court.”
33. A similar view has been taken in a number of other judgments
48
in the
United Kingdom.
United States of America
34. The Second Circuit of the Court of Appeals in the United States of
America in Fishman v. Delta Air Lines Inc
49
, a burn injury was inflicted on
an infant by an air hostess. The infant, through her mother, brought an action
against the airline after a period of 2 years, claiming that the local limitation
law suspends limitation for infants. The Court of Appeals also traced the
history of the provision in the Warsaw Convention to find that:
“Almost every court that has reviewed the drafting
minutes of the Convention, including the district court
in this case, has rejected the contention that Article
29(2) incorporates the tolling provisions otherwise
applicable in the forum. See, e.g., Castro v. Hinson, 959
F. Supp. 160, 163 (E.D.N.Y. 1997); Fishman, 938 F.
Supp. at 230; Royal Ins. Co., 834 F. Supp. at 636; Kahn,
443 N.Y.S.2d at 87. The minutes reveal that the drafters
of the Convention specifically considered and rejected
a proposed provision that would have allowed the
limitations period to be tolled according to the law of
the forum court. See R.C. Horner and D. Legrez,
Minutes of the Second International Conference on
Private Aeronautical Law, 110-13 (1975); Kahn, 443
N.Y.S.2d at 86-87; Royal Ins. Co., 834 F. Supp. at 636.
48
See, Sidhu v. British Airways (1997) 2 WLR 26; Philips v. Air New Zealand (2002) EWHC 800 (Commercial
Court).
49
Supra no. 11.
Page 33 of 48
As the district court recognized, the main concern of the
drafters in rejecting the tolling proposal was "to
remove those actions governed by the Convention from
the uncertainty which would attach were they to be
subjected to the various tolling provisions of the laws
of the member states." Kahn, 443 N.Y.S.2d at 87.
Moreover, the debates over the language ultimately
adopted in Article 29 indicate that the only matter to be
referred to the forum court by subsection 2 of Article 29
was "the determination of whether the plaintiff had
taken the necessary measures within the two-year
period to invoke that particular court's jurisdiction
over the action."
35. Similarly, the Court of Appeals for the Ninth Circuit of the United
States of America in Narayanan v. British Airways
50
affirmed the position
under the Warsaw Convention and found that the Montreal Convention also
envisages the same position. It was held,
“The drafting history of the Warsaw Convention also
reveals that the drafters intended Article 29 to operate
as a statute of repose, which, “like a jurisdictional
prerequisite, extinguishes a cause of action after a fixed
period of time … regardless of when the cause of action
accrued.” Albillo-De Leon v. Gonzales 410 F.3d 1090,
1097 n.5 (9
th
Cir. 2005). The drafters considered – and
rejected – a proposal that would have allowed the
limitations period to be tolled in accordance with the
law of the forum court. See R.C. Horner and D. Legrez,
Minutes of the Second International Conference on
Private Aeronautical Law, 110-13 (1975); see also
Fishman, 132 F.3d at 144 (observing that “[a]lmost
every court that has reviewed the drafting minutes of
the [Warsaw] Convention … has rejected the
contention that Article 29(2) incorporates the tolling
provisions otherwise applicable in [a] forum [state]”.
Instead, the Warsaw Convention’s drafters adopted a
“very simple” proposal advanced by the Italian
50
2014 U.S. App. LEXIS 5173: 747 F.3d 1125
Page 34 of 48
delegation: “if two years after the accident no action
has been brought, all actions are extinguished.”
…
Consistent with this history, the prevailing view among
courts across jurisdictions is that the Montreal
Convention’s limitation period operates as a condition
precedent to suit and, as such, is not subject to
equitable tolling.”
36. The Supreme Court of New York also came to a similar conclusion in
Kahn v. Trans World Airlines Inc.
51
In this case, the Court had occasion to
examine the history of the provision once again. It looked into the travaux
preparatoires and found that the provision was debated and based on the
debates, it held that:
“Based upon the foregoing, it is abundantly clear that
the delegates to the Warsaw Convention expressly
desired to remove those actions governed by the
Convention from the uncertainty which would attach
were they to be subjected to the various tolling
provisions of the laws of the member States, and that
the two-year time limitation specified in article 29 was
intended to be absolute — barring any action which had
not been commenced within the two-year period.
Moreover, it is equally clear from the delegates'
discussion that the only matter to be referred to the
forum court by paragraph 2 of the present article 29
was the determination of whether the plaintiff had taken
the necessary measures within the two-year period to
invoke that particular court's jurisdiction over the
action. An obvious example of the need for such a
provision is the difference between the method of
commencing an action in the New York State courts as
opposed to the Federal courts. Thus, in New York,
depending upon the forum chosen, the plaintiff in an
action governed by the Warsaw Convention must either
effect service upon the defendant (CPLR 304) or file a
complaint in the Federal District Court (Fed Articles
51
Supra no. 17.
Page 35 of 48
Civ Pro, Article 3 [in US Code, tit 28, Appendix])
within the time limited by article 29, i.e., two years.”
Australia
37. The Federal Court of Australia, in Bhatia v. Malaysian Airline System
Berhad
52
followed the judgments in Laroche and Kahn and held that the local
limitation law will not apply in view of Article 29(1) of the Warsaw
Convention. It was held in Para 34:
“34. The Convention has as its purpose the uniformity
and certainty of the law, among its signatories, in
relation to (relevantly) personal injury suffered by
passengers in the course of international air carriage
to which it applies. The rights created by the
Convention (given the force of law in Australia) are
rights enjoyed by persons referred to as “passengers”.
The corresponding liabilities are imposed upon persons
referred to as “carriers”. The word “action” in Art 35
must be given a construction that advances the object
of providing certainty in the legal relationship between
these two persons. The “right to damages” subject to
extinguishment under Art 35, may naturally be
understood as referring to the right possessed by one
person that is enforceable against another person
having a corresponding liability. It follows that the
steps necessary to bring an “action” must include steps
sufficient to invoke the jurisdiction of a court to
determine the controversy concerning the respective
rights and liabilities of the first person in relation to the
second. Thus, the words “brought” and “action” must
be understood as referring to a process by which the
disputed rights and liabilities of the two persons come
before a court for adjudication.”
52
Supra no. 18.
Page 36 of 48
38. We have come across one decision of France's Cour de Cassation in
Lorans v. Air France
53
which has taken a different view of the matter.
However, the decisions that we have referred have considered the issue from
all perspectives including the decision of the French Court, and did not accept
the reasoning adopted therein. It is also important to mention that there are
some decisions of the US Courts in the case of Joseph v. Syrian Arab
Airlines
54
and Flanagan v. McDonnell Douglas Corp
55
which have also not
deliberated the issue in detail on arriving at the interpretation as is done in
the cases that we have referred to hereinabove. Excluding these minor
variations, an overwhelming majority of the decisions have taken an
informed view that Article 29 excludes and is intended to exclude the
application of municipal legislations, excluding the periods of limitation.
39. So far as India is concerned there is no direct decision of this Court on
the Air Act, 1972. The closest we get is the decision of this Court under the
Indian Carriage of Goods by Sea Act, 1925, which fell for interpretation in
East and West Steamship Co. v. S.K. Ramalingam Chettiar
56
, where this
Court had observed that “Rules of limitation are likely to vary from country to
country. Provisions for extension of periods prescribed for limitation would
similarly vary. We should be slow therefore to put on the word “discharged from
liability” an interpretation which would produce results varying in different
53
(1977) 31 RFDA 268: (Cour de Cassation [Assemblee Pleniere] Jan,14, 1997).
54
88 F.R.D. 530 (S.D.N.Y. 1980).
55
428 F.Supp. 770 (C.D. Calf. 1977).
56
Supra no. 7.
Page 37 of 48
countries and thus keeping the position uncertain for both the shipper and the
shipowner…It is hardly necessary to add that once the liability is extinguished
under this clause there is no scope of acknowledgment of liability thereafter.
Apart from this, we have certain decisions of the High Courts that have
interpreted Rule 30 of the Second Schedule of the Act.
Decisions of our High Courts on Rule 30, Second Schedule:
40. The High Courts across the country have also taken a similar view that
the Limitation Act, 1963 will be excluded from operation for a claim under
the Air Act. The High Courts have reasoned that the Air Act is a special
statute and would thus prevail over the Limitation Act, 1963, which is a
general statute. The High Court of Delhi in Air India Ltd. v. Tej Shoe Exports
P. Ltd.
57
, Sailesh Textile Industries v. British Airways & Anr.
58
, Indian
Airlines v. Angelique International Ltd. & Anr.
59
, Ethopian Airlines v.
Federal Chemical Works Ltd.
60
, the High Court of Madras in M/s M.R.F Ltd.
v. Singapore Airlines
61
and Air India, Bombay Airport v. Asia Tanning Co.,
62
and the High Court of Bombay, in the judgment impugned before us, have all
taken this view.
41. There is only one decision that has taken a different view of the matter,
and that is the decision of the High Court of Gujarat in National Aviation
57
Supra no. 8.
58
2003 SCC Online Del 318 (at paras 10 to 15).
59
2014 SCC Online Del 6825 (at para 16).
60
2004 SCC Online Del 862 (at para 15).
61
Supra no. 4.
62
2002 SCC Online Mad 802 (at para 7).
Page 38 of 48
Company of India Ltd. v. Jatnadevi Tejraj Jain,
63
. The High Court reasoned
that Article 30(2) of Schedule II makes the law of the Court seized of the
matter applicable and the law of the Court seized of the matter in India is the
Limitation Act, 1963. It was held:
"10. The aforesaid Rule provides that right to damages
shall be extinguished if the action is not brought within
two years from the date on which the aircraft ought to
have arrived at or stopped. However, sub-rule (2)
expressly provides that the calculation of the period of
limitation shall be as per the method determined by the
law of the Court seized with the case. Therefore, it is
apparent that after applying the method as provided by
the law of the Court, the period of 2 years is to be
counted, and thereafter, the right to damages shall get
extinguished if the action is not brought within the said
period of 2 years. The law of the Court seized with the
case is the Limitation Act, 1963. Part III of the
Limitation Act provides for computation of the period
of limitation, which can be said as at par with the
method of calculation of the period of limitation.
Section 14 of the Act provides for exclusion of the time
of proceeding bona fide in Court without jurisdiction.
Therefore, while computing the period of limitation of
two years, in our view, section 14 of the Limitation Act
would apply.”
42. We have already considered the true and correct meaning of Rule 30
(2), or as the case may be Rule 35 (2) of the Third Schedule by referring to
the Conventions, coupled with travaux preparatoires. The Gujarat High
Court has not considered the matter in the right perspective while interpreting
Rule 35 (2).
63
2011 SCC Online Guj 7601 (at para 10).
Page 39 of 48
43. In the ultimate analysis, keeping in view the legislative history of the
Convention and in view of the consistent interpretation of Article 29 of the
Convention adopted in different jurisdictions, for the purpose of uniformity
and also to subserve the purpose and object of the Convention, we are of the
view that Rule 30 (2) does not enable applicability of exclusion of periods
for the purpose of reckoning the period of two years.
Issue No. 2
Whether the Air Act, 1972, particularly Rule 30 of the Second Schedule
expressly excludes the applicability of the Limitation Act, 1963?
44.1 On this issue Shri Navare made a two-prong submission. Rule 30 of
Second Schedule in terms reiterates the applicability of Section 29 of the
Limitation Act and at the same time the Air Act, 1972 being a special law, the
provisions of Limitation Act apply as there is no express exclusion.
44.2 Shri Navare submits that firstly, there is no provision whatsoever in the
Air Act expressly excluding the applicability of the Limitation Act. For this
reason, the provisions of the Limitation Act must apply as a matter of public
policy. Secondly, Rule 30 (2) of the Air Act in terms reiterates the
applicability of the Limitation Act. In the written submissions he has
highlighted the fact that Section 29 of the Limitation Act is very different
from Section 39 of the Limitation Act, 1980 of the United Kingdom.
44.3 On the other hand Ms. Ritu Singh Mann has submitted that the Air Act,
1972 excludes the applicability of the Limitation Act.
Page 40 of 48
45. While dealing with Issue No.1, we have held that the right to damages
itself is extinguished after the expiry of the period of two years and therefore
the provisions of the Limitation Act have no application as there is no right
subsisting for enforcement. In this context we have referred to Section 3 of
the Limitation Act which merely bars the remedy and not the right itself, but
when the statute extinguishes the right itself the position is very different. We
will however consider the present argument of Shri Navare as an alternative
plea and proceed forthwith to deal with the same.
46. Where a period of Limitation is prescribed in a special law, by virtue of
Section 29 of the Limitation Act, such period will apply as if it was provided
in the Schedule of the Limitation Act. Consequently, the provisions of
Sections 4 to 24 will apply for the purpose of computation of period of
limitation. This provision is subject to a bright exception that the Limitation
Act will not apply if it is “expressly excluded” by the Special Act. Section 29
of the Limitation Act to the extent that is necessary is as under: -
“29. Savings
(1)…..….
(2) Where any special or local law prescribes for any
suit, appeal or application a period of limitation
different from the period prescribed by the Schedule,
the provisions of section 3 shall apply as if such period
were the period prescribed by the Schedule and for the
purpose of determining any period of limitation
prescribed for any suit, appeal or application by any
special or local law, the provisions contained in
sections 4 to 24 (inclusive) shall apply only in so far as,
and to the extent to which, they are not expressly
excluded by such special or local law.”
Page 41 of 48
47. The statutory requirement of express exclusion is considered by this
Court in a number of decisions.
64
Express empowerment is not to be
understood in a pedantic manner. Express empowerment is to be gathered
from the provisions of the statute. In Shanmugam v. Commissioner for
Registration
65
, the Privy Council held that:
“It is argued that the Act does not contain the "express
provision" required by the Interpretation Ordinance to
make it applicable. Their Lordships do not agree. Upon
the meaning of the words "express provision" counsel
relied upon in re Meredith and stated that it must be
provision the applicability of which did not arise by
inference. He argued that there was no "express
provision" as no reference had been made to pending
proceedings. Their Lordships are of the view that it is
correct to state that express provision is provision the
applicability of which does not arise by inference. The
applicability, however, of the provision under
discussion to the present case does not arise by
inference; it arises directly from the language used.
The Fact that the language used is wide and
comprehensive and covers many points other than the
one immediately under discussion does not make it
possible to say that its application can arise by
inference only. To be “express provision” with regard
to something it is not necessary that that thing should
be specially mentioned; it is sufficient that it is directly
covered by the language however broad the language
may be which covers it so long as the applicability
arises directly from the language used and not by
inference therefrom. The argument fails."
48. In Hukumdev Narain Yadav v. Lalit Narain Mishra
66
, the Court held
as under: -
64
Needle Industries (India) Ltd. and Anr. v. Needle Industries Newey (India) Holding Ltd. and Ors (1981) 3 SCC
333.
65
[1962] 2 All E.R. 609.
66
(1974) 2 SCC 133.
Page 42 of 48
“17. ……….Even assuming that where a period of
limitation has not been fixed for election petitions in the
Schedule to the Limitation Act which is different from
that fixed under Section 81 of the Act, Section 29(2)
would be attracted, and what we have to determine is
whether the provisions of this Section are expressly
excluded in the case of an election petition. It is
contended before us that the words “expressly
excluded” would mean that there must be an express
reference made in the special or local law to the
specific provisions of the Limitation Act of which the
operation is to be excluded. As usual the meaning given
in the Dictionary has been relied upon, but what we
have to see is whether the scheme of the special law,
that is in this case the Act, and the nature of the remedy
provided therein are such that the Legislature intended
it to be a complete code by itself which alone should
govern the several matters provided by it. If on an
examination of the relevant provisions it is clear that
the provisions of the Limitation Act are necessarily
excluded, then the benefits conferred therein cannot be
called in aid to supplement the provisions of the Act. In
our view, even in a case where the special law does not
exclude the provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it would
nonetheless be open to the Court to examine whether
and to what extent the nature of those provisions or the
nature of the subject-matter and scheme of the special
law exclude their operation.”
49. Following the principle laid down in Hukumdev
67
, we will now examine
the relevant provisions of the Air Act, 1972, its Schedules, and Rule 30, in
particular, to see if these provisions have the effect of expressly excluding the
applicability of the Limitation Act.
67
Supra no. 66.
Page 43 of 48
Carriage by Air Act, 1972
50. The Air Act, 1972 is an Act to give effect to various International
Conventions for the unification of certain Articles relating to international
carriage by air. The Preamble of the Act states:
“An Act to give effect to the Convention for the
unification of certain rules relating to international
carriage by air signed at Warsaw on the 12th day of
October, 1929 and to the said Convention as amended
by the Hague Protocol on the 28th day of September,
1955 1 [and also to the Montreal Convention signed on
the 28th day of May, 1999 and to make provision for]
applying the rules contained in the said Convention in
its original form and in the amended form (subject to
exceptions, adaptations and modifications) to non-
international carriage by air and for matters connected
therewith.”
51. The International Conventions incorporated in the Act are the (i)
Warsaw Convention, 1929; (ii) The Warsaw Convention, 1929 as amended
by the Hague Protocol on 28.09.1955 and (iii) the Montréal Convention,
1999. Section 3 of the Act incorporates the Warsaw Convention into the Act
as the First Schedule and specifically provides it the status of law in India.
Section 4 incorporates the Hague Protocol and provisions it in The Second
Schedule. Section 4A for giving effect to Montréal convention, provides The
Third Schedule to the Act and specifically provides the status of law to these
provisions.
52. The Warsaw Convention as amended by the Hague Protocol is a
complete code within itself for all questions relating to carriage by air by
international carriages. Rule 1(1) provides that the Hague Protocol shall
Page 44 of 48
apply to “all international carriage of persons, baggage or cargo performed
by aircraft for reward”. Rule 2 provides that the Convention will apply to
carriage performed by the State or by legally constituted public bodies.
Chapter II of the Convention (Rules 3 to 16) is entitled “Documents of
Carriage”. Rule 3 relates to the documents that a carriage of passengers must
deliver. Rule 4 prescribes a mechanism for baggage check. Rule 5 to 11
relates to the air waybill in cases of cargo carriages. Rule 12 relates to the
right of the consignor to dispose of the goods in a manner that is not
prejudicial to the carrier. Rule 13 pertains to the rights of the consignee upon
the arrival of the goods. Rule 13(3) provides that where there is a loss of
goods, the consignee shall be entitled to enforce the rights which ‘flow from
the contract of carriage’. Rule 14 provides for the consequences of non-
compliance of Rule 12 and 13.
53. The Chapter with which we are presently concerned with is Chapter III
which is titled ‘Liability of the Carrier’. Rule 17 provides for the liability of
a carrier for damages in the event of death or wounding or other injuries
caused to a passenger while onboard the aircraft. Rule 18 envisages the
liability of a carrier in the event of destruction, loss, damage etc. of cargo.
Similarly, Rule 19 concerns the liability of a carrier upon delay in the carriage
of passengers, baggage or cargo. Rule 20 provides for an equitable exemption
to the carrier if he proves that he had taken all necessary measures to negate
the delay or damage. Rule 21 is yet another equitable provision that protects
Page 45 of 48
the carrier in cases of contributory negligence. Rule 22 specifies the
minimum liability of the carrier. Rule 23 nullifies all limits which are lower
than those provided in Rule 22.
54. Rule 24 stipulates that any action for damages “can only be brought
subject to the conditions and limits set out in these rules”. Rule 25 relates to
the vicarious liability of the carrier. Rule 26 provides that a servant/agent of
a carrier shall be exempted from liability if he proves that he acted within the
scope of his employment. Rule 27(1) specifies that receipt of baggage or
cargo is prima facie proof of its good condition. Rule 27(2) provides that
where the goods are damaged, a complaint must be made within 7 days of the
date of receipt of baggage and 14 days from the date of receipt of cargo. Rule
27(3) provides that a complaint shall be made in writing. Rule 27(4) further
provides that if no complaint is made within the period specified, no action
shall lie against the carrier except in cases of fraud. Rule 28 stipulates that
the legal representatives of a deceased person can bring an action for
damages. Rule 29 is the jurisdictional clause, and provides that the action
may be brought in the territory of one of the State Parties, either before the
court of the domicile of the carrier or of its principal place of business or
where it has a place of business through which the contract has been made,
or before the court at the place of destination. Rule 29(2) stipulates that the
‘questions of procedure shall be governed by the law of the court seized of
the case.’
Page 46 of 48
55. Rule 30, which is the fulcrum of the case, may be extracted in full:
“30. (1) The right to damages shall be extinguished if
an action is not brought within two years, reckoned
from the date of arrival at the destination, or from the
date on which the aircraft ought to have arrived, or
from the date on which the carriage stopped.
(2) The method of calculating the period of limitation
shall be determined by the law of the Court seized of the
case.”
56. Chapters IV, and V are not of much relevance to the case at hand.
Suffice it to say that they are machinery provisions that do not affect the
interpretation of Rule 30.
57. The Convention certainly incorporated two variables in the context of
reckoning the period specified in Rule 30 (1) of limitation. The first event
relates to the time, which is a fixed period of two years. The second event
relates to the commencement of cause of action which has been specified as
any of the three events being (i) arrival at the destination; or (ii) date on which
the aircraft ought to have arrived; or (iii) the date on which the carriage
stopped. Now, the only event that remains is the date on which the action for
damages is initiated as this would depend upon the law of the Court seized of
the case. Rule 30(2) specifically provides that “the method of calculating the
period will be determined by the law of the Court seized of the case.” This
should necessarily follow for the reason that the period of two years for
enforcing the right would be extinguished if an action is not brought within
the said period.
Page 47 of 48
58. We may also note that giving effect to the meaning of the words the
‘law of the court seized of the case’ would lead to an anomalous situation
where the law of every country would be incorporated into the Convention,
thereby defeating the purpose of an International Convention which is to
bring about uniformity across the globe in the laws applicable to carriage by
air.
59. Sub-Rule (2) must therefore be interpreted harmoniously keeping in
mind not only the content of Sub-Rule (1) but also the purpose and object of
the Convention which is to bring about the unification of Rules relating to
International Carriage by Air. The intention behind Article 35(2) was merely
to fix the date on which the suit (or action) has ‘begun’ and the date on which
limitation expires, as per the laws of the country. The example given by the
French Delegation makes this position clear as it was to accommodate
provisions such as pre-trial conferences. As stated above, in India, such a
position could possibly arise if the legislature envisages mandatory pre-trial
mediation. It is in order to accommodate for this eventuality that the law-
makers left some room for the domestic law to operate.
60. Having considered the matter in detail, we are of the opinion that Rule
30 of the Carriage by Air Act 1972, expressly excludes the applicability of
the Limitation Act,1963. Issue No.2 is answered accordingly.
61. For the reasons stated above, the Appeal arising out of SLP No. 16767
of 2018, from the judgment of the High Court of Judicature at Bombay in WP
Page 48 of 48
No. 6647 of 2014 is accordingly dismissed. The parties shall bear their own
cost.
62. We place on record the valuable assistance given by Shri Vinay Navare,
assisted by Shri Pravartak Pathak, Advocate, Ms. Gwen Karthika, Advocate
and Ms. Abha R. Sharma, AOR for the Appellants and Ms. Ritu Singh Mann
for Respondent assisted by Shri Dheeraj K. Garg, Advocate and Shri Rajan
K. Chourasia, AOR.
……………………………….J.
[K.M. JOSEPH]
……………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA ]
NEW DELHI;
JULY 29, 2022
Legal Notes
Add a Note....