Fujitsu Computer Products Corp & Ors v Bax Global Inc & Ors [2005] EWHC 2289 (Comm) (09 November 2005)

Neutral Citation Number: [2005] EWHC 2289 (Comm) Case No: 2003 Folio No 595 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION COMMERCIAL COURT Royal Courts of Justice Strand, London, WC2A 2LL 09/11/2005 B e f o r e : MR JUSTICE CHRISTOPHER CLARKE ____________________ Between: (1) FUJITSU COMPUTER PRODUCTS CORP (2) FUJITSU LIMITED (3) FUJITSU EUROPE LIMITED Claimants - and - BAX GLOBAL INC BAX GLOBAL (UK) LIMITED BAX GLOBAL LIMITED BAX GLOBAL LIMITED BAX GLOBAL INC BAX GLOBAL INC Defendants ____________________ Mr John Russell (instructed by Clyde & Co) for the Claimants The Hon Michael McLaren QC (instructed by Holmes Hardingham) for the Defendants Hearing date: 22 September 2005 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE CHRISTOPHER CLARKE: By a House Air Way Bill HAWB MEH031350 dated 12 th September 2001("the HAWB") Bax Global Inc ("Bax") acknowledged the shipment of a consignment of 2,178 kg of hard disk drives which were to be carried by air from Manila in the Philippines to Glasgow. Fujitsu Computer Products Corp., the first claimant, was the shipper and Fujitsu Europe Ltd., the third claimant, was the consignee. The contract of carriage, which was between one or other of the Fujitsu claimants, (the second claimant is Fujitsu Limited) and Bax, was governed by the Warsaw Convention with the Amendments made by the Hague Protocol ("Warsaw-Hague"), which is set out in Schedule 1 to the Carriage by Air Act 1961. Bax subcontracted the carriage to Emirates, the airline. The consignment was stolen. Subject only to proof of title to sue Bax is liable to one or more of the claimants pursuant to Article 18 of Warsaw-Hague. The claimants say that the theft was either an "inside job" or that the security was so lax that the loss can be said to result from an act or omission of the carrier, its servants or agents, done with intent to cause loss, or recklessly and with knowledge that damage would probably result. If so, by virtue of Article 25 of the Convention, Bax will not be entitled to limit their liability under Article 22(2), and, subject to proof of quantum and title to sue, the claim is worth about US $320,000. If not, the question, which is the preliminary issue that I have to decide, is whether the HAWB: "failed to comply with the notice requirements of Article 8(c) of [Warsaw-Hague] so that by virtue of Article 9 the defendant is unable to rely on the limitation provisions of Article 22". If Bax is entitled to limit its liability the claim is only worth about $20,000. Warsaw-Hague provides as follows: " Article 8 The air waybill shall contain (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; (c) a notice to the consignor to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to cargo." Article 9 If, with the consent of the carrier, cargo is loaded on board the aircraft without an air waybill having been made out, or if the air waybill does not include the notice required by Article 8, paragraph (c), the carrier shall not be entitled to avail himself of the provisions of Article 22, paragraph (2)." That is the English text. In the event of any inconsistency, the French text prevails: Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616. The French text of Article 8(c) is as follows: "(c) un avis indiquant aux expediteurs que, si le transport comporte une destination finale ou une escale dans un pays autre que le pays de depart, il peut etre regi par la Convention de Varsovie qui, en general, limite la responsabilite des transporteurs en cas de perte ou d'avarie des merchandises" A potential inconsistency lies in the fact that "en general" has been translated into English as in "in most cases". The claimants contend that the HAWB does not contain a notice to the effect specified in Article 8(c). They say that what is needed is a self-contained and free standing section of the air waybill setting out the information required. Bax say that it is sufficient that the information required by Article 8(c) is contained somewhere within the HAWB, so that anyone who cares to read it is given notice of it, and that such information is, in the present case, contained in the conditions on the reverse of the HAWB, taken with these words on the face of the bill: "It is agreed that the goods herein are accepted in good order and condition (except as noted) SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF. THE SHIPPER'S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER'S LIMITATION OF LIABILTY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required". The claimants say that, even if Bax are right about what suffices for a notice, the wording of the HAWB does not contain the requisite information. The issue for determination thus raises two sub-issues: (a) whether the air waybill contains a notice; (b) whether, if it does, the notice is to the effect specified in Article 8 (c). As between the parties the point at issue is a technical one. Neither side has the advantage of obvious merit. Fujitsu are a very large organisation. I have little doubt that they and, if they are concerned, their insurers, are well aware that air carriers are, under the Convention, usually entitled to limit their liability save in exceptional circumstances, unless a special declaration of interest is made. Mr John Russell, on their behalf, candidly accepted that the claimants had not been in any way prejudiced by the form of the waybill, or lured into a contract that they would not otherwise have made. Nevertheless, if the requisite notice has not been given in the waybill, it is no answer that the recipient knew what the notice would have told him if it had been there. On the other hand, the reason why Bax used the form of air waybill that they did is a mystery. IATA has a recommended form of waybill. It contains on its face wording almost identical to that set out in paragraph 5 above, with the addition of another sentence not presently material. On the reverse of the waybill, at the top, immediately above the Conditions of Contract are the following words: "NOTICE CONCERNING CARRIER'S LIMITATION OF LIABILTY IF THE CARRIAGE INVOLVES AN ULTIMATE DESTINATION OR STOP IN A COUNTRY OTHER THAN THE COUNTRY OF DEPARTURE, THE WARSAW CONVENTION MAY BE APPLICABLE AND THE CONVENTION GOVERNS AND IN MOST CASES LIMITS THE LIABILITY OF THE CARRIER IN RESPECT OF LOSS, DAMAGE OR DELAY TO CARGO TO 250 FRENCH GOLD FRANCS PER KILOGRAM, UNLESS A HIGHER VALUE IS DECLARED IN ADVANCE BY THE SHIPPER AND A SUPPLEMENTARY CHARGE PAID IF REQUIRED. THE LIABILTY LIMIT OF 250 FRENCH GOLD FRANCS PER KILOGRAM IS APPROXIMATELY USD 20.00 PER KILOGRAM ON THE BASIS OF USD 42.22 PER OUNCE OF GOLD". Bax did not use the IATA form. Nor did it use a form of its own which contains on its face, buried in some wording, the words "Principal's attention is drawn to the notice in carrier's conditions concerning his (sic) limitation of liability" . On the reverse of this waybill at the top left hand side, above the conditions, is a notice in the IATA form, save that the words below the heading are not all in capital letters. Whether the failure to use this Bax form was by accident or design is not apparent. But the fact that Bax did not did do so does not determine whether the form that they did use was non-compliant. The issue that I have to decide, upon which I was told there is no reported authority, may have a wider significance. Article 3 of Warsaw-Hague prescribes the contents of a passenger ticket. By Article 3(1)(c) the ticket is to contain: "(c) a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for deaths or personal injury and in respect of loss of or damage to baggage" Article 4 prescribes the content of the baggage check, which by Article 4(1)(c) is to contain "(c) a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage." As can be seen the language of Article 4(1)(c), and the relevant part of Article 3(1)(c) is the same as that of Article 8 (c) save for the addition, in the latter, of the words "to the consignor" after "a notice" and the use of the word "cargo" instead of "baggage" . Articles 3(2) and 4(2) provide that, if the passenger ticket or baggage check does not include the notice required by paragraph (1)(c) of the respective Articles, the carrier cannot avail himself of the limitation provisions of Article 22. The history of the Convention Prior to its amendment by the Hague Protocol 1955, the Warsaw Convention ("Unamended Warsaw") contained in Article 8(q) the following provision: "The air waybill shall contain the following particulars: … (q) a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention" . As appears from the lettering of that sub-paragraph the statement was one of 17 matters particulars of which were required to be stated in the air waybill. Article 8 (q) was particularly troublesome to air carriers because whether or not the carriage was subject to Unamended Warsaw was not necessarily easy to decide. If the carriage was so subject, but the carrier failed to say that it was, Article 9 provided that the carrier was not entitled to avail himself of the limitation provisions of the Convention so a clerical error could have very serious consequences. A means of escaping from this dilemma would be to adopt a single form of air waybill which stated that the carriage was subject to the Convention – whether it was or not. That would, however, mean that, if the carriage was not so subject, the airway bill would be misleading. That problem was met by the use of a condition in the following or similar form: "Carriage hereunder is subject to the rules and limitations relating to liability established by [Unamended Warsaw] unless such carriage is not international carriage as defined by the Convention". In Seth v BOAC [1964] 1 Lloyd's Rep 268, the US Court of Appeals, upholding the decision of the US District Court for the District of Massachusetts, held that this condition was a sufficient statement under Article 4 (3) (h) of Unamended Warsaw, which required "a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention" . The argument had been that the words "unless such carriage is not international carriage as defined by the Convention" meant that the statement was insufficiently categorical for the purposes of the Convention. In giving the judgment of the Court, Woodbury Ch. J said this: "The statement on the ticket quoted above gives the passenger clear notice that limitations on the carrier's liability for the loss of checked baggage are provided by the Warsaw Convention and that the carrier will avail itself of those limitations if it can. The ticket does not leave the passenger in the dark as to a hidden risk he might not appreciate. It gives him fair warning of the existence of limitations on the carrier's liability which he can avoid only on showing that the carriage undertaken by the carrier is not "international carriage" as defined in the Warsaw Convention. This gives the passenger blunt warning to find out the nature of his carriage and if covered by the Warsaw Convention to declare excess value and pay the price for increased liability in the event his baggage is lost. We think this constitutes compliance with sub-par (h) of Art. 4 of the Warsaw Convention." In Samuel Montagu Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306 the Court of Appeal considered an almost identical clause. In that case the plaintiff contended that the "unless" clause meant that the air waybill did not comply with Article 8 (q) of Unamended Warsaw, so that the Article 22 limitation on its right to receive the full value of four lost boxes of gold was inapplicable. Lord Denning disposed of that contention in these terms: "I do not think we should give a strict interpretation to article 8 (q) in the Convention. We should not give it so rigid an interpretation as to hamper the conduct of business. I do not interpret the article as meaning that the waybill must contain the statement verbatim. It is sufficient if it contains a statement to the like effect. Moreover, the carriage cannot be subject to all the rules relating to liability established by the Convention: for some relate to goods, others to passengers, others to luggage. It follows that (q) is satisfied if the statement says that the carriage is subject to the rules so far as the same are applicable to the carriage . If that is sufficient, it must also be sufficient to say that the carriage is subject to the rules except in so far as the same are not applicable to the carriage. The next step is plain. If that is sufficient, it must also be sufficient to say that the carriage is subject to the rules except so far as it is not international carriage . Hence it is sufficient to say "unless such carriage is not international carriage as defined by the Convention". It is just another way of saying that the carriage is subject to the rules so far as the same are applicable. Another way of looking at the statement is to read it in conjunction with the carriage stated on the face of the document, which was London to Zurich. Everyone concerned with the waybill knew that carriage from London to Zurich was international carriage. To those persons (and no one else matters) the words "unless such carriage is not international carriage as defined by the Convention" were mere surplusage. They added nothing. They were inapplicable to the circumstances of this carriage and could be ignored." (Italics as original) Warsaw-Hague The amendments to the Warsaw Convention provided for by the Hague Protocol were the result of an international conference at The Hague in September 1955. The travaux for that conference indicate that various proposals were mooted. They included proposals that the Convention should not lay down any requirements for the content of documents of carriage; or that, if they did, there should be no sanction for failure to comply so far as cargo was concerned. These proposals were rejected. Instead the delegates adopted what became the provisions of Warsaw- Hague including those to which I have referred. Montreal Warsaw-Hague was further amended in 1975 in Montreal. In respect of cargo, the Convention, as there amended, no longer contains a provision that the air waybill shall say anything about the applicability or otherwise of the Convention. In addition it provides, in Article 9, that non compliance with its much more limited provisions about documentation relating to cargo: "shall not affect the validity of the contract of carriage, which shall none the less be subject to the rules of this Convention including those relating to limitation of liability." The amendments made in Montreal have no application to the present case because, although the United Kingdom is, the Philippines are not, one of the High Contracting Parties to the Fourth Protocol agreed in Montreal. The wording of the air waybill. The HAWB contains on its face the words set out in paragraph 5 above. It also indicates on its face that the goods are to be carried from Manila to Glasgow. On the reverse of the Bill there is nothing that is described as a notice. What are set out are Conditions of Contract which read, so far as relevant as follows: "1 As used in this contract "Convention" means the Convention for Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, 12 th October 1929, or that Convention as amended by the Hague Protocol, 1955 whichever may be applicable to the carriage hereunder… 2. a) Carriage hereunder is subject to the rules relating to liability established by the Convention, unless such carriage is not "international carriage" as defined by the Convention. (See Carrier's tariffs and conditions of carriage for such definition). b) To the extent not in conflict with the foregoing, carriage hereunder and other services performed by each Carrier are subject to (i) applicable laws (including national laws implementing the Convention), government regulations, order and requirement. (ii) provisions herein set forth, and applicable tariffs, rules, conditions of carriage, regulations and timetables (but not the times of departure and arrival therein) of such carrier, which are made part hereof and which may be inspected at any of its offices and airports from which it operates regular services. c) For the purpose of the Convention, the agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and the place of destination, set forth on the face hereof or shown in Carrier's timetables as scheduled stopping places for the route. d) In the case of carriage subject to the Convention, the shipper acknowledges that he has been given an opportunity to make a special declaration of the value of the goods at delivery and that the sum entered on the face of the air waybill as "Shipper's/Consignor's Declared Value – For Carriage", if in excess of $20.00 US currency per kilo, constitutes such special declaration of value. …………… Except as the Convention or other applicable law may otherwise require: a) Carrier is not liable to the shipper or to any other person for any damage, delay or loss of whatsoever nature (herein collectively referred to as "damage") arising out of or in connection with the carriage of the goods unless such damaged [sic] is proved to have been caused by the negligence or wilful fault of Carrier and there has been no contributory negligence of the shipper, consignee or other claimant; ….. c) The charges for carriage having been based upon the value declared by the shipper, it is agreed that any liability shall in no event exceed the shipper's declared value for carriage stated on the face hereof, and in the absence of such declaration by shipper, liability of Carrier shall not exceed $20.00 US Currency per kilo of goods destroyed, lost, damaged or delayed, all claims shall be subject to proof of value." The approach to construction Article 31 of the 1980 Vienna Convention on the Law of Treaties provides as follows: " 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 their object and purpose" That Treaty does not have the force of law and was, in any event, prospective in its effect. But it represents, in my judgment, the correct approach to take to the interpretation of Warsaw-Hague. Both the claimants and the defendant invited me to take a purposive approach to the construction of the Treaty but differed as to what that purpose was and how it might affect that construction. Does the HAWB contain a notice? Mr Michael McLaren QC, for Bax submits that the basic purpose of Article 8 (c) is to ensure that the shipper should be aware that the Warsaw Convention might apply if the carriage was international and that, in such a case, the carrier would generally be able to limit its liability for loss of or damage to cargo. The words "a notice" should be construed so as to give effect to that purpose, and not so as to impose any further more specific requirement. He points out that there is nothing in Article 8 (c) which requires a notice (i) to employ any form of words; (ii) to be headed "Notice"; (iii) to be in any particular format; (iv) to be separate from any other text; or (v) not to have any other material with it as well. In those circumstances it is sufficient if the Conditions, read together with what appears on the face of the waybill, give the reader notification of the matters specified in the sub-paragraph. It does not matter whether the information appears in a single condition (or whereabouts that condition is to be found) or in several conditions. In the present case, as he points out, the HAWB purports, on its face, to contain a Notice ( "The Shipper's attention is drawn to the Notice concerning Carrier's limitation of liability" ) and the notice is to be found in the conditions on the back. In my judgment Warsaw- Hague requires there to be what is recognizable as "a notice", i.e. a discrete form of words warning the reader of the potential applicability of the Convention and its effect, namely to govern and limit liability. The expression "a notice" is not the same as "a statement", an "indication", "notification" or even "notice". It suggests something more defined than these. The words "a notice" are words of ordinary language and should be given the meaning that they would convey to the ordinary reader. I do not think that the ordinary reader of the HAWB would regard it as containing on the reverse the notice promised on its face, or as containing by a combination of the face and the reverse, something that he would describe as "a notice" and, when he had identified what it was, "the notice". Nor do I accept that the airway bill is to be treated as containing a notice to the effect required because (if such be the case) it is possible to spell out of the wording of some of the conditions of the contract notification of the relevant requirements. I am confirmed in my view by what seem to me to be a number of indications in the Convention to that effect. The obvious purpose of Articles 3(1)(c), 4(1)(c) and 8 (c) is to provide a warning (as is apparent from the French "un avis" ) to passengers and consignors that the Convention may apply, and govern and limit liability. A warning as to the potential effect of the Convention (which, if it applies, takes effect regardless of the Conditions of Carriage) is something different from the Conditions themselves, to which the Convention makes separate reference in Article 11 in this way: "The air waybill is prima facie evidence of the conclusion of the contract, of the receipt of the cargo, and of the conditions of carriage". Further, in the case of passenger and baggage tickets, the warning may be given to persons with very little grasp of the meaning, significance or effect of the conditions of carriage. For that reason I do not believe that the Court should incline to a construction that allows the notice to be subsumed into and only derived from careful study of several conditions. Consignors of cargo are more likely, of course, to be well aware of the limitations of liability imposed by the Warsaw Convention in its various forms. That may well be a substantial policy reason for not requiring an Article 8 (c) notice in their case, or not disentitling the carrier from relying on the Convention's limitations on liability if it is omitted in such cases. But that policy option was not adopted in The Hague, although it was in Montreal. Moreover, in view of the fact that the relevant wording is identical, it seems to me impossible to hold that it leads to different consequences according to whether or not it is applied to passenger tickets and baggage checks, on the one hand, or air waybills on the other. I do not accept Mr McLaren's suggestion that the adoption of a purposive construction might lead to a different result as between the two cases. Mr McLaren cited to me the case of Parker v Pan American Airways Inc 447 S. W.2d 731 in the Court of Civil Appeals of Texas, Fifth District, Dallas. In that case Pan Am were held to be entitled to rely on conditions on the back of Mrs Parker's ticket as constituting sufficient notice under the Convention. I do not find this case of assistance since it relates to Unamended Warsaw where the requirement is for the ticket to contain a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention, which was exactly what the Conditions in that case said. If there is a notice, is it to the required effect? If I am wrong on this, and the conditions, or some part of them, taken with the words on the face of the bill, are to be regarded as the notice called for under Article 8 (c) the next question is whether the provisions relied on satisfy the requirements of the sub-Article. The first matter of which the notice must give notification is that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable. As to that, it is apparent on the face of the air waybill that the carriage is to be from one country, the Philippines, to another, the United Kingdom. The provision in Condition 2(a) that carriage is subject to the rules relating to liability established by the Convention, unless such carriage is not "international carriage" as defined by the Convention, is, in my judgment, to the effect that the Warsaw Convention may be applicable. The face and the reverse of the air waybill, taken together, indicate that if goods are being carried from Manila to Glasgow (in which case the ultimate destination is a country other than the country of departure) Warsaw- Hague may apply. It is not necessary for the bill to set out the definition of "international carriage" or the identity of the High Contracting Parties. Such a conclusion is consistent with that of the Court of Appeal in Samuel Montagu . The second matter that requires to be notified is that Warsaw-Hague governs the liability of the carrier. Since clause 2 (a) states that the carriage is subject to the rules relating to liability in the Unamended Warsaw or Warsaw-Hague Conventions, it amounts to saying that those Conventions govern the liability of the carrier. The third matter to be included in the notice is that the Convention "in most cases" (in the English translation) limits the liability of carriers. As to that the first question is whether the notice must indicate that, in either a numerical majority of cases, or more than such a majority, the Convention limits liability, or rather, as Bax submit to be the case, the notice must indicate that the general principle of the Convention is that liability will be limited, except in special cases e.g. where a special declaration is made. It seems to me inherently unlikely that the Convention sought to ensure that the consignor, or the passenger, was told that the number of cases where the Convention effectively limited liability exceeded, by whatever margin, those that did not - a statement which could, at least in theory, be inaccurate, depending on the pattern of reliance on special declarations, the meaning of the word "most", and the incidence of cases in which the air waybill did not contain the required notice or to which Article 25 applied. It seems to me that what the notice was required to convey was that the way in which the Convention works is to establish a regime whereby limitation is the norm in the absence of exceptions. The English phrase "in most cases" does not fit entirely easily with that construction but the French phrase "en generalite" does; and it is the latter language that is to prevail. That leaves the question whether the words on the face, taken with the Conditions, do state that the Convention limits the liability of carriers. In considering whether they do it is not legitimate, in my view, to assume that the reader of the air waybill already knows that that is so. Unsurprisingly the Conditions of the HAWB are consistent with that being the position. But they do not, in fact, state that that is the Convention's effect. The words on the face of the bill incorporate into the contract of carriage the conditions of contract on the reverse and draw attention to "the notice" concerning carrier's limitation of liability. Nothing in those words indicates that the limitation is derived from the Convention rather than the conditions imposed by the carrier. On the reverse Condition 2(a) refers to the Convention rules relating to liability, but says nothing about limitation. Nor do Conditions 2(b) or 2(c). Condition 2(d) informs the consignor that where the Convention applies the shipper acknowledges that he has been given an opportunity to make a special declaration, and that, if the sum entered on the face of the bill exceeds $20 US per kilo, that sum is to be treated as the special declaration. Condition 4(c) then indicates that liability of the carrier shall not exceed $20 US per kilo unless there has been a declaration in which case liability shall not exceed the amount of the declared value. But the Conditions do not state that the Convention contains any limit on recovery. In the absence of further explanation the reference on the face of the air waybill to the " carrier's limitation of liability " means the limitation of liability imposed by the carrier under the conditions to which the contract of carriage is subject. Nothing on the reverse says anything about the limits imposed by the Convention, which are not the same as those contained in Condition 4 (c). The Conditions are entirely consistent with the Convention providing that, in cases to which it applies, it should be open to the consignor to make a special declaration of value, in which case any contractual limitation should only take effect to the extent that the value of the goods exceeds the declared value. In that case the Convention would not limit liability but expand it. I am conscious that this analysis is itself technical. It falls to be made because Bax have omitted to take the simple course of including in their air waybill a notice in the form recommended by IATA and on occasion used by themselves. They are, thus, driven to extract from the Conditions of Contract, which it is reasonable to suppose were intended to be no more than what they are described as being, a notice as to the effect of the Convention, which it seems unlikely that the draftsman thought that he was drafting. Further, as it seems to me, the context in which the question arises does not justify interpretative generosity. The notice required by the Convention should be clear and directly informative - a result that is not difficult to achieve. Mr McLaren further submitted that the conditions contained a notification that there was a limit of liability under the Warsaw Convention of about $20 US per kilo in the following manner. The notice on the face of the waybill showed that there was a regime by which the carrier's liability was limited. Condition 2 (a) indicated that the carriage was governed by Unamended Warsaw or Warsaw- Hague. Condition 2(b) showed that Unamended Warsaw or Warsaw- Hague prevailed over the Carrier's own terms. Conditions 2(d) and 4(c) taken together state that, if there is no value declared, then the limit of liability is $20 US per kg. If the carrier's limitation of liability was to have any application the Convention regime must be such as to impose on the carrier limits of liability at least as low as the contractual limitation – otherwise the higher limits in the Convention would prevent the contractual limits from ever coming into effect. So these clauses, read together, amount to notification that there is a limit of liability under Warsaw or Warsaw-Hague which is approximately as low as Bax's $20 US per kg contractual limit – Article 8(c) did not require the notice to specify what the financial limit of liability is. I do not accept this submission. First, as I have said, the notice on the face of the waybill seems to me, prima facie, to indicate that it is the carrier who has stipulated a limit of liability. Second, the proposition that "if the carrier's limitation of liability was to have any application the Warsaw-Hague's liability regime must be such as to impose on the carrier limits of liability at least as low as the contractual limitation" assumes that which the conditions do not state namely that Warsaw-Hague imposes limitations on liability. It is noticeable that Condition 2 (a) does not state – as it did in the Pan Am case - that the carriage was subject to the rules "and limitations " relating to liability in the Convention. Lastly Mr McLaren submitted that clause 2(d) impliedly stated that the $20 figure was a Convention limit (or thereabouts) as did the opening words of Condition 4 "Except as the Convention or other applicable law may otherwise require" when taken with Condition 4(c). I reject this submission. Neither of those provisions states, expressly or by obvious implication, that the Convention limits the liability of carriers. They are provisions understandably inserted on that assumption, but that is a different matter. I should add that the fact that Bax are driven to spell out the notice that they need from the Conditions in the way that they do, serves to confirm my conclusion on the first issue. I find it difficult to believe that the draftsman of the relevant Article intended that the passenger or consignor should discern a notice with the requisite effect from the conditions in such a recondite way. Accordingly, I answer the question posed by the preliminary issue: "Yes". BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII