M/s BHAGWANDAS B. RAMCHANDANI v. BRITISH AIRWAYS

A 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 B and 13.

53Copy pinpoint53. 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 C 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 D 21 is yet another equitable provision that protects 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.

54Copy pinpoint54. Rule 24 stipulates that any action for damages “can only be E 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, F 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 G 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 H

M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 583 AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

that the ‘questions of procedure shall be governed by the law of the court seized of the case.’

55Copy pinpoint55. 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.” C

56Copy pinpoint56. 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.

57Copy pinpoint57. 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.Rule30(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.

58Copy pinpoint58. 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.

59Copy pinpoint59. Sub-Rule (2) must therefore be interpreted harmoniously keeping in mind not only the content of Sub-Rule (1) but also the purpose H

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A 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 B 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.

60Copy pinpoint60. Having considered the matter in detail, we are of the opinion C 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.

61Copy pinpoint61. 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 D Bombay in WP No. 6647 of 2014 is accordingly dismissed. The parties shall bear their own cost.

62Copy pinpoint62. 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 E and Ms. Ritu Singh Mann for Respondent assisted by Shri Dheeraj K. Garg, Advocate and Shri Rajan K. Chourasia, AOR.

Ankit Gyan Appeal dismissed. (Assisted by : Rahul Rathi, LCRA) F