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ENCYCLOPAEDIA OF INTERNATIONAL AVIATION LAW
CASES AND MATERIALS
By PHILIP FORSANG NDIKUM, SERGE-DELORS NDIKUM
Trafford PublishingCopyright © 2013 Philip Forsang Ndikum
All rights reserved.
Treaty of Montreal United Airlines Inc v Sercel Australia Pty Ltd  NSWCA 24 (5 March 2012)
Last Updated: 14 March 2012
Court of Appeal New South Wales
Case Title: United Airlines Inc v Sercel Australia Pty Ltd
Medium Neutral Citation: NSWCA 24
Hearing Date(s): 1 March 2011 & 18 October 2011
Decision Date: 05 March 2012
Before: Allsop P at  Macfarlan JA at  Handley AJA at 
Decision: The Court orders:
1. Leave to appeal granted.
2. Applicant to file a Notice of Appeal within 14 days.
3. Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: WORKERS' COMPENSATION—passenger on board aircraft suffered injury during flight while landing in Texas—passenger employed by and in course of employment with respondent at time of injury—respondent made workers' compensation payments through insurer—whether respondent could recover payments from applicant pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(d).
CARRIAGE BY AIR—right of indemnity and contribution pursuant to Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Act"), s 37—whether two year time bar provision in Art 29 of Warsaw Convention and amending instruments ("Convention") made applicable in Pt IIIC of Act applicable—discussion of Art 17 and Art 24 of Convention—two year time bar not applicable to respondent's claim.
STATUTORY INTERPRETATION—consistency between Parts of statute—avoidance of unjust or capricious result—applicable principles in construing Australian Act derived from or based on international instruments.
PRIVATE INTERNATIONAL LAW—choice of laws—respondent not barred from bringing proceedings—right of indemnity and contribution created by New South Wales statute—Regie Nationale des Usines Renault SA v Zhang  HCA 10; 210 CLR 491 distinguished.
Legislation Cited: Acts Interpretation Act, s 15A
Carriage by Air Act 1932 (UK), Sch II
Carriage by Air Act 1935 (Cth), s 3, Sch II
Carriage by Air Act 1961 (UK), s 5(2)
Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 8, 9B, 9D, 9E, 9F, 11, 12, 13, 14, 21, 24, 25J, 25K,25L, 28, 34, 35, 36, 37, 38, 39, Sch 1, Sch 5
Constitution, ss 76(ii), 109
Convention for the Unification of Certain Rules for International
Carriage by Air done at Montreal on 28 May 1999, Arts 17, 18,19, 35
Convention for the Unification of Certain Rules Relating to
International Carriage by Air done at Warsaw on 12 October 1929, Arts 1, 3, 17, 20, 21, 22, 24, 29, 39(2)
District Court Act 1973 (NSW), s 127
Judiciary Act 1903 (Cth), ss 39(2), 79
Limitation Act 1963 (UK), s 4
Limitation Act 1969 (NSW), s 14(1)(d)
Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955 done at Montreal on 25 September 1975 Protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 done at The Hague on 28 September 1955, Art 29 Vienna Convention on the Law of Treaties (1969), Arts 31, 32 Warsaw Convention as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975, Arts 1, 3, 17, 18, 19, 20, 21, 22, 24, 29, 30A Workers' Compensation Act 1926 (NSW), s 64(b) Workers Compensation Act 1987 (NSW), ss 151Z(1)(d), 9AA
Cases Cited: Adan v Secretary of State for the Home Department EWCA Civ 1007;  1 WLR 1107
Adan v Secretary of State for the Home Department UKHL 15;  1 AC 293
Air France v StÃ© MÃ©diterranÃ©enne de Transit 1982 Revue FranÃ§aise de Droit AÃ©rien 214 (Cour de Cassation Nov 1981) Attorney-General v Arthur Ryan Automobiles Ltd 2 KB 16 Australian Solar Mesh Sales Pty Ltd v Anderson FCA 864; 101 FCR 1
Benjamin v British European Airways  USCA2 169; 572 F 2d 913 (1978 2nd CCA)
Chubb Insurance Co of Europe SA v Menlo Worldwide Forwarding Inc 634 F 3d 1023 (2011 9th CCA)
Cie d'Aviation Pakistan International Airline v Cie Air Inter 1981 Revue FranÃ§aise de Droit AÃ©rien 143
Connaught Laboratories Ltd v Air Canada (1978) 94 DLR 3rd 586
Data General Corp v Air Express International Co676 F Supp 538 (1988)
El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999)
Fejo v Northern Territory  HCA 58; 195 CLR 96
Felton v Mulligan  HCA 39; 124 CLR 367
Fothergill v Monarch Airlines Ltd  UKHL 6; AC 251
France Handling v Sabena 1982 143 Revue FranÃ§aise de Droit AÃ©rien 345
Fuller v K & J Trucks Coffs Harbour Pty Ltd  NSWCA 88; 67 NSWLR 516
Government Insurance Office of NSW v C E McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492
Gulf Air Company GSC v Fattouh  NSWCA 225; 251 ALR 183
Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498
In re Mexico City Air Crash of October 31 USCA9 859; , 1979 708 F 2d 400 (1979 9th CCA)
Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council  NSWCA 59; 230 FLR 336
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
L B Smith Inc v Circle Air Freight Corporation 488 NYS 2d 547 (1985)
Magnus Electronics Inc v Royal Bank of Canada 611 F Supp 436 (1985)
Mitchell Shackleton & Co Ltd v Air Express International Inc 704 F Supp 524 (1989 SDNY)
Moorgate Tobacco Co Ltd v Philip Morris Ltd  HCA 32; 145 CLR 457
Motorola Inc v MSAS Cargo International Inc 42 F Supp 2d 952 (ND Cal 1998)
NBGM v Minister for Immigration and Multicultural Affairs  HCA 54; 231 CLR 52
Oriental Fire and General Insurance Co Ltd v Citizens National Bank of Decatur 581 NE 2d 49 (1991)
Povey v Qantas Airways Ltd  HCA 33; 223 CLR 189
QBE Workers Compensation (NSW) Ltd v Dolan NSWCA 458; 62 NSWLR 42
R v Commonwealth Court of Conciliation & Arbitration; Ex parte
Barrett  HCA 50; 70 CLR 141
Re McJannet; Ex parte Australian Workers' Union of Employees
Queensland (No 2)  HCA 40; 189 CLR 654
Regie Nationale des Usines Renault SA v Zhang HCA 10; 210 CLR 491
Royal Insurance Company v Emery Air Freight
Corporation 834 F Supp 633 (SDNY 1993)
Sidhu v British Airways Plc  UKHL 5;  1 AC 430
Smith's Dock Company v John Readhead & Sons 2 KB 323
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs  FCA 389;(1991) 31 FCR 100
South Eastern Sydney Area Health Service v Gadiry NSWCA 161; 54 NSWLR 495
Split End Ltd v Dimerco Express (Phils) Inc 19 Avi 18,364 (1986 DCNY)
Ste Roissy Fret v Ste Scandinavian Airlines Systems France 1984 38
Revue FranÃ§aise de Droit AÃ©rien 442 (Cour de Cassation)
The Paquete Habana  USSC 8; 175 US 677(1900)
Tickle Industries Pty Ltd v Hann  HCA 5; 130 CLR 321
Tooth & Co Ltd v Tillyer  HCA 49; 95 CLR 605
Turner v George Weston Foods Ltd trading as Tip Top Bakeries (Newcastle); Turner v George Weston Foods Ltd  NSWCA 67
Victorian WorkCover Authority v Esso Australia Ltd HCA 53; 207 CLR 520
Watson v The Council of the City of Newcastle HCA 6; 106 CLR 426
Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207
Workcover Queensland v Amaca Pty Ltd  HCA 34; 241 CLR 420
Workers' Compensation Board of Queensland v The Nominal
Defendant (Qld)  1 Qd R 356
Texts Cited: G N Calkins "The Cause of Action under the Warsaw Convention" (1959) 26 Journal of Air Law and Commerce 217 and 323
R Gardiner Treaty Interpretation (Oxford 2008)
A F Lowenfeld and A I Mendelsohn "The United States and the Warsaw Convention" (1967) 80 Harvard Law Review 497
R H Mankiewicz The Liability Regime of the International Air Carrier (Kluwer 1981)
Martin et al Shawcross and Beaumont Air Law (4th Ed Butterworths 1977)
McClean et al Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis)
The Oxford-Hachette French Dictionary (1984)
Category: Principal judgment
Parties: United Airlines Incorporated (Applicant)
Sercel Australia Pty Limited (Respondent) Encyclopaedia of International Aviation Law
- Counsel: R S McIlwaine SC (Applicant) M J Jenkins (Respondent)
- Solicitors: Blackstone Waterhouse Lawyers (Applicant) Moray & Agnew Lawyers (Respondent)
File number(s): 2010/55277
Decision Under Appeal
- Court / Tribunal:
- Before: Robison DCJ
- Date of Decision: 01 March 2010
- Citation: - Court File Number(s)855 of 2009
ALLSOP P: On 8 September 2005, Mr Sandeep Arora, an employee of the respondent ("Sercel"), was a passenger on United Airlines flight UA716 from Sydney to Houston. He was on the business of Sercel. As the plane was braking after landing, he was hit on the head by a hard plastic or metal object that detached from the interior of the aircraft. Mr Arora also suffered neck and knee injury which he blamed on the event in question. This evidence was accepted by the primary judge. No issue on appeal was taken with the fact of injury or with the amount awarded.
Sercel made workers' compensation payments through its insurer. Sercel now seeks to recover those payments under the Workers Compensation Act 1987 (NSW) (the "1987 Act"), s 151Z(1), which relevantly is in the following terms:
"(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:
(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)"
No action was brought by Mr Arora against the applicant ("United"). United submitted below and on appeal that Sercel's claim for indemnity is out of time by reference to the governing statute, theCivil Aviation (Carriers' Liability) Act 1959 (Cth) (the "Act"). The primary judge, Robison DCJ, rejected that contention. In my view, he was correct to do so for the following reasons. The action was for a sum under $100,000. Leave is required: District Court Act 1973 (NSW), s 127(2)(c)(ii). The matter is one of importance. Leave should be granted.
The governing legislation
There was no issue but that the flight in question was governed by theConvention for the Unification of Certain Rules Relating to International Carriage by Air done at Warsaw on 12 October 1929 (the "Warsaw Convention") as amended by the Protocol that was opened for signature at the Hague on 28 September 1955 (the "Hague Protocol") and by the Protocol done at Montreal on 25 September 1975 and called "Montreal Protocol No 4 to amend the [Warsaw Convention] as amended by the [Hague Protocol]" (the "Montreal Protocol"). The Warsaw Convention, the Hague Protocol and the Montreal Protocol are to be read and interpreted together as one single instrument that is set out as Schedule 5 to the Act. I will refer to the combined convention hereafter simply as "the Convention" and I will refer to the Warsaw Convention as amended by the Hague Protocol as the "Warsaw/Hague Convention". Part IIIC of the Act (ss 25J-25N) concerns carriage to which the Convention applies. In due course, it will be necessary to discuss provisions in other Parts of the Act; for the present, it is of assistance to set out relevant provisions of Pt IIIC and of the Convention.
Excerpted from ENCYCLOPAEDIA OF INTERNATIONAL AVIATION LAW by PHILIP FORSANG NDIKUM, SERGE-DELORS NDIKUM. Copyright © 2013 Philip Forsang Ndikum. Excerpted by permission of Trafford Publishing.
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