In a recent case, the New South Wales Court of Appeal considered the jurisdiction of Australian courts for claims arising from international round trip flights that include Australia.
Background
In the case of Gulf Air Company GSC operating as 'Gulf Air' v Fattouh [2008] NSWCA 225, the Court allowed the appeal and overturned a first instance decision in favour of the claimant, Mr Fattouh. Mr Fattouh claimed that while he was standing in the aisle during flight another passenger punched him, causing injury. The aircraft was then two hours flying time from Sydney on the first leg of a round trip originating in Beirut.
The round trip ticket purchased by Mr Fattouh expressly stated that the contract of carriage was from Beirut to Bahrain to Sydney to Bahrain to Beirut, and that Beirut was the 'origin' and 'destination'. The destination was relevant as if it was determined that Sydney was the place of destination under the Warsaw Convention as amended by Montreal No. 4 Convention, then jurisdiction vested in the courts of New South Wales. However, if the destination was determined as Beirut, then the New South Wales courts did not have jurisdiction for the claim.
It should be noted that although the ticket was for a round trip, Mr Fattouh had a break of some three months in Sydney.
Both parties accepted that jurisdiction would only be conferred upon the courts of New South Wales if Sydney was the place of destination according to the contract between Mr Fattouh and Gulf Air.
Findings
At first instance Mr Fattouh argued, and the trial judge accepted, that the contract was tied to the boarding of the flight (ie each flight leg) and consequently the destination, in relation to the contract in question, was Sydney. This argument was based on the reasoning that the contract executed on boarding was Beirut to Sydney and also because there were two contracts - Beirut to Bahrain and then Bahrain to Sydney.
In the Court of Appeal, Justice Allsop (with whom Justices Hodgson and Campbell agreed) found that the destination under the contract of carriage was Beirut, and consequently the New South Wales courts did not have jurisdiction to hear the claim.
In doing so, Justice Allsop considered that the specification of Beirut as the destination on the ticket constituted prima facie evidence that Beirut was the agreed place of destination. His Honour considered Gulf Air's general terms and conditions of carriage and concluded that they did not rebut or vary the prima facie contractual effect of the ticket that the agreed place of destination was Beirut.
Justice Allsop considered Article 28 of the Montreal Convention No. 4 which provides as follows:
- 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 had been made or before the court having jurisdiction at the place of destination.
In interpreting the 'place of destination', Justice Allsop noted that the agreement of the parties to the contract of carriage is central to the identification of the places of departure and destination.
The ticket had stated that the return trip to Beirut would take place in approximately three months from the time of arrival in Sydney.
Justice Allsop reasoned that:
'Once one appreciates that the enquiry is as to what is the contractual place of destination, not as to what is, or would be, a place that a traveller might call his or her destination, and not by reference to the individual subjective intention or purpose of the passenger, the importance of the break in the carriage ... or in the contractual "operation" .... and the importance of the length of such a break can be seen to diminish.'
Justice Allsop concluded that Gulf Air's conditions provided for substantial legal obligations on the part of Gulf Air and that the acceptance of any offer in the ticket by collecting the ticket or boarding the plane could be seen to crystallise a contract of carriage on the four sectors identified in the ticket. In doing so, his Honour distinguished the Australian High Court decision in MacRobertson Miller Airline Services v State Commissioner of Taxation (WA) (1975) 133 CLR 125, on the basis that the facts of that case did not involve a contract which imposed substantial legal obligations on the carrier, but was a case concerned with taxation issues.
Conclusion
The case illustrates that courts will look to the terms of the ticket issued as prima facie evidence of the intention of the parties to a contract of carriage (to which the Montreal Convention No. 4 applies). Such prima facie evidence will, in some circumstances, be capable of rebuttal.
The Court also reflected the importance of international uniformity in the interpretation of international conventions and considered decisions in foreign jurisdictions in relation to the meaning of the 'place of destination'.
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