The court considered the circumstances in which the court would apply the misconduct exceptions under the Convention: ‘The starting point when considering whether in any given circumstances the acts or omissions of a person entrusted with goods of another amounted to wilful misconduct is an enquiry about the conduct ordinarily to be expected in the particular circumstances.
The next step is to ask whether the acts or omissions of the defendant were so far outside the range of such conduct as to be properly regarded as ‘misconduct’. (An important circumstance would be a deliberate disregard of express instructions clearly given and understood.)
It is next necessary to consider whether the misconduct was wilful.
What does not amount to wilful misconduct? Wilful misconduct is far beyond negligence, even gross or culpable negligence.
What does amount to wilful misconduct? A person wilfully misconducts himself if he knows and appreciates that it is misconduct on his part in the circumstances to do or to fail or omit to do something and yet (a) intentionally does or fails or omits to do it or (b) persists in the act, failure or omission regardless of the consequences or (c) acts with reckless carelessness, not caring what the results of his carelessness may be. (A person acts with reckless carelessness if, aware of a risk that goods in his care may be lost or damaged, he deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.)
The final step is to consider whether the wilful misconduct (if established) caused the loss of or damage to the goods.’ and
‘Wilful misconduct in such a special condition means misconduct to which the will is a party as contradistinguished from accident and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persist in the act, failure or omission regardless of the consequences.’ Per Johnson J. in Graham v Belfast and Northern Counties Railway [1901] 2.I.R. 13, which was cited with approval by Lord Alverstone in Forder v GWR [1905] 2 KB 532, who added ‘or acts with reckless carelessness, not caring what the results of his carelessness may be.
Wilful misconduct, to put it most shortly, as it has often been put in the past, is misconduct to which the will is a party, and it is something which is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. I think the first thing for you to remember is that the will must be party to the misconduct, and not merely a party to the conduct of which complaint is made. Let us take an example: if the pilot of an aircraft knowingly does something which subsequently a jury find amounted to misconduct, those facts alone do not show that he is guilty of wilful misconduct. To establish wilful misconduct on the part of this imaginary pilot it must be shown not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that when he did it he was aware that it was a wrongful act – that is to say, he was aware that he was committing misconduct.’per Barry J. in Horabin v BOAC [1952] 2 Lloyd’s Law Reports 450 at page 459.
‘If I summarise the principle in my own words, it would be to say that for wilful misconduct to be proved there must be either (one) an intention to do something which the actor knows to be wrong or (two) a reckless act in the sense that the actor is aware that loss may result from his act and yet does not care whether loss will result or not or, to use Mr Justice Barry’s words in Horabin’s case, ‘he took a risk which he knew he ought not to take’ per Longmore J. in National Semiconductors v UPS [1996] 2 Lloyd’s Reports 212 at 214.
Further, a person could be said to act with reckless carelessness towards goods in his care if, aware of a risk that they may be lost or damaged, he nonetheless deliberately goes ahead and takes the risk when it is unreasonable in all the circumstances for him to do so.’ per Beldam LJ. in Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] 2 Lloyd’s Reports 369, at page 374.
Judges:
Cresswell J
Citations:
[1997] 2 Lloyd’s Rep 39
Statutes:
Warsaw Convention Article 25(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Micro Anvika Ltd and others v TNT Express Worldwide (Euro Hub) Nv and others ComC 20-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 13 May 2022; Ref: scu.220775
