CARRIAGE BY AIR — Warsaw Convention — Wilful Misconduct — Effect on Limitation of Liability
Ratio Decidendi
Per Rhodes-Vivour, JSC, in Cameroon Airlines v. Otutuizu (2011) NLC-123-217-2004(SC) at p. 14; Paras A—C:
"By the provision of Article 25 of the convention a carrier (the appellant) loses its entitlement to rely on the limit set on its liability by Article 22 (1) where a briefcase containing $20,000 and valuables of the respondent is taken away (and never returned) by South African Immigration officials as a result of the wilful act by the appellant, in flying the respondent to South Africa, when it knew that the respondent did not have a South African transit visa. When the carrier commits wilful misconduct, the respondent is entitled to more damages than the limit set in Article 22 of the Convention."
Explanation / Scope
This principle establishes that under Article 25 of the Warsaw Convention, a carrier loses the right to rely on the liability limits in Article 22 where it commits wilful misconduct, entitling the claimant to more damages. The principle applies where wilful misconduct is alleged. It ensures that carriers are not protected where they act wilfully. The principle reflects the exception to limitation. It holds carriers accountable. The court must find wilful misconduct. The principle provides guidance on wilful misconduct.