M/S BHAGWANDAS B. RAMCHANDANI versus BRITISH AIRWAYS on 29 July 2022

1. It is to be noticed that matters concerning theinternational carriage of persons, baggage, or cargo performedby aircraft for reward are the subject matter of InternationalDConventions. These are incorporated into our laws through theSchedules to the Air Act, 1972. Section 3 of the Air Act, 1972incorporates the Warsaw Convention, 1929 into the First Scheduleand specifically provides that it shall have the status of law inIndia. Section 4 incorporates the Hague Protocol dated 28.09.1955and provisions it in the Second Schedule and gives it the statusEof law in India. Similarly, Section 4A brought into force in 2009for giving effect to the Montréal Convention, 1999 incorporatesit in the Third Schedule to the Act and gives it the status of law inIndia. [Para 10][552-F-G; 553-A-B]

2. The procedural law governing the institution andFadjudication of civil suits in India includes the Civil ProcedureCode,1908 as well as the Limitation Act, 1963. The LimitationAct is a branch of adjectival law, and applies to all proceedingswhich it governs from the date of its enactment. There is howevera well-established principle, which states that when the right itselfis extinguished, the provisions relating to limitation have noGapplication. A direct example where the right itself isextinguished, can be evidenced in Section 11 as well as Section27 of the Limitation Act, 1963. Section 11 deals with suits filed inIndia with respect to contracts entered in foreign countries.Following the Principle of lex fori, the Section provides that rulesHof limitation provided in a foreign jurisdiction are not applicable.

However, the exception to this Rule is provided in Section 11(2)(a), when the Contract i.e., the right itself expires. Similarly,Section 27 also recognizes the principle of extinguishment of Rightto Property being an exception to the applicability of theLimitation Act, 1963. [Para 12][554-B-E]

3. In view of the well-established position of law relating toLex Fori in International Law, with the equally well-establishedexception arising out of the extinguishment of the right or theliability itself, we will now examine the position in India as perRule 30 in the Second Schedule of the Air Act, 1972 relating toliability of the carrier. [Para 14][558-A-C]

4. While Rule 29 speaks about judicial remedy for initiatingan action for damages, Rule 30 uses the expression right todamages. It is in the context of right as against a remedy that thepurpose, object and meaning of Rule 30 is to be understood.Further, Rule 30 also uses the expression “extinguishment” asagainst “bar”, which is generally used in the context of a remedy.Therefore, the extinguishment is of right, that is, the right todamages is the subject matter of Sub-Rule (1) of Rule 30. Theexpressions, ‘right’ and ‘extinguished’ employed by theConvention as adopted and incorporated by the Parliament inRule 30 of the Second Schedule clearly establishes the intentionof the law-giver that the right to damages would not subsist afterthe expiry of the period mentioned therein. [Para 15.1][558-A-C; 558-D-E]

5. Once the right to damages is extinguished upon theexpiry of two years reckoned from the three alternative datesmentioned in the Rule itself, nothing would remain forenforcement. Section 3 of the Limitation Act only bars the remedy,but when the right itself is extinguished, provisions of theLimitation Act have no application. For this reason, in The Eastand West Steamship Co., this Court held that once the right ofliability is extinguished under the clause, there is no scope ofacknowledging the liability thereafter. [Para 15.2][559-C-D]

6. In its plain and simple language, Sub-Rule (2) seems toadopt the applicability of the Limitation Act, 1963 as Courts in A

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AIndia exercise jurisdiction. ‘The method of calculating the periodspecified in Sub-rule (2) naturally relates to the period’ specifiedin Sub-rule (1). Sub-Rule (1) identifies and fixes two incidents.The period of limitation and the date of commencement of thesaid period (the three specified dates). Therefore, when theperiod of limitation, as well as the date of commencement of theBsaid period, are already given, the method of calculation of theperiod of limitation contemplated under Sub-Rule (2) must relateto some other factor. However, without specifying the variable towhich the method of calculating the period, is to apply, Sub-rule(2) merely provides that it “shall be determined by the lawCapplicable to the Court seized of the case.” This has causeduncertainty about the intent of the lawmakers, be it theConvention or Rule 30 of the Second Schedule of the Act. [Para16.2][559-F-H; 560-A-B]

7. Further, the expression in Rule 30(2) calculating theDperiod of limitation is synonymous to the expression computationof period of limitation provided in Part-III of the Limitation Act,1963. Part-III which relates to the exclusion of certain timeperiods is to sub-serve a just cause based on public policy whichrecognizes human vulnerabilities. Broadly, these periods relateto (i) the date from which the period is to be reckoned (SectionE12); (ii) the time taken for seeking to contest as a pauper, (Section13); (iii) the bona fide period involved in the perusal of a remedyingthe wrong Court (Section 14); (iv) fraud (Section 17); (v)acknowledgment of debt (Section 18); (vi) admitted payments onaccount of debt (Section 19); (vii) continuous breach etc. TheseFare the periods that can be excluded while computing the periodof limitation under the Limitation Act, 1963. [Para 16.3][560-B-D]

8. The rival submissions surface due to an apparent conflictbetween Sub- Rule (1) and Sub-Rule (2) of Rule 30 of the SecondGSchedule. While Sub- Rule (1) extinguishes the right itself uponthe expiry of the period of two years, after which nothing wouldremain for enforcement, Sub-Rule (2) seems to suggest that theCourt seized of the case can apply the law of limitation applicableto its proceedings and entertain the suit of the proceedings. [Para18][561-B-C]H

9. In view of the uncertainty in the language of sub-article(2) of Article 29, as in the case of Sub-Rule (2) of Rule 30 forIndia, courts of law across jurisdictions were called upon toconsider the rival submissions on the construct of the saidprovision. Learned counsels appearing for both the parties haveplaced before us the decisions of foreign courts that have ruledupon Article 29 and interpreted the said provision, more or lessconsistently taking a view that the domestic laws of limitationwill have no bearing on the period of two years. [Para 29][569-C-D]

10. The High Courts across the country have also taken asimilar view that the Limitation Act, 1963 will be excluded fromoperation for a claim under the Air Act. The High Courts havereasoned that the Air Act is a special statute and would thus prevailover the Limitation Act, 1963, which is a general statute. TheHigh Court of Delhi in Air India Ltd. v. Tej Shoe Exports P. Ltd., Sailesh Textile Industries v. British Airways & Anr. , IndianAirlines v. Angelique International Ltd. & Anr., Ethopian Airlinesv. Federal Chemical Works Ltd., the High Court of Madras inM/s M.R.F Ltd. v. Singapore Airlines and Air India, BombayAirport v. Asia Tanning Co., and the High Court of Bombay, inthe judgment impugned before us, have all taken this view. [Para40][576-E-G]

11. In the ultimate analysis, keeping in view the legislativehistory of the Convention and in view of the consistentinterpretation of Article 29 of the Convention adopted in differentjurisdictions, for the purpose of uniformity and also to subservethe purpose and object of the Convention, we are of the viewthat Rule 30 (2) does not enable applicability of exclusion ofperiods for the purpose of reckoning the period of two years.[Para 43][577-G-H]

Whether the Air Act, 1972, particularly Rule 30 of the SecondSchedule expressly excludes the applicability of the Limitation Act,1963?

12. While dealing with Issue No.1, we have held that theright to damages itself is extinguished after the expiry of theperiod of two years and therefore the provisions of the Limitation A

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AAct have no application as there is no right subsisting forenforcement. In this context we have referred to Section 3 of theLimitation Act which merely bars the remedy and not the rightitself, but when the statute extinguishes the right itself theposition is very different. We will however consider the presentargument of appellant as an alternative plea and proceed forthwithBto deal with the same. [Para 45][578-E-F]

13. Where a period of Limitation is prescribed in a speciallaw, by virtue of Section 29 of the Limitation Act, such period willapply as if it was provided in the Schedule of the Limitation Act.Consequently, the provisions of Sections 4 to 24 will apply forCthe purpose of computation of period of limitation. This provisionis subject to a bright exception that the Limitation Act will notapply if it is “expressly excluded” by the Special Act. [Para46][578-F-H]

14. The Air Act, 1972 is an Act to give effect to variousDInternational Conventions for the unification of certain Articlesrelating to international carriage by air. The InternationalConventions incorporated in the Act are the (i) WarsawConvention, 1929; (ii) The Warsaw Convention, 1929 as amendedby the Hague Protocol on 28.09.1955 and (iii) the MontréalEConvention, 1999. Section 3 of the Act incorporates the WarsawConvention into the Act as the First Schedule and specificallyprovides it the status of law in India. Section 4 incorporates theHague Protocol and provisions it in The Second Schedule. Section4A for giving effect to Montréal convention, provides The ThirdSchedule to the Act and specifically provides the status of law toFthese provisions. [Paras 50 & 51][581-B, E-F]

15. The Warsaw Convention as amended by the HagueProtocol is a complete code within itself for all questions relatingto carriage by air by international carriages. Rule 1(1) providesthat the Hague Protocol shall apply to “all international carriageGof persons, baggage or cargo performed by aircraft for reward”.Rule 2 provides that the Convention will apply to carriageperformed by the State or by legally constituted public bodies.Chapter II of the Convention (Rules 3 to 16) is entitled“Documents of Carriage”. Rule 3 relates to the documents that H

a carriage of passengers must deliver. Rule 4 prescribes amechanism for baggage check. Rule 5 to 11 relates to the airwaybill in cases of cargo carriages. Rule 12 relates to the right ofthe consignor to dispose of the goods in a manner that is notprejudicial to the carrier. Rule 13 pertains to the rights of theconsignee upon the arrival of the goods. Rule 13(3) providesthat where there is a loss of goods, the consignee shall be entitledto enforce the rights which ‘flow from the contract of carriage’.Rule 14 provides for the consequences of non- compliance ofRule 12 and 13. [Para 52][581-F-H; 582-A-B]

16. The Chapter with which we are presently concernedwith is Chapter III which is titled ‘Liability of the Carrier’. Rule17 provides for the liability of a carrier for damages in the eventof death or wounding or other injuries caused to a passengerwhile onboard the aircraft. Rule 18 envisages the liability of acarrier in the event of destruction, loss, damage etc. of cargo.Similarly, Rule 19 concerns the liability of a carrier upon delay inthe carriage of passengers, baggage or cargo. Rule 20 providesfor an equitable exemption to the carrier if he proves that he hadtaken all necessary measures to negate the delay or damage.Rule 21 is yet another equitable provision that protects thecarrier in cases of contributory negligence. Rule 22 specifies theminimum liability of the carrier. Rule 23 nullifies all limits whichare lower than those provided in Rule 22. [Para 53][582-B-D]

17. The Convention certainly incorporated two variablesin the context of reckoning the period specified in Rule 30 (1) oflimitation. The first event relates to the time, which is a fixedperiod of two years. The second event relates to thecommencement of cause of action which has been specified asany of the three events being (i) arrival at the destination; or (ii)date on which the aircraft ought to have arrived; or (iii) the dateon which the carriage stopped. Now, the only event that remainsis the date on which the action for damages is initiated as thiswould depend upon the law of the Court seized of the case. Rule30(2) specifically provides that “the method of calculating theperiod will be determined by the law of the Court seized of thecase.” This should necessarily follow for the reason that the AB

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Aperiod of two years for enforcing the right would be extinguishedif an action is not brought within the said period. [Para 57][583-D-F]

18. This Court also note that giving effect to the meaningof the words the ‘law of the court seized of the case’ would leadBto an anomalous situation where the law of every country wouldbe incorporated into the Convention, thereby defeating thepurpose of an International Convention which is to bring aboutuniformity across the globe in the laws applicable to carriage byair. Having considered the matter in detail, this Court is of theopinion that Rule 30 of the Carriage by Air Act 1972, expresslyCexcludes the applicability of the Limitation Act, 1963. Issue No.2is answered accordingly. [Para 58 & 60][583-F-G; 584-C]

Sailesh Textile Industries v. British Airways & Anr.2003SCC Online Del 318;Indian Airlines v. AngeliqueInternational Ltd.& Anr.2014 SCC Online Del 6825;DEthopian Airlines v. Federal Chemical Works Ltd2004SCC Online Del 862Air India, Bombay Airport v. AsiaTanning Co.2002 SCC Online Mad 802 – approved.

Punjab National Bank and others v. Surendra PrasadSinha1993 Supp (1) SCC 499 : [1992] 2 SCR 528;EHukumdev Narain Yadav v. Lalit Narain Mishra(1974)2 SCC 133 : [1974] 3 SCR 31; Shanmugam v.Commissioner for Registration[1962] 2 All E.R. 609 –relied on.

M.R.F. Ltd. v. M/s Singapore Airlines Ltd.2014 SCCFOnline Mad 247;M/s Air India Bombay Airport andAnother v. M/s Asia Tanning Co. and Anr.2002 SCCOnline Mad 802;The Shipping Corporation of IndiaLtd., Bombay and Anr. v. Union of India 2004 SCCOnline Mad 489;The East and West SteamshipGCompany, Georgetown, Madras v. S.K. RamalingamChettiar AIR 1960 SC 1058 : [1960] 3 SCR 820; AirIndia Ltd. v. Tej Shoe Exporters P. Ltd. and Anr.2013SCC Online Del 3749;Gulf Air Company v. NaharSpinning Mills Ltd. and Others 1999 SCC Online P&H915; Khadi Gram Udyog Trust v. Ram ChandrajiHVirajman Mandir(1978) 1 SCC 44 : [1978] 2 SCR

249;Needle Industries (India) Ltd. and Anr. v. NeedleIndustries Newey (India) Holding Ltd. and Ors (1981)3 SCC 333 : [1981] 3 SCR 698; National AviationCompany of India Ltd. v. Jatnadevi Tejraj Jain2011SCC Online Guj 7601; State of Kerelaand Ors. v. V.R.Kalliyanikutty and Anr.(1999) 3 SCC 657 : [1999]2 SCR 372;Prem Singh and Ors. v. Birbal and Ors.(2006) 5 SCC 353: [2006] 1 Suppl. SCR 692– referredto.

United Kingdom in Laroche v. Spirit of Adventure (UK)Ltd.(2009) EWCA Civ 12;Fishman v. Delta Airlines938 F. Supp. 228 (1996);Sidhu v. British Airways[1997] 1 All ER 193;Philips v. Air New Zealand(2002)EWHC 800;Fishman v. Delta Airlines 82 A.D. 2d 696;Kahn v. Trans World Airlines(1981) 443 NYS 2d 79;Bhatia v. Malaysian Airline System Berhad(2018) FCA1471;Rukmaboye v. Lulloobhoy Motichand(1935) 5HIA 234;RM. AR. AR. RM. AR. Ramanathan Chkttiarand others v. K.M.CL.M. Somasundaram Chettiar andOrs.(1964) 77 LW 399;R v. Secretary of State for theHome Department exparte Adan, (1999) 4 All ER 774.p. 785 (CA);R. (on the application of Mullen) v.Secretary of State for the Home Department(2004) 1All ER 65;Fothergill v. Monarch Airlines(1980) 2 AllER 696;Morris v. KLM Royal Dutch Airlines[2001] 3WLR 351; Zicherman v. Korean Air Lines Co. Ltd. 516US 217, (1996),EI AI Israel Airlines Ltd. V. T.Y. Tseng525 U.S. 155 (1999);Narayanan v. British Airways 2014U.S. App. LEXIS 5173 : 747 F.3d 1125;Lorans v. AirFrance(1977) 31 RFDA 268Joseph v. Syrian ArabAirlines 88 F.R.D. 530 (S.D.N.Y. 1980); Flanagan v.McDonnell Douglas Corp 428 F. Supp. 770 (C.D. Calf.1977) – referred to.

Case Law Reference

[1960] 3 SCR 820[1992] 2 SCR 528

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CIVIL APPELLATE JURISDICTION : Civil Appeal No.4978of 2022.

From the Judgment and Order dated 02.02.2018 of the High Courtof Judicature at Bombay in Writ Petition No.6647 of 2014.

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Vinay Navare, Sr. Adv., Pravartak Pathak, Ms. Gwen Karthika,Ms. Abha R. Sharma, Advs. for the Appellant.

Ms. Ritu Singh Mann, Dheeraj K. Garg, Rajan K. Chourasia,Advs. for the Respondent.

The Judgment of the Court was delivered byD

PAMIDIGHANTAM SRI NARASIMHA, J.

1. Leave granted.

2.1 Carriage by Air Act, 1972, incorporates international air trafficconventions of Warsaw, 1929, Hague Protocol, 1955, and MontréalEConvention, 1999 in the First, Second, and the Third Schedules of theAct. Rule 30 of the Second Schedule, which incorporates the HagueProtocol, provides that the right to damages will be extinguished if anaction is not brought within a period of two years from the dates mentionedin the Rule. Sub-rule (2) of Rule 30 provides that the method of calculatingthe period of limitation shall be determined by the law of the Court seizedFof the matter. As Limitation Act, 1963 is the law applicable to the Courtsin India, it is contended on behalf of the consumers of the Airlines thatthe exclusion of periods of limitation provided in the Limitation Act shallapply for computation of the period of two years mentioned in Rule 30(1).

G2.2 Two substantial questions of law have arisen for ourconsideration. The first relates to the applicability of the Limitation Actwhen the right itself is extinguished, as against a barring of remedy, asin the case of Section 3 of Limitation Act. The second question is whetherthe provisions of the Carriage by Air Act, 1972 expressly exclude theLimitation Act, 1963 as provided in Section 29.H

2.3 On the first question, we have resolved the apparent conflictbetween Sub-rule (1) and Sub-rule (2) of Rule 30 by referring to thelegislative history of the conventions as provided in the Vienna Conventionon the Law of Treaties, 1969. The travaux preparatoires leading to theformation of the Convention establishes that the Convention sought toexclude any interruption in the period of two years specified in the Article.We have also followed the well-recognized principle that whileinterpreting municipal laws giving effect to International Conventions,Courts must endeavor to maintain uniformity in the interpretation in orderto sub-serve the very purpose of the Conventions. Having examined thejudgments of various jurisdictions, we are satisfied that they are inconsonance with the interpretation that we have adopted in construingSub-rule (2) of Rule 30. Sub-rule (2) in our opinion does not derogatefrom the intent of Sub-rule (1) excluding the applicability of the LimitationAct but merely empowers the Court to determine the period of twoyears.

2.4 On the second question, after examining the provisions of theCarriage by Air Act, 1972, we have held that Rule 30 expressly excludesthe Limitation Act as provided in Section 29.

Facts and Proceedings:

3. The Appellant is a sole proprietary concern engaged in thebusiness of imports and exports. The Appellant sent a cargo containingfruits and vegetables from Mumbai to Canada via London by employingservices of British Airways[1] on 04.01.2010. However, on 06.01.2010due to bad weather conditions in London the flight could not depart toCanada, as a result the fruits and vegetables were damaged and wereconsequently destroyed. The Appellant lodged a claim for ` 1,70,221.56/- with the Respondent. On 30.06.2010, the Appellant once again sent asimilar cargo containing fruits and vegetables from Mumbai to Canada.Yet again, the cargo could not be sent due to packaging and other issuesand, as a consequence, the cargo had to be destroyed. The Appellantraised a claim dated 20.07.2010 for ` 4,27,922/-. Acknowledging thereceipt of the notice, the Respondent sent a mail on 02.11.2010 offeringto settle the matter at 50% of the claim amount.

4. It is in the above-referred background that the Appellantinstituted a suit being OS No. 5164/2012 on 15.09.2012 before the City 1 hereinafter referred to as the ‘Respondent’.

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ACivil Court, Mumbai for recovery of the amount of ` 9,17,642.56/-, withinterest at the rate of 21% per annum[2]. The Respondent filed writtenstatements stating inter alia that the suit is barred by limitation.

Before the Trial Court:

5. The Trial Court framed a preliminary issue on the ground ofBlimitation and by its judgment dated 05.02.2014 held that the suit is notbarred by limitation as the period prescribed in Rule 30 of the SecondSchedule to the Carriage by Air Act, 1972[3] could be calculated from28.10.2010, that is, the date when the Respondent had acknowledged aproposed settlement of the claim at 50% of the demand. For this purpose,Cthe Trial Court relied on Section 18 of the Limitation Act by taking it forgranted that the said Act is applicable to proceedings under the Air Act.

6. Aggrieved by the decision of the Trial Court on the preliminaryissue, Appellant filed a Writ Petition No. 6647/2014 before the HighCourt of Bombay. By the judgment impugned herein, the High CourtDallowed the Writ Petition holding that the suit is barred by limitation. Thereasoning adopted by the High Court is that the Air Act, 1972 being alater and a special statute, will have an overriding effect over the earlierand the general statute, being the Limitation Act, 1963.

Before the High Court:

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E7.1 The High Court relied on the decisions of the High Court ofMadras in M.R.F. Ltd. v. M/s Singapore Airlines Ltd.[4], M/s Air IndiaBombay Airport and Another v. M/s Asia Tanning Co. and Anr.[5],The Shipping Corporation of India Ltd., Bombay and Anr. v. Unionof India[6], The East and West Steamship Company, Georgetown,FMadras v. S.K. Ramalingam Chettiar[7], Air India Ltd. v. Tej ShoeExporters P. Ltd. and Anr.[8] and Gulf Air Company v. Nahar SpinningMills Ltd. and Others[9] which took the view that Carriage by Air Act, 2 For completion of the narration, it may be stated that the appellant had initiallyapproached the District Consumer Forum which took the view that the transaction iscommercial in nature and therefore, it did not have the jurisdiction. The appeal andGrevision against that order were also dismissed, though on the ground of delay.3 hereinafter referred to as ‘Air Act, 1972’.4 2014 SCC Online Mad 247.5 2002SCC Online Mad 802.6 2004 SCC Online Mad 489.7 AIR 1960 SC 1058.8 2013 SCC Online Del 3749.H9 1999 SCC Online P & H 915.

1972 excludes the applicability of Limitation Act. The High Court observedthat: - “30. Thus, consistent view taken by the Apex Court and alsoby various High Courts is that the Carriage by Air Act 1972,being a special statute, enacted to give effect to theinternational convention, the provisions thereof will have anoverriding effect. In view thereof, section 18 of the LimitationAct, which is a general enactment, cannot have any applicationin the present case to extend the period of limitation, which isprescribed in Rule 30 of Schedule II of the Act.”

7.2 As a consequence of such a decision, the High Court setaside the decision of the Trial Court on the preliminary issue and heldthat the suit is barred by limitation and dismissed the same.

Submissions:

8.1 Shri Vinay Navare, Senior Advocate, appearing for theAppellant submitted that Section 29(2) of the Limitation Act providedthat unless the Limitation Act is expressly excluded, its provision appliesto any law prescribing a distinct period of limitation. He submitted thatRule 30 of the Second Schedule of the Air Act, 1972 has not expresslyexcluded the applicability of the Limitation Act. He further submittedthat Rule 30 (2) explicitly enables “method of calculating the periodof limitation” based on the law of the Court seized of the case. On thisbasis, he urged that the provisions of the statutes are complementary toeach other and must be read harmoniously. He fairly brought to ournotice the judgment of the Court of Appeal in the United Kingdom inLaroche v. Spirit of Adventure (UK) Ltd.[10 ]and the judgment of theSecond Circuit of the United States Court of Appeals in Fishman v.Delta Airlines[11].In these cases, the Courts have taken the view that themunicipal laws governing the period of limitation are not to be appliedfor claims made under the statutes based on international conventions.Shri Navare distinguished these judgments on the ground that the statutoryposition based on Section 29(2) of the Limitation Act read with correctinterpretation of Rule 30 of Second Schedule of the Air Act, 1972 wouldstand on a different footing, and therefore these judgments aredistinguishable.

10 (2009) EWCA Civ 12.

11 938 F. Supp. 228 (1996)

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10 (2009) EWCA Civ 12.

11 938 F. Supp. 228 (1996)

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A8.2 Ms. Ritu Singh Mann, Advocate for the Respondent-Airlines,primarily contended that the exclusion under Section 29(2) can be impliedfrom the provisions of the Air Act, 1972. The Learned Counsel relied onthe judgment of this Court in Hukumdev Narain Yadav v. Lalit NarainMishra[12]. In the written submissions, for the first time, the Respondentsought to argue that it is Rule 35 of the Third Schedule and not Rule 30Bof the Second Schedule of the Air Act, 1972 which will be applicable tothe case at hand[13]. Our attention was also drawn to the judgments of theCourts in United Kingdom (Sidhu v. British Airways[14], Philips v. AirNew Zealand[15]), the United States of America (Fishman v. DeltaAirlines[16], Kahn v. Trans World Airlines[17]) and Australia (Bhatia v.CMalaysian Airline System Berhad[18]) to buttress the submissions.

Issues:

9. In view of the rival submissions, the following issues arise forconsideration:

1. Does Limitation Act, 1963 apply to the period specified inRule 30 of the Second Schedule of the Carriage by Air Act,1972?

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2. Whetherthe Air Act, 1972, particularly Rule 30 of the SecondSchedule expressly excludes the applicability of theELimitation Act, 1963?

Issue No.1:

Does Limitation Act, 1963 apply to the period specified inRule 30 of the Second Schedule of the Carriage by Air Act, 1972?

10. It is to be noticed that matters concerning the internationalFcarriage of persons, baggage, or cargo performed by aircraft for reward are the subject matter of International Conventions. These are12 (1974) 3 SCR 31.13 The submission of the Respondent, taken for the first time in the written submissionthat it is Section 4A and the Third Schedule of the Act, which is applicable need notdetain us as there is virtually no difference between Rule 35 of the Third Schedule andGRule 30 of the Second Schedule. We will therefore proceed based on Second Scheduleonly.14 [1997] 1 All ER 19315 (2002) EWHC 800 (Commercial Court).16 Supra no. 11.17 82 A.D. 2d 696: (1981) 443 NYS 2d 79.H18 (2018) FCA 1471.

incorporated into our laws through the Schedules to theAir Act, 1972.Section 3[19] of the Air Act, 1972 incorporates the Warsaw Convention,1929[20] into the First Schedule and specifically provides that it shallhave the status of law in India. Section 4[21] incorporates the HagueProtocol dated 28.09.1955 and provisions it in the Second Scheduleand gives it the status of law in India. Similarly, Section 4A[22] broughtinto force in 2009 for giving effect to the Montréal Convention, 1999[23]incorporates it in the Third Schedule to the Act and gives it the statusof law in India.

11. Chapter III of the Second Schedule relates to, ‘Liability ofthe Carrier’, which recognizes the principle of International Law of lexfori, as per which suits and proceedings in the judicial for a of the membernations are to be governed by the law of the Court in which the proceedingis instituted[24]. This principle is recognized by Rule 29(2) of the SecondSchedule itself; “Rule 29. (1) An action for damages must be brought, at theoption of the plaintiff, in the territory of one of the HighContracting Parties, either before the Court havingjurisdiction where the carrier is ordinarily resident, or has 19 Section 3 : Application of Convention to India

(1) The rules contained in the First Schedule, being the provisions of the Conventionrelating to the rights and liabilities of carriers, passengers, consignors, consignees,and other persons, shall, subject to the provisions of this Act, have the force of law inIndia in relation to any carriage by air to which those rules apply, irrespective of thenationality of the aircraft performing the carriage.

20Convention for the Unification of Certain Rules Relating to International Carriage byAir, Signed at Warsaw on 12 October 1929.

21Section 4 : Application of amended Convention to India

(1) The rules contained in the Second Schedule, being the provisions of the amendedConvention relating to the rights and liabilities of carriers, passengers, consignors,consignees and other persons, shall, subject to the provisions of this Act, have the forceof law in India in relation to any carriage by air to which those rules apply, irrespectiveof the nationality of the aircraft performing the carriage.”

22Section 4A : Application of Montreal Convention to India

(1) The rules contained in the Third Schedule, being the provisions of the MontrealConvention relating to the rights and liabilities of carriers, passengers, consignors,consignees, and other persons, shall, subject to the provisions of this Act, have the forceof law in India in relation to any carriage by air to which those rules apply, irrespectiveof the nationality of the aircraft performing the carriage 23Convention for the Unification of Certain Rules Relating to International Carriage byAir, Signed at Montreal on 28 May, 1999.

24 Rukmaboye v. LulloobhoyMotichand (1935) 5 HIA 234.

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Ahis principal place of business, or has an establishment bywhich the contract has been made or before the Court havejurisdiction at the place of destination.

(2) Question of procedure shall be governed by the law of the”Court seized of the case.

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12. The procedural law governing the institution and adjudicationof civil suits in India includes the Civil Procedure Code, 1908 as well asthe Limitation Act, 1963. The Limitation Act is a branch of adjectivallaw, and applies to all proceedings which it governs from the date of itsenactment. There is however a well-established principle, which statesCthat when the right itself is extinguished, the provisions relating to limitationhave no application. A direct example where the right itself is extinguished,can be evidenced in Section 11[25 ]as well as Section 27[26 ]of the LimitationAct, 1963. Section 11 deals with suits filed in India with respect tocontracts entered in foreign countries. Following the Principle of lexfori, the Section provides that rules of limitation provided in a foreignDjurisdiction are not applicable. However, the exception to this Rule isprovided in Section 11 (2)(a), when the Contract i.e., the right itselfexpires. Similarly, Section 27 also recognizes the principle ofextinguishment of Right to Property being an exception to theapplicability of the Limitation Act, 1963.

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13.1 The distinction between barring a remedy as exception iswell established, as can be seen in the following precedents. Theextinguishment of the right and its effect on limitation is well recognizedby courts of law. We may refer to some of the important precedents.

25 Section 11. Suits on contracts entered into outside the territories to which theFAct extends

(1) Suits instituted in the territories to which this Act extends on contracts entered into inthe State of Jammu and Kashmir or in a foreign country shall be subject to the rules oflimitation contained in this Act.

(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreigncountry shall be a defence to a suit instituted in the said territories on a contract enteredinto in that State or in a foreign country unless-G

(a) the rule has extinguished the contract; and (b) the parties were domiciled in that State or in the foreign country during theperiod prescribed by such rule.

26 Section 27. Extinguishment of right to property At the determination of the period hereby limited to any person for instituting a suit forpossession of any property, his right to such property shall be extinguished.

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13.2 A similar issue as in the present case, arose for considerationin TheEast and West Steamship Company v. S.K. RamalingamChettiar[27], where this Court had to consider 3[rd ]Clause of Para 6 ofArticle III in Schedule to the Indian Carriage of Goods by Sea Act,1925[28 ]wherein, while interpreting the expression discharge from theliability, this Court held as under: - “….The question we have to decide is whether in saying thatthe ship or the carrier will be “discharged from liability”,only the remedy of the shipper or the consignee was beingbarred or the right was also being terminated. It is useful toremember in this connection the international character ofthese rules, as has been already emphasized above. Rules oflimitation are likely to vary from country to country. Provisionsfor extension of periods prescribed for limitation wouldsimilarly vary. We should be slow therefore to put on the word“discharged from liability” an interpretation which wouldproduce results varying in different countries and thus keepingthe position uncertain for both the shipper and the shipowner.Quite apart from this consideration, however, we think thatthe ordinary grammatical sense of “discharged from liability”does not connote “free from the remedy as regards liability”but are more apt to mean a total extinction of the liabilityfollowing upon an extinction of the right. We find it difficultto draw any reasonable distinction between the words“absolved from liability” and “discharged from liability” andthink that these words “discharged from liability” wereintended to mean and do mean that the liability has totallydisappeared and not only that the remedy as regards theliability has disappeared. We cannot agree with the learnedJudge of the Madras High Court that these words merely meanthat “that even though the right may inhere in the personwho is entitled to the benefits, still the liability in the oppositeparty is discharged by the impossibility of enforcement.”The

28 "In any event the carrier and the ship shall be discharged from all liabilityin respectof loss or damage unless suit is brought within one year after the delivery of the goodsor the date when the goods should have been delivered.”

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Adistinction between the extinction of a right and the extinctionof a remedy for the enforcement of that right, though fine, isof great importance.The Legislature could not but have beenconscious of this distinction when using the words“discharged from all liability” in an article purporting toBprescribe rights and immunities of the shipowners. The wordsare apt to express an intention of total extinction of the liabilityand should, specially in view of the international characterof the legislation, be construed in that sense. It is hardlynecessary to add that once the liability is extinguished underthis clause, there is no scope of any acknowledgment ofC”liability thereafter.

13.3 In RM. AR. AR. RM. AR. Ramanathan Chkttiar and othersv. K.M.CL.M. Somasundaram Chettiar and Ors.[29], it was held asfollows: - D

“It is a well-accepted rule of International Law that all mattersof procedure will be governed by the law of the country inwhich the Court where any legal proceeding is initiated issituate. Statutes of limitation in so far as they prescribe periodswithin which claim should be enforced, whereby the remedyEalone is barred, are regarded as merely procedural.

But there may be provisions in such statutes which extinguishthe rights of the parties. S. 28 of the Indian Limitation Act isan instance where on the remedy being barred the right toproperty also stands extinguished. In such a case, that is,Fwhere there is no right alive by reason of its extinguishmentby a statute there could obviously be nothing to be enforcedin that country or in any foreign country. Provisions of thatkind cannot be regarded as merely procedural as they createor destroy substantive rights of parties.This principle hasGbeen recognised in a statutory-form in S. 11 (2) of the IndianLimitation Act.”

13.4 In Punjab National Bank and others v. Surendra PrasadSinha[30], this Court held:29 (1964) 77 LW 399.H30 1993 Supp (1) SCC 499.

“5. …The rules of limitation are not meant to destroy the rightsof the parties. Section 3 of the Limitation Act 36 of 1963, forshort “the Act” only bars theremedy, but does not destroy theright which the remedy relates to. The right to the debtcontinues to exist notwithstanding the remedy is barred bythe limitation. Only exception in which the remedy alsobecomes barred by limitation is that the right itself is destroyed.For example, under Section 27 of the Act a suit for possessionof any property becoming barred by limitation, the right toproperty itself is destroyed. Except in such cases which arespecially provided under the right to which remedy relates inother case the right subsists. Though, the right to enforce thedebt by judicial process is barred under Section 3 read withthe relevant article in the schedule, the right to debt remains.The time barred debt does not cease to exist by reason ofSection 3. That right canbe exercised in any other mannerthan by means of a suit. The debt is not extinguished, but theremedy to enforce the liability is destroyed. What Section 3refers is only to the remedy but not to the right of the creditors.Such debt continues to subsist so long as it is not paid….”

13.5 The principles laid down in the above referred precedentsare consistently followed in decisions of this Court in Khadi Gram UdyogTrust v. Ram Chandraji Virajman Mandir[31], State of Kerela and Ors.

31 (1978) 1 SCC44.

“4. ……There is ample authority for the proposition that though a debt is time-barred,it will be a debt due though not recoverable, the relief being barred by limitation.In Halsbury’s Laws of England (Third Edn.) Vol. 24 at p. 205, Article 369, it is stated“except in the cases previously mentioned, the Limitation Act, 1939 only takes away theremedies by action or by set-off; it leaves the right otherwise untouched and if a creditorwhose debt is statute-barred has any means of enforcing his claim other than by actionor set-off, the Act does not prevent him from recovering by those means”. The Court ofappeal in Curwen v. Milburn [(1889) 42 Ch D 424] Cotton, LJ said:”Statute-barreddebts are dues, though payment of them cannot beenforced by action.”The same viewwas expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd.v. State of Bombay [AIR 1958 SC 328: 1958 SCR1122 : (1958) 1 Lab LJ 778] where itheld that the statute limitation only bars the remedy but does not extinguish the debt,except in cases provided for by Section 28 of the Limitation Act, which does not apply toa debt.”

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Av. V.R. Kalliyanikutty and Anr.[32 ]and also in Prem Singh and Ors. v.Birbal and Ors.[33].

14. In view of the well-established position of law relating to LexFori in International Law, with the equally well-established exceptionarising out of the extinguishment of the right or the liability itself, we willBnow examine the position in India as per Rule 30 in the Second Scheduleof the Air Act, 1972 relating to liability of the carrier. Rule 30 is of theAir Act, 1972 is extracted as under:- “30. (1) The right to damagesshall be extinguishedif an actionis not brought within two years, reckoned from the date ofCarrival at the destination, or from the date on which the aircraftought to have arrived, or from the date on which the carriagestopped.

(2) The method of calculating the period of limitation shallbe determined by the law of the Court seized of the case.”DAnalysis of Sub-Rule (1) of Rule 30:

15.1 While Rule 29 speaks about judicial remedy for initiating anaction for damages, Rule 30 uses the expression right to damages. It is 32 (1999) 3 SCC 657E“15. It has been submitted before us that the statute of limitation merely bars the remedywithout touching the right. Therefore, the right to recover the loan would remain eventhough the remedy by way of a suit would be time-barred. Reliance was placed on KhadiGram Udyog Trust v. Ram ChandrajiVirajman Mandir, (1978) 1 SCC 44 in thisconnection. The Court there observed that though a debt may be time-barred, it wouldstill be a debt due. The right remains untouched and if a creditor has any means ofenforcing his right other than by action or set-off, he is not prevented from doing so.FIn Punjab National Bank v. Surendra Prasad Sinha [1993 Supp (1) SCC 499] thisCourt held that the rules of limitation are not meant to destroy the rights of parties.Section 3 of the Limitation Act only bars the remedy but does not destroy the right whichthe remedy relates to. Excepting cases which are specifically provided for, as for example,under Section 27 of the Limitation Act, the right to which the remedy relates subsists.Though the right to enforce the debt by judicial process is barred, that right can beexercised in any manner other than by means of a suit. For example, a creditor’s rightGto make adjustment against time-barred debts exists.”33 (2006) 5 SCC 353.

“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguisha right. The only exception to the said rule is to be found in Section27 of the LimitationAct, 1963 which provides that at the determination of the period prescribed thereby,limited to any person for instituting a suit for possession of any property, his right toHsuch property shall be extinguished.”

in the context of right as against a remedy that the purpose, object andmeaning of Rule 30 is to be understood. Further, Rule 30 also uses theexpression “extinguishment” as against “bar”, which is generally usedin the context of a remedy. Therefore, the extinguishment is of right,that is, the right to damages is the subject matter of Sub-Rule (1) ofRule 30. The expressions, ‘right’ and ‘extinguished’ employed by theConvention as adopted and incorporated by the Parliament in Rule 30 ofthe Second Schedule clearly establishes the intention of the law-giverthat the right to damages would not subsist after the expiry of theperiod mentioned therein.

15.2 Once the right to damages is extinguished upon the expiry oftwo years reckoned from the three alternative dates mentioned in theRule itself, nothing would remain for enforcement. Section 3 of theLimitation Act only bars the remedy, but when the right itself isextinguished, provisions of the Limitation Act have no application. Forthis reason, in The East and West Steamship Co.[34], this Court held thatonce the right of liability is extinguished under the clause, there is noscope of acknowledging the liability thereafter.

15.3 This is the position of law is obtained from the plain languageof Sub-Rule (1) of Rule 30. The position is however very different whenwe proceed further to consider Sub-Rule(2) of Rule 30.

Sub-Rule (2) of Rule 30:

16.1 Sub-Rule (2) is extracted as under: - “(2) The method of calculating the period of limitation shallbe determined by the law of the Court seized of the case.”

16.2 In its plain and simple language, Sub-Rule (2) seems to adoptthe applicability of the Limitation Act, 1963 as Courts in India exercisejurisdiction. ‘The method of calculating the period specified in Sub-rule (2)naturally relates to the period’ specified in Sub-rule (1). Sub-Rule (1) identifies and fixes two incidents. The period of limitation andthe date of commencement of the said period (the three specified dates).Therefore, when the period of limitation, as well as the date ofcommencement of the said period, are already given, the method ofcalculation of the period of limitation contemplated under Sub-Rule(2) must relate to some other factor. However, without specifying the AB

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Avariable to which the method of calculating the period, is to apply, Sub-rule (2) merely provides that it “shall be determined by the lawapplicable to the Court seized of the case.” This has caused uncertaintyabout the intent of the lawmakers, be it the Convention or Rule 30 of theSecond Schedule of the Act.

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16.3 Further, the expression in Rule 30(2)calculating the periodof limitation is synonymous to the expression computation of period oflimitation provided in Part-III of the Limitation Act, 1963. Part-III whichrelates to the exclusion of certain time periods is to sub-serve a justcause based on public policy which recognizes human vulnerabilities.CBroadly, these periods relate to (i) the date from which the period is tobe reckoned (Section 12); (ii) the time taken for seeking to contest as apauper, (Section 13); (iii)the bona fide period involved in the perusal ofa remedying the wrong Court(Section 14);(iv) fraud (Section 17); (v)acknowledgment of debt (Section 18); (vi) admitted payments on accountof debt (Section 19); (vii)continuous breach etc. These are the periodsDthat can be excluded while computing the period of limitation under theLimitation Act, 1963.

17.1 It is in the above-referred context that Shri Navare, learnedcounsel appearing on behalf of the Appellant has emphasized theEaffirmation of the Limitation Act to proceedings under the Air Act, 1972as per the plain language of Rule 30(2) and submitted that the expression,‘method of calculating limitation period’ in Rule 30(2) is akin to theexpression ‘for the purpose of determining any period of limitation’provided in Section 29(2) of the Limitation Act. He contends that theSub-Rule (2) of Rule 30 specifically incorporates Limitation Act into theFlegal regime of the Air Act, 1972.

17.2 On the other hand, Ms. Ritu Singh Mann, relied on Section29(2) of the Limitation Act to submit that the provisions of the LimitationAct are expressly excluded by the special law of the Air Act, 1972. Thewritten submissions emphasized the purpose and object of theGInternational Conventions, which provided for ‘collective State actionfor further harmonization and codification of certain rulesgoverning international carriage by Air’. It is then submitted that ifcourts of every signatory state were to interpret the provisions of theConvention in their own way, then the very purpose of achieving uniformity H

in application of the Conventions would be lost. For the first time in thewritten submissions, the Respondent has taken a plea that it is Rule 35of the Third Schedule and not Rule 30 which will be applicable. However,on consideration we do not find any notable difference between the twoand hence, we would proceed to refer Rule 30 of the Second Schedulein our further analysis.

18. The rival submissions surface due to an apparent conflictbetween Sub-Rule (1) and Sub-Rule (2) of Rule 30 of the SecondSchedule. While Sub-Rule (1) extinguishes the right itself upon theexpiry of the period of two years, after which nothing would remainfor enforcement, Sub-Rule (2) seems to suggest that the Court seizedof the case can apply the law of limitation applicable to its proceedingsand entertain the suit of the proceedings. We will now analyze andinterpret Rule 30 of the Second Schedule.

19.1 However, before we proceed to interpret Rule 30, it isnecessary to clear certain doubts about the applicability of the correctSchedule. While the suit was instituted on the assumption that it is Rule30 of the Second Schedule adopting the Warsaw Convention, 1929 asamended by the Hague Protocol, 1955 would be applicable to theproceedings, the Trial as well as the High Court and even the partiesassumed that this is the correct Rule that would apply to the facts of thecase. It is for the first time in the written submission that the Respondentstated that it is Rule 35 of the Third Schedule of the Montréal Convention,1999 that will apply to the facts of the case. The change in the stand isapparently due to the deletion of two words “of limitation” occurring inSub-Rule (2) of the Second Schedule from the same provision introducedunder Rule 35 of the Third Schedule. Based on this minor change theAppellant advanced an argument in the written submission that theconscious deletion of the expression “of limitation” clarifies the positionthat Sub-Rule (2) only relates to a period of two years and has gotnothing to do with “a period of limitation” and therefore, the LimitationAct has no application.

19.2 A comparative statement of the Third Schedule relatable tothe Warsaw Convention, 1929, Warsaw Convention as amended byHague Protocol, 1955, and the Montréal Convention of 1999 is reproducedherein for ready reference: - AB

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ARule 29 Schedule IRule 30 Schedule II (Article Rule 35 Schedule III (Article (Article 29 of the Warsaw 29 of the Warsaw Convention 35 of the Montreal Convention, Convention, 1929)as amended by Hague 1999)Protocol, 1955)The right of damages shall be (1) The right to damages shall (1) The right to damages shall extinguished if an action is not be extinguished if an action is be extinguished if an action is brought within two years, not brought within two years, not brought within a period of reckoned from the date of reckoned from the date of two years, reckoned from the Barrival at the destination, or arrival at the destination, or date of arrival at the from the date on which the from the date on which the destination, or from the date aircraft ought to have arrived, aircraft ought to have arrived, on which the aircraft ought to or from the date on which the or from the date on which the have arrived, or from the date carriage stopped.carriage stopped.on which the carriage stopped.(2) The method of calculating (2) The method of calculating the period shall be determined the period of limitation shall by the law of the Court seized Cbe determined by the law ofof the case.the Court seized of the case.

19.3 It would be apparent from the above that even after thedeletion of the expression “of limitation” in the Montréal Convention of1999, the difficulty persists in as much as Sub-Rule(2) talks about themethod of “calculating the period” and as such a period must necessarilyDrelate to the period of two years as specified in Sub-Rule (1) of Rule 30.Calculation of the period for an action for damages would necessarilyinvolve law of Limitation as that is an adjective statute governing suitsand other proceedings instituted in India. Even assuming that the deletionof the expression brings more clarity to the scope and ambit of the Rule,Ethat will be confined to Rule 35(2) of the Third Schedule and the difficulty would continue to prevail with respect to the period during which Rule30 of the Second Schedule operates. It is, therefore, compelling and theprimary duty of the Court to analyze, interpret and declare the true andcorrect meaning of the said provision.

FInterpretation

20. Our task is to decipher and declare the correct meaning andpurport of Rule 30 of the Second Schedule of the Act. Schedule Two ofthe Act merely incorporates the Warsaw Convention, as amended bythe Hague Protocol, 1955. It is well known that incorporation of aGConvention or a treaty into municipal laws is normally carried out inthree ways and the status that it enjoys depends on the nature ofincorporation. Referring to the Use of International treaties in PartXIV under Section 221, Francis Bennion[35] observed as under:

35 See, Bennion on Statutory Interpretation, 6th Edition, 2013. [Part XIV: The InformedInterpretation Rule (Legislative History), pg. 632.]

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“(1) An international treaty may have three different kindsof status, considered as a source of law- (a)an Act may embody, whether or not in the samewords, provisions having the effect of the treaty(in this Code referred to as direct enactment ofthe treaty);B

(b) an Act may say that the treaty is itself to haveeffect as law, leaving the treaty’s provisions toapply with or without modification (in this Codereferred to as indirect enactment of the treaty);

(c) the treaty may be left simply as an internationalobligation, being referred to in the constructionof a relevant enactment only so far as called forby the presumption that Parliament intends tocomply with public international law.

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(2) Whichever status a treaty has, its provisions may bereferred to as an aid in the interpretation of a relevantenactment. So too may its preparatory work (travauxpreparatoires), the decision on it of foreign courts (lajurisprudence) and the views on it of foreign jurists (ladoctrine).”

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21. Vienna Convention on Law of Treaties, 1969 can be referredto as a “treaty on treaties”. It establishes comprehensive rules,procedures, and guidelines for how treaties are defined, drafted, amended,interpreted, and generally operated. Section 3 of Vienna Conventionrelates to interpretation of treaties, of which Articles 31 and 32 arerelevant for our purposes and are extracted herein below for readyreference.

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“SECTION 3. INTERPRETATION OF TREATIES

Article 31: General rule of interpretation

1. A treaty shall be interpreted in good faith in accordancewith the ordinary meaning to be given to the terms of thetreaty in their context and in the light of its object and purpose.

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2. The context for the purpose of the interpretation of a treatyshall comprise, in addition to the text, including its preambleand annexes:

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(a) any agreement relating to the treaty which was madebetween all the parties in connection with the conclusionof the treaty; (b) any instrument which was made by one or more partiesin connection with the conclusion of the treaty and acceptedBby the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regardingthe interpretation of the treaty or the application of itsprovisions; C

(b) any subsequent practice in the application of the treatywhich establishes the agreement of the parties regardingits interpretation;

(c) any relevant rules of international law applicable inDthe relations between the parties.

4. A special meaning shall be given to a term if it is establishedthat the parties so intended.”

22. Apart from Article 31, it is also important for us to note Article32 which relates to “Supplementary means of Interpretation”.E“Article 32: Supplementary means of interpretation Recourse may be had to supplementary means ofinterpretation, including the preparatory work of thetreatyand the circumstances of its conclusion, in order to confirmthe meaning resulting from the application of article 31, or toFdetermine the meaning when the interpretation according toarticle 31:

(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd orunreasonable.”G

23. When statutes are enacted to give effect to a treaty orconvention, Articles 31 and 32 of the Vienna Convention becomesrelevant for interpretation of such statutes[36].The court must be 36 R v. Secretary of State for the Home Department exparte Adan, (1999) 4 All ER 774.Hp. 785 (CA); untrammeled by notions of its national legal culture, for the true,autonomous and international meaning of the treaty. And, there can onlybe one true meaning.[37] One event of adaptation of this method occurredin the case of Fothergill v. Monarch Airlines[38], in construing theCarriage by Air Act, 1961[39] in the United Kingdom which was enactedto give effect to the Warsaw Convention. The House of Lords held thatin dealing with such an Act, a purposive construction should be appliedand reference could be made to the opinion of international jurists asalso to travaux preparatoires of the convention in a limited sense.[40]

24. Following Article 32 authorizing recourse to supplementarymeans of interpretation, including preparatory works of a treaty, we willnow proceed to examine the legislative history of Article 29 of the WarsawConvention, 1929 which eventually was modified in 1955 in the HaugeProtocol and thereafter by the Montréal Convention in 1999. The originaldraft of this clause as of 1929 occurred as Article 28 was as under:

“28. The right of damages shall be extinguished if an actionis not brought within two years, reckoned from the date ofarrival at the destination, or from the date on which theaircraft ought to have arrived, or from the date on which thecarriage stopped.

(2) ”the manner of calculating the period of limitation, as wellas the causes for suspension and interruption of the period of limitation, shall be determined by the law of the forum court.”

25.1 The above draft fell for consideration before it was adoptedin the convention as Article 29. The member States deliberated on theproposed Articles of the Carriage by Air Convention between 4[th] to 12[th]October, 1929 in Warsaw. During the process, the members deliberatedon Article 28 on 07.10.1929. At that time, Republic of Italy raised thefollowing objection with respect to the draft Article:

37 R. (on the application of Mullen) v. Secretary of State for the Home Department(2004) 1 All ER 65, p. 84)

See further, Justice G.P. Singh, Principles of Statutory Interpretation. 14[th] Edition, pg693.

38 (1980) 2 All ER 696.

39 The Act sets out the convention in a schedule in two parts. Part I sets out the Englishtext and Part II, the French text. In case of inconsistency, the Act says that the Frenchtext is to prevail.40(1980) 2 All ER 696: (1981) AC 251.

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“The period of time, in order that there be interruption of theperiod of limitation, varies with the country, and it is verydifficult for the shipper, the consignor to know when theinterruption or the suspension begins. Despite the period oftwo years fixed for the period of limitation, he must alwayswait until this period of limitation runs and this period of twoyears which is necessary to give some kind of tranquility ismodified.

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Moreover, the system which we have proposed becomes verysimple; if two years after the accident no action has beenbrought, all actions are extinguished. As a consequence, thesecond paragraph would disappear, and it would benecessary to modify the first paragraph in adding some wordsto better render the formula. We get across the meaning, but,from the French point of view, perhaps the wording needs tobe reexamined.”[41]

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It was further elaborated in their memo that:

“If one considers that the period of limitation is long enoughand that, particularly taking into account the causes ofsuspension, it may, according to the law of several countries,be prolonged indefinitely, it’s not a good idea to refer thedetermination of the aforementioned causes to the law of thecourt chosen by the plaintiff. Perhaps the law of the aircraft’snationality could constitute a surer and more just element ofdetermination vis a vis the carrier. The above-citeddisadvantages could be eliminated in a more radical fashionin substituting for the period of limitation a period of forfeiture.This would render the second paragraph useless. Moreover,one must add, after the word ‘instituted’ the phrase ‘under”penalty of forfeiture’[42].

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25.2 Their objection stemmed from the concerns expressed byshippers, who would be subjected to multiple jurisdictions without anyGclarity with respect to the position of law in each jurisdiction. It is in thiscontext, that the Italian Delegation sought amendment of Article 29seeking immunity from interference on the ground of limitation, which41 Robert C.; Legrez Horner, Didier, Translators. Second International Conference onPrivate Aeronautical Law, October 4-12, 1929, Warsaw: Minutes (1975) at p.110.42 Ibid. Pg 112-113.

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varies from jurisdiction to jurisdiction, causing great amount of uncertainty.In reply, the Delegation from France stated:

“MR. RIPERT (France): I am not at all opposed to the Italianproposal, but it is aimed, in the final analysis, only at thecauses of suspension of the period of limitation, which mustdisappear. It must, all the same, be indicated that it’s the lawof the forum court which will fix how, within the period oftwo years, the court will be seized, because in all the countriesof the world suits are not brought in the same way.

One has to act within two years; who will fix the beginning ofthe suit? A text is necessary which says that it will be theforum court which will say if the suit was properly begun. In France, there is the pretrial conference; in other countriesreferral to the civil court is indispensable; but I am very muchof the opinion that we must eliminate the interruption of theperiod of limitation, and I ally myself with the Italian proposal.

MR. MOTONO (Japan): I’d like to point out one question ofwording. The liability action means interruption of the periodof limitation.

MR. RIPERT (France): Exactly, it’s because the suit is notintroduced in all countries in the same way that it has to be,that the forum court will indicate how it must be introduced.”[43]

25.3 After the deliberations, Sub-Article (2) was modified and inits place, the following clause was inserted and the Convention wasbrought into force. Thus, Article 29 in its present form is as under:

“Article 29

1. The right to damages shall be extinguished if an action isnot brought within two years, reckoned from the date of arrivalat the destination, or from the date on which the aircraft oughtto have arrived, or from the date on which the carriagestopped.

2. The method of calculating the period of limitation shall bedetermined by the law of the Court seized of the case.”

26. We must at this stage mention a minor fact, which has nobearing on the issue that we are concerned with but it is necessary tomake a reference to it. We have noticed that sub-article (2) of Article 29

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Aof the Warsaw Convention, 1929 does not find place in Rule 29 asincorporated in Schedule I of the Indian Carriage by Air Act, 1934. Afterindependence, when the Parliament enacted the Carriage by Air Act,1972, after repealing the 1934 Act and incorporated the WarsawConvention, 1929 in First Schedule. Here also sub-article (2) of theWarsaw Convention is missing in Rule 29. However, Second ScheduleBincorporating the Warsaw Convention, as amended by the HagueProtocol, 1955 consisting of the Article 29 (1) and (2) is fully incorporatedin Rules 30 (1) and (2) in the Second Schedule. We need not say anythingmore than this after noting the minor variation.

27. The legislative history of the Warsaw Convention coupledCwith the deliberations at the International Conferences as a result ofwhich the draft got modified and took the shape as it stood in Article 29of the Convention, lends sufficient clarity to the purpose and object ofintroducing sub-article (2) to Article 29, which is to exclude the suspensionof any period of limitation. As noticed in the conference, suits are notDbrought in the same way across jurisdictions and therefore this deliberationis specifically left to the forum Court to fix and determine the beginningof the suit or the proceeding.

28. This position is well articulated in the judgment of the AppellateDivision of the Supreme Court of New York in Kahn v. Trans WorldAirlines[44].E

“Moreover, it is equally clear from the delegates’ discussionthat the only matter to be referred to the forum court byparagraph 2 of the present article 29 was the determinationof whether the plaintiff had taken the necessary measuresFwithin the two year period to invoke that particular court’sjurisdiction over the action. An obvious example of the needfor such a provision is the difference between the method ofcommencing an action in the New York State courts as opposedto the Federal courts. Thus, in New York, depending uponthe forum chosen, the plaintiff in an action governed by theGWarsaw Convention must either effect service upon thedefendant (CPLR 304) or file a complaint in the FederalDistrict Court (Fed Rules Civ Pro, rule 3 [in US Code, tit 28,Appendix] within the time limited by article 29, i.e., two years.

Accordingly, regardless of whether or not the Convention itself“creates” any causes of action, it is readily apparent that thetime limitation incorporated in article 29 was intended to bein the nature of a condition precedent to suit, and that it wasnever intended to be extended or tolled by infancy or otherincapacity. In addition, such an intent on the part of the’draftsmen is fully consistent with one of the Conventions over-“--all purposesthat of establishing a uniform body of world”wide liability rules to govern international aviation.

29. In view of the uncertainty in the language of sub-article (2) ofArticle 29, as in the case of Sub-Rule (2) of Rule 30 for India, courts oflaw across jurisdictions were called upon to consider the rival submissionson the construct of the said provision. Learned counsels appearing forboth the parties have placed before us the decisions of foreign courtsthat have ruled upon Article 29 and interpreted the said provision, moreor less consistently taking a view that the domestic laws of limitation willhave no bearing on the period of two years. Before we consider thesejudgments, it is important to restate a well-recognized principle that courtsof law must endeavor to maintain a uniformity of interpretation withcourts of other jurisdictions while interpreting international treaties andconventions.

30. The need for a uniform policy and a global approach has beenunderlined by the House of Lords in Morris v. KLM Royal DutchAirlines[45] and in a number of other decisions.[46]

“81. In an ideal world the Convention should be accordedthe same meaning by all who are party to it. So, case lawprovides a further potential source of evidence. Carefulconsideration needs to be given to the reasoning of courts ofother jurisdictions which have been called upon to deal withthe point at issue, particularly those which are of highstanding. Considerable weight should be given to aninterpretation which has received general acceptance in otherjurisdictions. On the other hand, a discriminating approachis required if the decisions conflict, or if there is no clearagreement between them.”

45 [2001] 3 WLR 351

46 Zicherman v. Korean Air Lines Co. Ltd.,516 US 217, (1996), EI AI Israel AirlinesLtd. V. T.Y.Tseng 525 U.S. 155 (1999).

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31. Having said so, we will now refer to some leading judgmentson the issue from the jurisdictions of the United Kingdom, United Statesof America and Australia which examined Article 29 of the WarsawConvention.

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32. The Supreme Court of the United Kingdom passed a judgmentin Laroche v. Spirit of Adventure[47 ]where it examined the history ofArticle 29 of the Warsaw Convention and held that it provided asubstantive time bar and not a procedural time bar. It further held thatthe Warsaw Convention provides a code that is exclusive of any resortCto the Articles of domestic law. The Court traced the history of theprovision as above and ultimately held that the Warsaw Convention soughtto adopt the position suggested by the Republic of Italy. It was held, “70. The judge was in my view, right to hold at [48] to [51]that article 29(2) does not permit the 2 year period to besuspended, interrupted or extended by reference to domesticlaw. The only thing that it leaves for determination by thecourt seized of the case is the calculation of the precise datesof the beginning and end of the relevant two year period andthe determination of whether the action has been broughtwithin that two year period.

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71. In reaching his conclusion on this issue, the judge hadregard to what was said in the travaux preparatoires to theWarsaw Convention in relation to what became article 29.The first draft of what became article 29(2) was in these terms:

“The method of calculating the period of limitation, as wellas the causes of suspension and interruption of the periodof limitation, shall be determined by the law of the courthaving taken jurisdiction” (emphasis added).

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72. The Italian delegation objected that the words in italicsmade “the legal situation of the carrier too uncertain”. TheGItalians later proposed deleting the second paragraph so that“after two years any action dies and is no longer admissible”.Their reasoning was that “the period of time, in order thatthere be interruption of the period of limitation, varies with H47 Supra no. 10.

the country, and it is very difficult for the shipper, theconsignor to know when the interruption or the suspensionbegins”. Their proposal was “very simple; if two years afterthe accident no action has been brought, all actions areextinguished”. After further discussion, the Italian proposalwas adopted. These discussions were in plenary session. Itseems that the matter was raised again in committee, when itwas decided to accept the modified Italian proposal to adoptthe wording “the liability action must be instituted under painof forfeiture within a period of two years”. Despite thepuzzling French contribution at that stage that “onedetermines at the same time the periods of interruption andof limitation. We are in agreement in substance”, the Italianproposal was adopted. There was then yet further discussionwhich led to the adoption of article 29 in the form in which itwas finally signed.

73. Although it is difficult to follow the minutiae of thesenegotiations, in my view it is clear that the signatories to theWarsaw Convention intended to adopt the Italian proposalthat, in the interests of certainty, at the expiry of the two-yearperiod, all claims under the Convention would be“extinguished” and that the only matters for determinationby the court seized of the matter would be determination ofthe dates and whether the action was brought within the two-year period. This is a powerful indicator that the words ofarticle 29(1) mean what they say and that the two-year periodis not subject to suspension, interruption or extension in anycircumstances.

74. So to interpret article 29(1) would also further the objectof the Convention that it was to be “a uniform internationalcode, which could be applied by the courts of all the highcontracting parties without reference to the rules of their owndomestic law”: see per Lord Hope in Sidhu v British AirwaysPlc [1997] AC 430, 453C-D.

75. I also accept the submission of Mr Lawson that thisinterpretation is consistent with the rule that a generalprovision (such as article 29(2)) cannot give validity to a ruleof procedure of the court seized of the case that is in conflict AB

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with an express provision of the Convention. As Phillips LJsaid in Milor S.R.L v British Airways Plc [1996] QB 702,707E: “by way of example, if the procedural law of the chosenforum imposed a 12 month limitation period, it does not seemto me that this could displace the two year period of limitationlaid down by article 29 of the Convention.

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76. As regards US jurisprudence, the decision of New Pentaxv Trans World relied on by Mr Davey is a first instancedecision. In the subsequent decision of Fishman v Delta AirLines Inc 132 F 3d 138, the Court of Appeal of the samecircuit rejected the proposition that article 29(2) permittedCthe limitation period to be determined in accordance with thelex fori. In reaching this conclusion, the court had regard tothe travaux preparatoires to the Warsaw Convention andreached the same conclusion on their meaning and effect asI have done at [73] above. Although New Pentax does notDappear to have been cited in Fishman, the latter is a decisionof a superior court.”

33. A similar view has been taken in a number of other judgments[48]in the United Kingdom.

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34. The Second Circuit of the Court of Appeals in the UnitedStates of America in Fishman v. Delta Air Lines Inc[49], a burn injurywas inflicted on an infant by an air hostess. The infant, through hermother, brought an action against the airline after a period of 2 years,claiming that the local limitation law suspends limitation for infants. TheFCourt of Appeals also traced the history of the provision in the WarsawConvention to find that:

“Almost every court that has reviewed the drafting minutes ofthe Convention, including the district court in this case, hasrejected the contention that Article 29(2) incorporates thetolling provisions otherwise applicable in the forum. See, e.g.,Castro v. Hinson, 959 F. Supp. 160, 163 (E.D.N.Y. 1997);Fishman, 938 F. Supp. at 230; Royal Ins. Co., 834 F. Supp. at G

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48 See, Sidhu v. British Airways (1997) 2 WLR 26; Philips v. Air New Zealand (2002)EWHC 800 (Commercial Court).

636; Kahn, 443 N.Y.S.2d at 87. The minutes reveal that thedrafters of the Convention specifically considered and rejecteda proposed provision that would have allowed the limitationsperiod to be tolled according to the law of the forum court.See R.C. Horner and D. Legrez, Minutes of the SecondInternational Conference on Private Aeronautical Law, 110-13 (1975); Kahn, 443 N.Y.S.02d at 86-87; Royal Ins. Co.,834 F. Supp. at 636. As the district court recognized, the mainconcern of the drafters in rejecting the tolling proposal was “to remove those actions governed by the Convention fromthe uncertainty which would attach were they to be subjectedto the various tolling provisions of the laws of the memberstates.” Kahn, 443 N.Y.S.2d at 87. Moreover, the debates overthe language ultimately adopted in Article 29 indicate thatthe only matter to be referred to the forum court by subsection2 of Article 29 was “the determination of whether the plaintiff-had taken the necessary measures within the twoyear periodto invoke that particular court’s jurisdiction over the action.”

35. Similarly, the Court of Appeals for the Ninth Circuit of theUnited States of America in Narayanan v. British Airways[50 ]affirmedthe position under the Warsaw Convention and found that the MontrealConvention also envisages the same position. It was held, “The drafting history of the Warsaw Convention also revealsthat the drafters intended Article 29 to operate as a statute ofrepose, which, “like a jurisdictional prerequisite, extinguishesa cause of action after a fixed period of time … regardless ofwhen the cause of action accrued.” Albillo-De Leon v.Gonzales 410 F.3d 1090, 1097 n.5 (9[th] Cir. 2005). The draftersconsidered – and rejected – a proposal that would haveallowed the limitations period to be tolled in accordance withthe law of the forum court. See R.C. Horner and D. Legrez,Minutes of the Second International Conference on PrivateAeronautical Law, 110-13 (1975); see also Fishman, 132 F.3dat 144 (observing that “[a]lmost every court that has reviewedthe drafting minutes of the [Warsaw] Convention … hasrejected the contention that Article 29(2) incorporates thetolling provisions otherwise applicable in [a] forum [state]”.

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Instead, the Warsaw Convention’s drafters adopted a “verysimple” proposal advanced by the Italian delegation: “if twoyears after the accident no action has been brought, all actionsare extinguished.”

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Consistent with this history, the prevailing view among courtsacross jurisdictions is that the Montreal Convention’s limitationperiod operates as a condition precedent to suit and, as such,is not subject to equitable tolling.”

36. The Supreme Court of New York also came to a similarCconclusion in Kahn v. Trans World Airlines Inc.[51 ]In this case, the Courthad occasion to examine the history of the provision once again. It lookedinto the travaux preparatoires and found that the provision was debatedand based on the debates, it held that:

“Based upon the foregoing, it is abundantly clear that theDdelegates to the Warsaw Convention expressly desired toremove those actions governed by the Convention from theuncertainty which would attach were they to be subjected tothe various tolling provisions of the laws of the member States,and that the two-year time limitation specified in article 29Ewas intended to be absolute — barring any action which hadnot been commenced within the two-year period. Moreover, itis equally clear from the delegates’ discussion that the onlymatter to be referred to the forum court by paragraph 2 ofthe present article 29 was the determination of whether theplaintiff had taken the necessary measures within the two-Fyear period to invoke that particular court’s jurisdiction overthe action. An obvious example of the need for such aprovision is the difference between the method of commencingan action in the New York State courts as opposed to theFederal courts. Thus, in New York, depending upon the forumGchosen, the plaintiff in an action governed by the WarsawConvention must either effect service upon the defendant(CPLR 304) or file a complaint in the Federal District Court(Fed Articles Civ Pro, Article 3 [in US Code, tit 28, Appendix])within the time limited by article 29, i.e., two years.”

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37. The Federal Court of Australia, in Bhatia v. Malaysian AirlineSystem Berhad[52 ]followed the judgments in Laroche and Kahn and heldthat the local limitation law will not apply in view of Article 29(1) of theWarsaw Convention. It was held in Para 34:

“34. The Convention has as its purpose the uniformity andcertainty of the law, among its signatories, in relation to(relevantly) personal injury suffered by passengers in thecourse of international air carriage to which it applies. Therights created by the Convention (given the force of law inAustralia) are rights enjoyed by persons referred to as“passengers”. The corresponding liabilities are imposed uponpersons referred to as “carriers”. The word “action” in Art35 must be given a construction that advances the object ofproviding certainty in the legal relationship between thesetwo persons. The “right to damages” subject to extinguishmentunder Art 35, may naturally be understood as referring tothe right possessed by one person that is enforceable againstanother person having a corresponding liability. It followsthat the steps necessary to bring an “action” must includesteps sufficient to invoke the jurisdiction of a court todetermine the controversy concerning the respective rightsand liabilities of the first person in relation to the second.Thus, the words “brought” and “action” must be understoodas referring to a process by which the disputed rights andliabilities of the two persons come before a court foradjudication.”

38. We have come across one decision of France’s Cour deCassation in Lorans v. Air France[53 ]which has taken a different viewof the matter. However, the decisions that we have referred haveconsidered the issue from all perspectives including the decision of theFrench Court, and did not accept the reasoning adopted therein. It isalso important to mention that there are some decisions of the US Courtsin the case of Joseph v. Syrian Arab Airlines[54 ]and Flanagan v.McDonnell Douglas Corp[55] which have also not deliberated the issue

53 (1977) 31 RFDA 268: (Cour de Cassation [Assemblee Pleniere] Jan,14, 1997).

54 88 F.R.D. 530 (S.D.N.Y. 1980).

55 428 F.Supp. 770 (C.D. Calf. 1977).

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Ain detail on arriving at the interpretation as is done in the cases that wehave referred to hereinabove. Excluding these minor variations, anoverwhelming majority of the decisions have taken an informed viewthat Article 29 excludes and is intended to exclude the application ofmunicipal legislations, excluding the periods of limitation.

B39. So far as India is concerned there is no direct decision of thisCourt on the Air Act, 1972. The closest we get is the decision of thisCourt under the Indian Carriage of Goods by Sea Act, 1925, which fellfor interpretation inEast and West Steamship Co. v. S.K. RamalingamChettiar[56], where this Court had observed that “Rules of limitation arelikely to vary from country to country. Provisions for extension ofCperiods prescribed for limitation would similarly vary. We shouldbe slow therefore to put on the word “discharged from liability” aninterpretation which would produce results varying in differentcountries and thus keeping the position uncertain for both theshipper and the shipowner…It is hardly necessary to add that onceDthe liability is extinguished under this clause there is no scope ofacknowledgment of liability thereafter. Apart from this, we havecertain decisions of the High Courts that have interpreted Rule 30 of theSecond Schedule of the Act.

Decisions of our High Courts on Rule 30, Second Schedule:E40. The High Courts across the country have also taken a similar E40. The High Courts across the country have also taken a similarview that the Limitation Act, 1963 will be excluded from operation for aclaim under the Air Act. The High Courts have reasoned that the AirAct is a special statute and would thus prevail over the Limitation Act,1963, which is a general statute. The High Court of Delhi in Air IndiaFLtd. v. Tej Shoe Exports P. Ltd.[57], Sailesh Textile Industries v. BritishAirways& Anr.[58], Indian Airlines v. Angelique International Ltd.&Anr.[59], Ethopian Airlines v. Federal Chemical Works Ltd.[60], the HighCourt of Madras in M/s M.R.F Ltd. v. Singapore Airlines[61] and AirIndia, Bombay Airport v. Asia Tanning Co.,[62] and the High Court ofBombay, in the judgment impugned before us, have all taken this view.G56 Supra no. 7.57 Supra no. 8.58 2003 SCC Online Del 318 (at paras 10 to 15).59 2014 SCC Online Del 6825 (at para 16).60 2004 SCC Online Del 862 (at para 15).61 Supra no. 4.H62 2002 SCC Online Mad 802 (at para 7).

41. There is only one decision that has taken a different view ofthe matter, and that is the decision of the High Court of Gujarat in NationalAviation Company of India Ltd. v. Jatnadevi Tejraj Jain,[63]. The HighCourt reasoned that Article 30(2) of Schedule II makes the law of theCourt seized of the matter applicable and the law of the Court seized ofthe matter in India is the Limitation Act, 1963. It was held:

“10. The aforesaid Rule provides that right to damages shallbe extinguished if the action is not brought within two yearsfrom the date on which the aircraft ought to have arrived ator stopped. However, sub-rule (2) expressly provides that thecalculation of the period of limitation shall be as per themethod determined by the law of the Court seized with thecase. Therefore, it is apparent that after applying the methodas provided by the law of the Court, the period of 2 years isto be counted, and thereafter, the right to damages shall getextinguished if the action is not brought within the said periodof 2 years. The law of the Court seized with the case is theLimitation Act, 1963. Part III of the Limitation Act providesfor computation of the period of limitation, which can be saidas at par with the method of calculation of the period oflimitation. Section 14 of the Act provides for exclusion of thetime of proceeding bona fide in Court without jurisdiction.Therefore, while computing the period of limitation of twoyears, in our view, section 14 of the Limitation Act wouldapply.”

42. We have already considered the true and correct meaning ofRule 30 (2), or as the case may be Rule 35 (2) of the Third Schedule byreferring to the Conventions, coupled with travaux preparatoires. TheGujarat High Court has not considered the matter in the right perspectivewhile interpreting Rule 35 (2).

43. In the ultimate analysis, keeping in view the legislative historyof the Convention and in view of the consistent interpretation of Article29 of the Convention adopted in different jurisdictions, for the purposeof uniformity and also to subserve the purpose and object of theConvention, we are of the view that Rule 30 (2) does not enableapplicability of exclusion of periods for the purpose of reckoning theperiod of two years.

63 2011 SCC Online Guj 7601 (at para 10).

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AIssue No. 2

Whether the Air Act, 1972, particularly Rule 30 of the SecondSchedule expressly excludes the applicability of the Limitation Act,1963?

44.1 On this issue Shri Navare made a two-prong submission.BRule 30 of Second Schedule in terms reiterates the applicability of Section29 of the Limitation Act and at the same time the Air Act, 1972 being aspecial law, the provisions of Limitation Act apply as there is no expressexclusion.

44.2 Shri Navare submits that firstly, there is no provisionCwhatsoever in the Air Act expressly excluding the applicability of theLimitation Act. For this reason, the provisions of the Limitation Act mustapply as a matter of public policy. Secondly, Rule 30 (2) of the Air Act interms reiterates the applicability of the Limitation Act. In the writtensubmissions he has highlighted the fact that Section 29 of the Limitation DAct is very different from Section 39 of the Limitation Act, 1980 of theUnited Kingdom.44.3 On the other hand Ms. Ritu Singh Mann has submitted thatthe Air Act, 1972 excludes the applicability of the Limitation Act.

45. While dealing with Issue No.1, we have held that the right toEdamages itself is extinguished after the expiry of the period of two yearsand therefore the provisions of the Limitation Act have no application asthere is no right subsisting for enforcement. In this context we havereferred to Section 3 of the Limitation Act which merely bars the remedyand not the right itself, but when the statute extinguishes the right itselfFthe position is very different. We will however consider the presentargument of ShriNavare as an alternative plea and proceed forthwith todeal with the same.

46. Where a period of Limitation is prescribed in a special law, byvirtue of Section 29 of the Limitation Act, such period will apply as if itwas provided in the Schedule of the Limitation Act. Consequently, theGprovisions of Sections 4 to 24 will apply for the purpose of computationof period of limitation. This provision is subject to a bright exception thatthe Limitation Act will not apply if it is “expressly excluded” by theSpecial Act. Section 29 of the Limitation Act to the extent that isnecessary is as under: -H

“29. Savings

(1) …..….

(2) Where any special or local lawprescribes for any suit,appeal or application a period of limitation different fromthe period prescribed by the Schedule, the provisions of section3 shall apply as if such period were the period prescribed bythe Schedule and for the purpose of determining any periodof limitation prescribed for any suit, appeal or applicationby any special or local law, the provisions contained insections 4 to 24 (inclusive) shall apply only in so far as, andto the extent to which, they are not expressly excluded bysuch special or local law.”

47. The statutory requirement of express exclusion is consideredby this Court in a number of decisions.[64 ]Express empowerment is not tobe understood in a pedantic manner. Express empowerment is to begathered from the provisions of the statute. In Shanmugam v.Commissioner for Registration[65], the Privy Council held that:

“It is argued that the Act does not contain the “expressprovision” required by the Interpretation Ordinance to makeit applicable. Their Lordships do not agree. Upon the meaningof the words “express provision” counsel relied upon in reMeredith and stated that it must be provision the applicabilityof which did not arise by inference. He argued that there wasno “express provision” as no reference had been made topending proceedings. Their Lordships are of the view that itis correct to state that express provision is provision theapplicability of which does not arise by inference.Theapplicability, however, of the provision under discussion tothe present case does not arise by inference; it arises directlyfrom the language used. The Fact that the language used iswide and comprehensive and covers many points other thanthe one immediately under discussiondoes not make it possibleto say that its application can arise by inference only.To be“express provision” with regard to something it is not 64 Needle Industries (India) Ltd. and Anr. v. Needle Industries Newey (India) HoldingLtd. and Ors(1981) 3 SCC 333.65 [1962] 2All E.R. 609.

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necessary that that thing should be specially mentioned; it issufficient that it is directly covered by the language howeverbroad the language may be which covers it so long as theapplicability arises directly from the language used and notby inference therefrom. The argument fails.”

48. In Hukumdev Narain Yadav v. Lalit Narain Mishra[66], theCourt held as under: -

“17. ……….Even assuming that where a period of limitationhas not been fixed for election petitions in the Schedule tothe Limitation Act which is different from that fixed underSection 81 of the Act, Section 29(2) would be attracted, andwhat we have to determine is whether the provisions of thisSection are expressly excluded in the case of an electionpetition. It is contended before us that the words “expresslyexcluded” would mean that there must be an express referencemade in the special or local law to the specific provisions ofthe Limitation Act of which the operation is to be excluded.As usual the meaning given in the Dictionary has been reliedupon, but what we have to see is whether the scheme of thespecial law, that is in this case the Act, and the nature of theremedy provided therein are such that the Legislature intendedit to be a complete code by itself which alone should governthe several matters provided by it. If on an examination of therelevant provisions it is clear that the provisions of theLimitation Act are necessarily excluded, then the benefitsconferred therein cannot be called in aid to supplement theprovisions of the Act. In our view, even in a case where thespecial law does not exclude the provisions of Sections 4 to24 of the Limitation Act by an express reference, it wouldnonetheless be open to the Court to examine whether and towhat extent the nature of those provisions or the nature of the-subjectmatter and scheme of the special law exclude theiroperation.”

49. Following the principle laid down in Hukumdev[67], we will nowexamine the relevant provisions of the Air Act, 1972, its Schedules, and66 (1974) 2 SCC 133.67 Supra no. 66.

Rule 30, in particular, to see if these provisions have the effect of expresslyexcluding the applicability of the Limitation Act.

Carriage by Air Act, 1972

50. The Air Act, 1972 is an Act to give effect to variousInternational Conventions for the unification of certain Articlesrelating to international carriage by air. The Preamble of the Actstates:

“An Act to give effect to the Convention for the unification ofcertain rules relating to international carriage by air signedat Warsaw on the 12th day of October, 1929 and to the saidConvention as amended by the Hague Protocol on the 28thday of September, 1955 1 [and also to the MontrealConvention signed on the 28th day of May, 1999 and to makeprovision for] applying the rules contained in the saidConvention in its original form and in the amended form(subject to exceptions, adaptations and modifications) to non-international carriage by air and for matters connectedtherewith.”

51. The International Conventions incorporated in the Act are the(i) Warsaw Convention, 1929; (ii) The Warsaw Convention, 1929 asamended by the Hague Protocol on 28.09.1955 and (iii) the MontréalConvention, 1999. Section 3 of the Act incorporates the WarsawConvention into the Act as the First Schedule and specifically provides itthe status of law in India. Section 4 incorporates the Hague Protocoland provisions it in The Second Schedule. Section 4A for giving effect toMontréal convention, provides The Third Schedule to the Act andspecifically provides the status of law to these provisions.

52. The Warsaw Convention as amended by the Hague Protocolis a complete code within itself for all questions relating to carriage byair by international carriages. Rule 1(1) provides that the Hague Protocolshall apply to “all international carriage of persons, baggage orcargo performed by aircraft for reward”. Rule 2 provides that theConvention will apply to carriage performed by the State or by legallyconstituted public bodies. Chapter II of the Convention (Rules 3 to 16) isentitled “Documents of Carriage”. Rule 3 relates to the documentsthat a carriage of passengers must deliver. Rule 4 prescribes a mechanismfor baggage check. Rule 5 to 11 relates to the air waybill in cases of A

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Acargo carriages. Rule 12 relates to the right of the consignor to disposeof the goods in a manner that is not prejudicial to the carrier. Rule 13pertains to the rights of the consignee upon the arrival of the goods. Rule13(3) provides that where there is a loss of goods, the consignee shall beentitled to enforce the rights which ‘flow from the contract of carriage’.Rule 14 provides for the consequences of non-compliance of Rule 12Band 13.

53. The Chapter with which we are presently concerned with isChapter III which is titled ‘Liability of the Carrier’. Rule 17 providesfor the liability of a carrier for damages in the event of death or woundingor other injuries caused to a passenger while onboard the aircraft. RuleC18 envisages the liability of a carrier in the event of destruction, loss,damage etc. of cargo. Similarly, Rule 19 concerns the liability of a carrierupon delay in the carriage of passengers, baggage or cargo. Rule 20provides for an equitable exemption to the carrier if he proves that hehad taken all necessary measures to negate the delay or damage. RuleD21 is yet another equitable provision that protects the carrier in cases ofcontributory negligence. Rule 22 specifies the minimum liability of thecarrier. Rule 23 nullifies all limits which are lower than those provided inRule 22.

54. Rule 24 stipulates that any action for damages “can only beEbrought subject to the conditions and limits set out in theserules”.Rule 25 relates to the vicarious liability of the carrier. Rule 26provides that a servant/agent of a carrier shall be exempted from liabilityif he proves that he acted within the scope of his employment. Rule27(1) specifies that receipt of baggage or cargo is prima facie proof ofits good condition. Rule 27(2) provides that where the goods are damaged,Fa complaint must be made within 7 days of the date of receipt of baggageand 14 days from the date of receipt of cargo. Rule 27(3) provides thata complaint shall be made in writing. Rule 27(4) further provides that ifno complaint is made within the period specified, no action shall lie againstthe carrier except in cases of fraud. Rule 28 stipulates that the legalGrepresentatives of a deceased person can bring an action for damages.Rule 29 is the jurisdictional clause, and provides that the action may bebrought in the territory of one of the State Parties, either before thecourt of the domicile of the carrier or of its principal place of business orwhere it has a place of business through which the contract has beenmade, or before the court at the place of destination. Rule 29(2) stipulatesH

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

55. 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 actionis not brought within two years, reckoned from the date ofarrival at the destination, or from the date on which theaircraft ought to have arrived, or from the date on which thecarriage stopped.

(2) The method of calculating the period of limitation shallbe determined by the law of the Court seized of the case.”

56. Chapters IV, and V are not of much relevance to the case athand. Suffice it to say that they are machinery provisions that do notaffect the interpretation of Rule 30.

57. The Convention certainly incorporated two variables in thecontext 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 whichhas been specified as any of the three events being (i) arrival at thedestination; or (ii) date on which the aircraft ought to have arrived; or(iii) the date on which the carriage stopped. Now, the only event thatremains is the date on which the action for damages is initiated as thiswould depend upon the law of the Court seized of the case.Rule30(2)specifically provides that “the method of calculating the period willbe determined by the law of the Court seized of the case.” Thisshould necessarily follow for the reason that the period of two years forenforcing the right would be extinguished if an action is not broughtwithin the said period.

58. We may also note that giving effect to the meaning of thewords the ‘law of the court seized of the case’ would lead to ananomalous situation where the law of every country would beincorporated into the Convention, thereby defeating the purpose of anInternational Convention which is to bring about uniformity across theglobe in the laws applicable to carriage by air.

59. Sub-Rule (2) must therefore be interpreted harmoniouslykeeping in mind not only the content of Sub-Rule (1) but also the purpose A

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Aand object of the Convention which is to bring about the unification ofRules relating to International Carriage by Air. The intention behind Article35(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. AsBstated above, in India, such a position could possibly arise if the legislatureenvisages mandatory pre-trial mediation. It is in order to accommodatefor this eventuality that the law-makers left some room for the domesticlaw to operate.

60. Having considered the matter in detail, we are of the opinionCthat Rule 30 of the Carriage by Air Act 1972, expressly excludes theapplicability of the Limitation Act,1963. Issue No.2 is answeredaccordingly.

61. For the reasons stated above, the Appeal arising out of SLPNo. 16767 of 2018, from the judgment of the High Court of Judicature atDBombay in WP No. 6647 of 2014 is accordingly dismissed. The partiesshall bear their own cost.

62. We place on record the valuable assistance given by ShriVinay Navare, assisted by Shri Pravartak Pathak, Advocate, Ms. GwenKarthika, Advocate and Ms. Abha R. Sharma, AOR for the AppellantsEand Ms. Ritu Singh Mann for Respondent assisted by Shri Dheeraj K.Garg, Advocate and Shri Rajan K. Chourasia, AOR.

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Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeal dismissed.

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