Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37650/97

by Barry MANNERS and 4 Others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 June 1997 by

Barry MANNERS and 4 Others against the United Kingdom and registered

on 4 September 1997 under file No. 37650/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are all British citizens and are resident in the

United Kingdom except for the first applicant, who resides in France

and England. A list of the applicants is annexed to the present

decision. They are represented before the Commission by Pannone

& Partners, solicitors, Manchester. The facts of the application, as

submitted by the applicants' representative, may be summarised as

follows.

A. The particular circumstances of the case

On 1 August 1990 the applicants were all passengers on British

Airways flight BA 149, from Heathrow Airport, London to Kuala Lumpur

via Kuwait and Madras. The flight was scheduled to leave at 16.15 GMT

but was delayed because of technical and weather problems. The

aircraft did not land in Kuwait therefore until 01.13 by which time

Iraq had invaded Kuwait. The airport was closed after the aircraft

landed and the passengers were detained in the terminal building by

Iraqi troops. The passengers were held hostage and used by the Iraqis

as "human shields" in strategic positions throughout Iraq until their

eventual release which for some of the applicants was not until

December 1990.

The applicants commenced High Court proceedings against British

Airways in England in July 1992 claiming compensation for psychological

trauma, physical injury and/or financial loss. The applicants brought

their claims under the Warsaw Convention of 1929 as amended by the

Hague Protocol of 1955 (the "Warsaw Convention"). They also alleged

that they had a claim in negligence against the airline because they

claimed that British Airways knew or ought to have known that the

invasion of Kuwait was imminent when the aircraft left London and that

consequently the aircraft should have been diverted.

The claims of the applicants were consolidated in November 1992

and a statement of claim was served on British Airways in

December 1992. British Airways' defence was received in January 1993.

Meanwhile similar claims had been brought in Scotland and England

by other passengers on flight BA 149, also seeking compensation from

British Airways. These other claims went to the House of Lords

together in 1996 and were unanimously dismissed (see Sidhu and others

v. British Airways plc, Abnett (known as Sykes) v. British Airways plc

[1997] 1 All ER 193 (also see Application No. 38698/97, Dec. 21.5.98)).

The House of Lords upheld the decisions of the Scottish courts that the

appellants did not have a right to sue British Airways under the Warsaw

Convention which governs claims by international air passengers against

carriers where the damage or injury suffered can be established as

resulting from the actions of the carrier. The court found that the

psychological damage alleged was a result of the passengers' detention

in Iraq and not a result of anything which British Airways did. It

further found that the Warsaw Convention provides an exclusive system

of liability and if a passenger fails to establish a claim under the

Warsaw Convention, he or she is precluded from seeking another remedy

under the common law actions of negligence or breach of contract.

The applicants in the present case are thus unable to take their

own High Court proceedings any further in the United Kingdom because

the House of Lords has already given a judgment on the points in

contention in favour of British Airways. Their own claim in the High

Court is likely to fail in that their circumstances are almost

identical to those of Abnett and Sidhu.

B. Relevant domestic law

Schedule 1 of the Carriage by Air Act 1961 incorporates the

Warsaw Convention into the primary legislation of the United Kingdom.

The Warsaw Convention is described in Schedule 1 as being "for the

Unification of Certain Rules relating to International Carriage by

Air".

Chapter I, Article 1(I) of the Warsaw Convention states:

"This Convention applies to all international carriage of

persons, baggage or cargo performed by aircraft for

reward."

Article 17:

"The carrier is liable for damage sustained in the event of

the death or wounding of a passenger or any other bodily

injury suffered by a passenger, if the accident which

caused the damage so sustained took place on board the

aircraft or in the course of any of the operations of

embarking or disembarking."

Article 19:

"The carrier is liable for damage occasioned by delay in

the carriage by air of passengers, baggage or cargo."

Article 24:

"(1) In the cases covered by Articles 18 and 19 any action

for damages, however founded, can only be brought

subject to the conditions and limits set out in this

Convention.

(2) In the cases covered by Article 17 the provisions of

the preceding paragraph also apply, without prejudice

to the questions as to who are the persons who have

the right to bring suit and what are their respective

rights."

COMPLAINTS

The applicants allege violations of Articles 1, 2, 3, 5, 6, 8,

13 and 14 of the Convention, together with Article 1 of Protocol No. 1.

They complain that the United Kingdom Government have failed to

recognise that their rights under the Convention have been violated,

failed to allow compensation for the alleged violations and failed to

provide an effective remedy to ensure that the applicants are able to

obtain such compensation.

THE LAW

1. The applicants allege violations of Articles 2, 3, 5 and 8

(Art. 2, 3, 5, 8) of the Convention, together with Article 1 of

Protocol No. 1 (P1-1). They complain that they feared for their lives

during their detention and that the circumstances of their detention

amounted to inhuman and degrading treatment although they were not

physically tortured. Further, they complain that they were deprived

of their liberty and are denied compensation. They complain that their

family life was disrupted and that they were deprived of their

possessions for four months.

Article 2 (Art. 2) of the Convention provides, so far as

relevant, as follows:

"Everyone's right to life shall be protected by law."

Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

Article 5 (Art. 5) of the Convention provides, so far as

relevant, as follows:

"Everyone has the right to liberty and security of person."

Article 8 (Art. 8) of the Convention provides, so far as

relevant, as follows:

"1. Everyone has the right to respect for his private and

family life...

2. There shall be no interference by a public authority with

the exercise of this right..."

Article 1 of Protocol No. 1 (P1-1) provides, so far as relevant,

as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions."

The Commission recalls that complaints may only be brought

against the State concerning actions of the State itself or matters for

which the State may be held responsible under the Convention. An

individual cannot complain of the actions of a private person or body

(W. v. Switzerland, No. 9022/80, Dec. 13.7.83, D.R. 33, p. 21). In the

present case, the applicants' complaints are not directed against the

United Kingdom Government but rather against the Iraqi Government or

army, or possibly at British Airways, a public limited company, which

is independent of the United Kingdom Government. The United Kingdom

Government were not responsible for the alleged inhuman or degrading

treatment of the applicants, nor were they responsible for the

deprivation of their liberty and security of person, nor for the

interference with their right to respect for private and family life.

The applicants have not argued that there is evidence to suggest that

the actions of British Airways can be imputed to the United Kingdom

Government.

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicants complain of a violation of Article 13 (Art. 13)

of the Convention.

Article 13 (Art. 13) of the Convention provides, so far as

relevant, as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority..."

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the

present case, the Commission has rejected the substantive claims either

as incompatible with provisions of the Convention or as disclosing no

appearance of a violation of the Convention. For similar reasons, they

cannot be regarded as "arguable".

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicants complain under Article 6 (Art. 6) that they have

not had a fair hearing. They complain in particular that it cannot be

fair for passengers in some member states (notably France) to be

compensated and other passengers in other member states to be denied

compensation. They complain that they are prevented from pursuing

their claims for compensation because of a limitation of liability

conferred on British Airways by virtue of the Warsaw Convention, but

such limitation has not prevented passengers in France from making

successful claims.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

"In the determination of his civil rights and

obligations...everyone is entitled to a fair and public

hearing..."

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies only to disputes ("contestations") over rights and

obligations which can be said, at least on arguable grounds, to be

recognised under domestic law. It does not in itself guarantee any

particular content for "rights and obligations" in the substantive law

of Contracting States (cf. Eur. Court HR, James and others v. the

United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46,

para. 81; Lithgow and Others v. the United Kingdom judgment of 8 July

1986, Series A no. 102, p. 70, para. 192). It is also established

case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who

claims that an interference with his "civil rights" is unlawful, the

right to submit that claim to a tribunal satisfying the requirements

of that provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere

v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).

Further, the Commission recalls that the Convention organs have

developed case-law in which the question of exclusion from the

substance of civil rights has been considered in the context of access

to court (see, for example, the discussion on the judicial limitations

on the substantive law of negligence in the United Kingdom in Osman

v. the United Kingdom, No. 23452/94, Comm. Report 1.7.97, and the case-

law referred to there).

In the present case, the Commission notes that the exclusion of

the applicants from the scope of the substantive law could be

considered as having been clear from the outset: the Carriage by Air

Act 1961 incorporates the Warsaw Convention and limits a carrier's

liability to damage "on board the aircraft or in the course of any of

the operations of embarking or disembarking". Thus, following the

European Court of Human Rights in its judgment in the case of Powell

and Rayner (Powell and Rayner v. the United Kingdom judgment of

21 February 1990, Series A no. 172), it may be possible to conclude in

the present case that Article 6 (Art. 6) was not applicable.

However, in the relatively recent judgment of the European Court

of Human Rights in the case of Fayed (Eur. Court HR, Fayed v. the

United Kingdom judgment of 21 September 1994, Series A no. 294-B), the

Court found it unnecessary to determine whether an immunity or

privilege delimited the content of substantive law or acted as a

limitation on the right to bring proceedings. The Court therefore

ascertained whether the contested limitation on the applicants' ability

to take legal proceedings satisfied the conditions set out in the

court's case-law (above-mentioned Fayed v. the United Kingdom

judgement, p. 51, para. 68). According to that case-law, limitations

on the right of access to court are permitted provided that they pursue

a legitimate aim and there is a reasonable relationship of

proportionality between the means employed and the aim sought to be

achieved (p. 49, para. 65, and the case-law referred to there).

The Commission will therefore address the issues of the aim of

the limitation on access to court in the present case and the

proportionality between the means employed and that aim.

The limitation on the applicants' access to court was brought

about by the incorporation into United Kingdom law of the Warsaw

Convention as amended at The Hague, 1955. That Convention created a

unified, international system of rules governing inter alia the rights,

duties and liabilities of carriers and their passengers. It has been

ratified by over 100 states. The Commission considers that the

legitimacy of the aim of rationalising international air traffic by

setting up a single system of liability for carriers and their

passengers is self-evident: aircraft move frequently and rapidly from

the air space above one country to the air space above another country,

and clarification of the rules on liability is to be welcomed in the

interest of orderly litigation.

As to the proportionality of the means employed with that aim,

the Commission notes that the Warsaw Convention as applied in the

United Kingdom does not merely exclude liability. Rather, it provides

for a comprehensive system of liabilities and duties whereby the

carrier is liable for damage sustained if a passenger is killed or

injured on board the aircraft or in the course of embarking or

disembarking (Article 17, subject to Article 20, which absolves the

carrier if all necessary measures to avoid the damage were taken), but

not otherwise. Liability is limited to 16,600 special drawing rights

per passenger (Article 22). A further feature of the Convention is

that exclusion clauses, which might attempt to set a lower limit of

liability or exclude liability altogether, are null and void

(Article 23).

The Warsaw Convention as applied in the United Kingdom thus

indeed limits access to court in the sense that actions for negligence

do not lie against airlines in respect of relevant flights, and that

airlines are not responsible for damage not occurring "on board ... or

in the course of embarking or disembarking". However, against the

limitation must be set the features of a generally simplified finding

of liability and the nullity of exclusion clauses. Overall, the

Commission cannot find that the specific limitations on access are

disproportionate to the legitimate aim pursued.

Finally, the Commission notes that the plaintiffs in the cases

of Abnett and Sidhu were able to, and did, put their claims to the

civil courts. Those claims were dealt with at considerable length by

the domestic courts, including the House of Lords. The applicants make

no complaint whatever about, for example, the fairness of the

proceedings which would have been available to them, and it is apparent

from the judgments in the Abnett and Sidhu cases that the plaintiffs

there were given extensive opportunity to put their cases to the

courts. The fact that the courts found that the claims fell outside

the scope of the substantive law is not relevant in the context of

Article 6 (Art. 6), which guarantees procedural rights in the

determination of civil rights (or whether a case falls outside the

scope of a civil right), and not the civil rights themselves.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicants also complain under Article 14 (Art. 14) that they

have been discriminated against as some of the other passengers on

flight BA 149 have been successful in obtaining compensation from

British Airways in the French courts whereas if the applicants were to

proceed with their claim in the English courts, it would be bound to

fail.

Article 14 (Art. 14) of the Convention provides, so far as

relevant, as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground."

The Commission recalls that Article 14 (Art. 14) affords

protection against discrimination, that is treating differently,

without an objective and reasonable justification, persons in

"relevantly" similar situations. For a claim of violation of this

Article to succeed, it has therefore to be established, inter alia,

that the situation of the alleged victim can be considered similar to

that of persons who have been better treated (see Eur. Court HR, Fredin

v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, para.

60). The applicants must show that they are persons in the same

category as another, that they have been treated differently, that such

treatment was not objectively and reasonably justified, and the

treatment was carried out by the Contracting State against which the

complaint is being made. There is no evidence in the present case that

the applicants have been discriminated against. The fact that the

French courts' interpretation of the Warsaw Convention may differ from

that of the English courts does not mean that the applicants have been

discriminated against by the United Kingdom Government.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicants allege a violation of Article 1 (Art. 1) of the

Convention.

Article 1 (Art. 1) of the Convention provides as follows:

"The High Contracting Parties shall secure to everyone within

their jurisdiction the rights and freedoms defined in Section 1

of this Convention."

In so far as the applicants allege a breach of Article 1

(Art. 1), the Commission concludes that no issue arises under this

Article as it considers that there is no indication of a violation of

any of the other Articles in the Convention (see X. v. the United

Kingdom, No. 6084/73, Dec. 1.10.75, D.R. 3, p. 62).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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MANNERS AND 4 OTHERS v. the United Kingdom

MANNERS AND 4 OTHERS v. the United Kingdom