AHP Manufacturing v DHL Worldwide Network (no 2)

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 28 June 2000
• Neutral Citation: [2000] IEHC 131
• Court: High Court
• Date: 28 June 2000

[2000] IEHC 131

THE HIGH COURT

No. 2390p 1995

APH MANUFACTURING BV T/A WYETH MEDICA IRL v. DHL WORLDWIDE NETWORK NV & ORS

BETWEEN

APH MANUFACTURING B.V. TRADING AS WYETH MEDICA IRELAND

PLAINTIFF

AND

DHL WORLDWIDE NETWORK N.V., DHL WORLDWIDE EXPRESS GMbH AND DHL INTERNATIONAL (IRELAND) LIMITED

DEFENDANTS

Citations:

WARSAW CONVENTION ART 23

AIR NAVIGATION & TRANSPORT ACT 1936

AIR NAVIGATION & TRANSPORT ACT 1959

AIR NAVIGATION & TRANSPORT ACT 1956

WARSAW CONVENTION ART 1(3)

WARSAW CONVENTION ART 18(1)

WARSAW CONVENTION ART 18(2)

WARSAW CONVENTION ART 20(1)

WARSAW CONVENTION ART 22(2)(a)

WARSAW CONVENTION ART 22(4)

WARSAW CONVENTION ART 23

WARSAW CONVENTION ART 24(1)

WARSAW CONVENTION ART 25

WARSAW CONVENTION ART 30(1)

WARSAW CONVENTION ART 30(3)

SHAWCROSS & BEAUMONT AIR LAW 4ED V1 PARAS 570 & 604

CORCRAFT LTD V PAN AMERICAN AIRWAYS INC 1969 1 AER 82

WESTMINSTER BANK LTD V IMPERIAL AIRWAYS 1936 2 AER 890

CIE D'ASSURANCES ALPINA V CIE TRANSWORLD AIRLINES 1984 18 RFDA 234

R V STEPHENSON 1979 2 AER 1198

METROPOLITAN POLICE COMMISSIONER V CALDWELL 1982 AC 341

R V LAWRENCE 1981 1 AER 974

R V REID 1992 AC 341

SHAWINIGAN LTD V VOKINS & CO LTD 1961 3 AER 397

GURTNER V BEATON 1991 1 S & B AV R vii 499 & 1992 1 S & B AV R vii 723

GOLDMAN V THAI AIRWAYS INTERNATIONAL LTD 1983 3 AER 693

CLAUDIO V AVINCA ACROVAIS NATIONLES DE COLOMBIA SA 1987 1 S & B AV R vii 281

TONDRIAU V AIR INDIA 1976 EUR TR 907

BELGIAN INTERNATIONAL AIR SERVICE V MANDREOLI 1 S & B AV R vii 601

EMERY V SABENA 1968 22 RFDA 184

SWISS BANK CORPORATION V AIR CANADA 1 S & B AV R vii 37

PHIPSON ON EVIDENCE 14ED PARA 1610

SS PHARMACEUTICAL CO LTD V QANTAS AIRWAYS LTD 1989 1 LLOYDS REP 319, 1991 1 LLOYDS REP 288 & 1988 1 S & B AV R vii 313

AUSTIN V MANCHESTER 138 ER 181

Synopsis:

Contract Law

Contract; breach; contract for carriage of goods; consignment damaged; plaintiff claims for the value of the consignment and losses; whether limits on liability specified in section 22(1) of the Warsaw Convention apply; Convention limits on liability precluded if damage resulted from an act done recklessly and with knowledge that damage would probably result; moreover term included in contract of carriage that the limits on liability specified in Article 22 of the Convention should not apply where the damage resulted from the defendant's gross negligence.

Held: Plaintiff entitled to recover the amount of its loss without regard to limits on liability specified in Article 22 of the Convention.

APH Manufacturing v. DHL Worldwide Network - High Court: Finnegan J. - 28/06/2000 - [2001] 1 ILRM 224

The plaintiff manufactured pharmaceutical products and had engaged the defendants to transport some of these products. Whilst in transit the plaintiff's goods were damaged and the plaintiff sued the defendants for the loss of the consignment. The defendant sought to limit their liability as per the terms of the Warsaw Convention. The plaintiff sought to establish that the actions of the defendants constituted "gross negligence" and thus the limitations as set out under the Warsaw Convention did not apply. Finnegan J held that the terms of the hold harmless agreement did not relieve the defendants from liability under the Warsaw Convention. The plaintiff could not be said to have delivered a "special declaration of interest" to the defendants. However it had been shown that the defendants had transported the goods in a reckless manner, had done so with gross negligence and were not entitled to rely on the limitations as to liability as set out under the Warsaw Convention. The plaintiff was therefore entitled to recover the full amount of the loss incurred.

1 JUDGEMENT of Finnegan J. delivered the 28th day of June 2000 .

2 The Plaintiff is a pharmaceutical manufacturer manufacturing inter alia the female contraceptive pill an ingredient in which is gestodene micronised manufactured by Schering AG of Berlin.

3 The Defendants were retained for the purposes of the carriage of a consignment of gestodene micronised from Berlin to the Plaintiff's premises at Newbridge, Co. Kildare. The consignment was contained in a single cylindrical millboard container 42cms x 42cms x 42cms specified to carry 74 kgs. The consignment weighed much less than this, the total weight of the consignment including the container being 9.3 kgs. The design of the container is such that when carrying 75 kgs it will withstand a fall of 15 feet; having regard to the actual weight of the consignment the container would probably withstand a fall from up to 80 feet.

4 It is accepted that the consignment was suitably packed. The consignment had a value of DM1,800,000. The container was damaged and the contents lost in the course of carriage. In this action the Plaintiff claims against the Defendants for the value of the consignment and the losses being agreed at £

THE DEFENDANTS" OPERATION

5 The Defendants provide an overnight delivery service. In 1994 their main sorting operation was carried out at Brussels Airport - the Brussels Hub. At the relevant time some 100,000 shipments weighing 300 tonnes per night were handled at the Brussels Hub. In a very intensive operation lasting some four hours shipments would arrive by road or air from all over Europe and other parts of the world and would be turned around and forwarded to their destination within that four hour period.

6 The Brussels Hub is the largest of its kind outside of the United States. Some 1,900 staff are employed there at present but something less than this would have been employed in 1994. Each night some 28 aircraft and 70 trucks and vans would arrive and depart within the four hour period. On arrival an aircraft would park on an area called the ramp. Adjoining the ramp were two main buildings in which shipments were sorted for onward carriage. Shipments were classified as either -

7 1. "Conveyables" being shipments suitable to travel on the conveyor belt system and which were sorted in building no. 3.

8 2. "Non-conveyables" being shipments unsuitable for placing on the conveyor belt system because they exceed 25 kgs in weight or in size exceed one metre on a side and which were dealt with in building no. 2.

9 3. "Small non-conveyables" being shipments less than 25 kgs in weight or less than one metre on a side but which because of the manner in which they are packaged, their shape or otherwise are not classified as conveyables and these are dealt with in building no. 2. There they are removed from the aircraft container and stacked and then taken to building no. 3 where they are sorted and taken directly to the appropriate outbound aircraft container.

10 The Defendants' evidence was to the effect that small non-conveyables were transported from building no. 2 to building no. 3 either by baggage trolley or in an aircraft container and in each case being towed by an electrical tractor. The baggage trolley is a form of trailer of the type used to carry suitcases to aircraft at airports the contents being retained within the same by strong waterproof sheets. The aircraft container sometimes called an igloo is also designed to secure its contents. However, in cross-examination Mr Sodergard the General Manager of the Brussels Hub accepted that the Defendants" induction manual in dealing with small non-conveyables states that the same will be collected by fork lift truck or by other means for transport to the destination sort (building 3). He further accepted that fork lifts were in fact so used. He described this as a not very practical means of transporting small conveyables.

THE LOSS OF THE CONSIGNMENT

11 It is common case that the damage to the consignment is not consistent with falling from an aircraft or mishandling. On the evidence I find as a matter of probability that the consignment fell from a vehicle while being transported from building 2 to building 3 and was then run over by another vehicle. The risk of a small non-conveyable so falling being run over by another vehicle is very high having regard to the large number of vehicles operating in the Brussels Hub and the speed at which and the pressure of time under which the vehicles operate in that area and the relatively confined area over which such vehicles must travel. The importance of properly securing a small non-conveyable must have been very evident to the Defendants. If this consignment had been carried in a baggage trolley or an aircraft container it is most unlikely that the same could have fallen in the course of being transported. For this reason, having regard to the contents of the Defendants" induction manual and the evidence given by Mr Sodergard I find as a matter of probability that this consignment was being carried from building 2 to building 3 on a wooden pallet by a fork lift truck and that it was unsecured and expected to stay in place under its own weight. Had this consignment been carried on a baggage trolley or aircraft container it is most unlikely that it could fall out unless the baggage trolley or the container was not completely or properly closed which, according to Mr Sodergard is not very likely to have occurred.

THE CONTRACT OF CARRIAGE

12 The contract of carriage is partly in writing and partly oral. Insofar as the same is in writing it is contained in the following documents

13 1. The Defendants" standard terms and conditions.Prior to the discussions concerning the carriage of gestodene micronised the Defendants acted as a carrier to the Plaintiff. On the 16th September, 1993 the Defendants furnished to the Plaintiff their standard terms and conditions. The effect of the same is that where the Warsaw Convention applies the Defendants should have no liability beyond that imposed by the Convention.

14 2. The Airwaybill. The Defendants stipulated that it would only carry the gestodene micronised provided the hold harmless...