#4982 - Messier Dowty V. Sabena - Conflict of Laws BCL

Messier Dowty v. Sabena

Facts

The proceedings follow from an Airbus A340 aircraft owned by Sabena being involved in an incident when landing at Brussels Airport on 29 August 1998. The incident was caused by the aircraft's starboard landing gear failing. Fortunately the injuries to those on board were slight but the aircraft and its starboard engine were extensively damaged. The loss caused by the failure of the landing gear, including losses sustained as a result of the aircraft being out of use while being repaired, is said to be about $US 50m. The aircraft was manufactured by the second defendant (Airbus). Airbus is a French economic entity registered under the laws of France. It is a consortium of European aircraft manufacturers. The British partner is the third defendant (BAA).

The landing gear was designed and manufactured by successive members of the Dowty group of companies to whom I will refer collectively as 'Dowty'. Dowty and BAA are companies registered in this country. Sabena is a Belgian company.

Contracts: The aircraft was supplied by Airbus to Sabena under a contract governed by French law. The contract contains an exclusive jurisdiction clause, which gives jurisdiction to the 'Tribunaux de Paris'. The contract relating to the design and supply of the landing gear states that it is made between BAA (the purchaser) and Dowty (the supplier). The contract recites that BAA is acting for and on behalf of Airbus. English law is the applicable law of the contract and the English courts are given exclusive jurisdiction.

It is Dowty's contention that the faults in the landing gear were due to the failure of BAA and/or Airbus to provide data for the design and manufacture of the landing gear which was 'sufficiently demanding'. In particular the 'fatigue spectra' which was provided to Dowty by BAA did not indicate the need for what would be an adequate fatigue strength. Dowty contends that BAA owed a duty of care to Dowty as to the provision of the data.

Proceedings by Sabena against Airbus and BAA in Paris: On 15 April 1999 Sabena made an application to the Tribunal de Commerce in Paris under art 145 of the new Civil Code. The application was for the appointment of a panel of experts to investigate and report on the causes of the incident on 15 April 1999. Dowty and Airbus were named as the defendants to the application.

Proceedings in England by Dowty: On 30 April 1999 Dowty issued proceedings in the High Court. The claims made by Dowty in these proceedings were as follows:

(a) Against [Sabena], for a declaration that [Dowty] are not liable to [Sabena] in respect of any loss, expenditure, liability or damage incurred by [Sabena] in consequence of or in connection with an accident at Brussels Airport on 29 August 1998 involving an A340/200 aircraft …

(b) Against [Airbus], for a declaration that [Dowty] are not liable to [Airbus] in respect of any loss, expenditure, liability or damage incurred by [Airbus] in consequence of or in connection with the accident referred to in paragraph (a)

(c) Against [BAA], for a declaration that [Dowty] are not liable to [BAA] in respect of any loss, expenditure, liability or damage incurred by [BAA] in consequence of or in connection with the accident…

Holding

Court’s general policy towards negative declarations

36. There is force in these comments. I can see no valid reason for taking an adverse view of negative declaratory relief. This is whether it is claimed in relation to transnational disputes or domestic litigation.

41. Lord Wilberforce and Lord Denning differed in the circumstances of that case as to whether the declaration would serve a useful purpose. However, if it would, that it would then be appropriate to grant a declaration was agreed. The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice.

42. While negative declarations can perform a positive role, they are an unusual remedy in so far as they reverse the more usual roles of the parties. The natural defendant becomes the claimant and vice versa. This can result in procedural complications and possible injustice to an unwilling 'defendant'. This in itself justifies caution in extending the circumstances where negative declarations are granted, but, subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so.

Should Sabena have been made a party to the English proceedings?

45. As I have already indicated, Sir Sydney Kentridge's primary justification for joining Sabena was that it would achieve a consistent determination of all questions of responsibility and fault concerning the landing gear in one set of proceedings. This is now almost certainly unobtainable because Sabena has commenced proceedings in France against Airbus and France under the convention has exclusive jurisdiction in relation to those proceedings (art 17).

Against this now flawed justification for Sabena being joined, there has to be placed the substantial arguments against Sabena being joined. These arguments are as follows. (1) Sabena's primary claim must always have been against Airbus. Airbus was the party with which Sabena contracted. Any litigation involving Sabena's contractual rights against Airbus was, for the reason already indicated, inevitably going to be based in France. (2) Requiring Sabena to defend proceedings in England would mean that Sabena was going to be subjected to the substantial disadvantage of having to litigate in a second jurisdiction, namely England, against its wishes at the same time as it was litigating in France. (3) Although Sabena has every reason to reserve its position as to whether it intends to make a claim against Dowty, it is doubtful if it will ever have cause to do so. The real dispute is as to who was responsible for the faulty design of the landing gear. This is now primarily a dispute between Dowty, Airbus and possibly BAA. (4) It is not at this stage suggested, because, for example, of a term in the contract between Airbus and Sabena, that Sabena will be unable to recover the same compensation from Airbus as it could from Dowty. From Sabena's point of view it could well be the case that there is no advantage in it being involved in the English proceedings. (5) If Sabena made a claim...