1
CORRESPONDENCE
Emrrox’s xo=: All cwrespondena should le addressed to the editor, McGill Lau Joarnal, 3044 Ptrl St..
Montreal 2, Qvuehc.
TO THE EDITOR:
The article in volume six number
four of the McGill Law Journal by
Giuseppe Guerreri on “‘Wilful Mis-
conduct in the Warsaw Convention”
is a useful contribution to the now
vast literature on air law.
Giuseppe Guerreri was the Re-
search Assistant at the Institute of
Air and Space Law during its 1959-60
session. Prior to coming to McGill
he was admitted to the Bar of Rome
in Italy; he was also an Assistant at
the Institute of International Air
Law at Rome University and a pupil
of Professor Ambrosini, a professor
who is well-known and respected in
the air law field. Guerreri is, there-
fore, well qualified to write an article
on an air law subject.
The article is an interesting discus-
sion of the leading American cases
on “wilful misconduct”, as that ex-
pression is used in the English trans-
lation of the Warsaw Convention. It
should be noted that the only
authentic text of the Convention, for
which the Polish Government, by
agreement between the original con-
tracting states, acts as a depository,
In that
is in the French language.
text, article 25 contains these words:
“… si Ic dommage provient de
son dol ou d’une faute qui,
d’apr~s la loi du tribunal saisi,
est consider& comme 6quiva-
lente au dol.”
The English translation reads:
“… if the damage is caused by
his wilful misconduct or by such
default on his part as, in accord-
ance with the law of the Court
seized of the case, is considered
to be equivalent to wilful mis-
conduct. ”
Under the provisions of the Con-
vention, if an air carrier is found
that
guilty of “‘wilful misconduct”
carrier is deprived of the protection
of the limitation of liability con-
tained in the Convention. In passen-
ger injury cases this limit is
approximately $8,300.
The Common Law courts in the
United States, in actions under the
Warsaw Convention involving
passenger injuries, including those
resulting in death, in which “wilful
misconduct” is alleged, are faced with
the necessity of giving a juridical
In the
meaning to that expression.
Common Law concept of negligence,
an act of a defendant can be negligent.
It can also be wilful. In cases in-
volving an allegation of “wilful mis-
conduct” as that term is used in the
Warsaw Convention, the Courts must
look beyond the usual concept of
negligence to the intentional viola-
tion of a safety rule or to some wil-
fully careless act of a carrier’s servant
involving at the same time reckless
disregard of its probable conse-
quences. In addition, the intentional
act must be the cause of the injuries
suffered by a plaintiff. This concept
of “wilful misconduct” places a heavy
onus of proof on any plaintiff who
makes such an allegation.
The expression “wilful misconduct”
does not convey to jurists exactly the
same meaning as “‘dol ou faute iqu:-
In spite of this
valente au dol”.
the Am:titian
difficulty, however,
No. 1]
CORRESPONDENCE
and French Courts are in surprising
agreement respecting the evidence
which a plaintiff must lead to succeed
in an action alleging against an air
carrier “wilful misconduct” or “dol ou
faute iquivalente au dol”. Guerreri
states that
“judges have been most cautious
in finding the carrier guilty of
‘wilful misconduct’ as claimed by
one party to the suit pour faire
sauter les limites’ “.
If and when the Hague Protocol
to the Warsaw Convention is ratified
by thirty States, which is the re-
quired number to bring it into force,
there will be substituted for Article
25 a new Article reading as follows:
“The limits of liability specified
in Article 22 shall not apply if
it is proved that the damage
resulted from an act or omission
of the carrier, his servants or
agents, done with intent to cause
damage or recklessly and with
knowledge that damage would
probably result; provided that,
in the case of such act or
omission of a servant or agent,
it is also proved that he was
acting within the scope of his
employment”.
As Guerreri points out, it is hoped
that this revision will enable the
Courts of the various States to reach
even greater uniformity in the inter-
pretation and intent of Article 25.
Time alone will determine whether
or not this hope is to be realized but
the prospect seems to be favourable.
It will be recalled that Guerreri’s
article is part of a slightly larger
pamphlet issued by the Institute of
in
Air and Space Law as publication
No. 6. This pamphlet is the subject
of a short review by Professor 0. J.
Lissitzyn
the American Journal
of International Law for October
1960. Professor Lissitzyn refers to
the pamphlet as reading more like a
student exercise than as a finished
monograph. He also makes the
comment that the important question
of whether the Warsaw Convention
creates a cause of action is omitted.
While it is admitted that Guerreri’s
article is an elementary treatise it is,
nevertheless, a useful tool in the
teaching of air law.
I should add that, in my opinion,
the inclusion in Guerreri’s pamphlet
of a discussion of the difficult problem
of whether the Warsaw Convention
creates a cause of action would have
been a digression from the main
theme. While the courts of France
have decided that liability in Warsaw
cases arises out of a breach of the
contract referred to in the Convention
and the courts of the United States
have decided that liability in such
cases should be founded
in tort,
which necessitates a search for a law
creating a cause of action, this
conflict of opinion has not caused
these courts to differ materially in
their interpretations of the expression
cwilful miscondurt”. It is conceded,
however, that cases relating to the
problem of whether the Warsaw
Convention creates a cause of action
could have been
in the
digest of cases.
included
A. BEATTY ROSEVEAR, Director
Institute of Air and Space Law
McGill University
McGILL LAW JOURNAL
[Vol. 7
To THE EDITOR:
In a recent article (Tort Liability
for Strikes: Some Problems of Judicial
Workmanship, Canadian Bar Review,
September, 1960) Mr. H. W. Arthurs
traces the developments and reason-
ing adopted in the Courts to establish
Union tort liability for “illegal”
strikes and notes the latter-day
tendency to rely on contraventions
of the procedural stipulations in the
various industrial relations statutes
as justification for attributing liabili-
ty to Unions and assessing damages
against them and their officers. The
weakness of this justification is
admirably examined by Mr. Arthurs
in his thoroughly documented
article, but it may safely be assumed
that it will continue to be used and
Unions will continue to be penalized
in damages (perhaps
in growing
measure) for such “illegal” action,
regardless of the nature of the provo-
cation and regardless of the penalties
stipulated in the various Acts which
should have, apparently, excluded
recourses to the Civil Courts. I wish
to call attention to some implications
inherent in this situation.
While Canadian corporations have
not had occasion in the recent past
to resort in large measure to lockouts
or mass firings, one wonders whether
the present state of the Law is not
such as to offer great temptations to
management to resume this practice
because of the favorable balance to
be expected in the judicial assessment
of damages. Assuming that a Com-
pany is willing to weather the
temporary storm of bad publicity
that might possibly result from what
would be declared an intemperate
action, the difficulty of proof of
damages on the part of the aggrieved
Union is such that, taking all factors
into account, it may well seem to
be one of the better calculated risks
intensified
in
resistance to Union demands.
the coming era of
With the jurisprudence becoming
in the assessment of
crystallized
damages against Unions, and
the
facility with which company
damages may be calculated in the
modem era of cost accounting, the
likelihood of Companies recovering
substantial sums from the now
solvent, and often wealthy, Unions
is encouraging. Elaborate accounting
techniques can establish the losses
on an hourly basis for interruptions
of production, and seasonal com-
parisons with previous years, juxta-
posed with general economic indices,
can fix profit losses within a very few
points of percentage error for any
given lost day or days in the year.
The Courts which might be inclined
to penalize Unions in disputes of this
sort (and Mr. Arthurs indicates that
they have not been rare, despite the
tortuous reasoning often required to
reach the desired conclusion) are in
a better position than ever to have
their assessments of quantum un-
challenged.
The Unions, on the other hand,
are virtually unable to assess the
true extent of the intangible damages
suffered by them because of illegal
firings amounting to partial or com-
plete lockouts and resulting in lost
contests and destruction of their
bargaining power.
No. 1]
CORRESPONDENCE
For in what would such damages
consist? The first practical effect that
comes to mind in the event of firings
successful enough to break the power
of the Union in the plant concerned
is that the remaining members would
become disillusioned because of the
inability of their Union to have done
anything constructive for them. That
the Law is such that the Union could
not do anything for them is hardly a
satisfactory explanation to the
members.
One can imagine the meeting of
the Locals where the workers, de-
prived of their pay cheques, in
mounting insecurity and fear, are
obliged to listen to Union counsel
or officials explain at length that the
cases for reinstatement will not be
instituted: that it is the considered
opinion of the officials concerned
that such cases could not have been
won, because the Union was obliged
to prove beyond reasonable doubt
that the one motive among the many
available that prompted the Com-
pany officials to dispense with the
services of X, Y or Z was that the
unfortunates were members of a trade
union; that there were a dozen good
reasons justifying dismissal that
could have been chosen by manage-
ment, and two dozen bad ones that
could not be disproven; that, failing
an outright admission by any one of
the Company officials, the pure dis-
crimination motive charged was only
speculative and not sufficiently com-
pelling for the Judge to order re-
instatement;
the
Judge could not really be blamed in
finding that the Union had not dis-
charged its burden of proof because
that, of course,
after all, the circumstances behind
the crisis were not completely one-
sided and uncomplicated (they never
are), etc., etc. The overall impression
of the few facts that would penetrate
the haze of doubt and suspicion
would be the confirmation of the
gnawing fear that the Union was, in
fact, impotent and that their loss of
confidence was justified.
The only translatable financial
effect of this demoralization on the
Union affected is that the remaining
plant workers (if they remained with
the Union altogether) would
moderate their demands at the next
wage negotiations to such a point
as not even to incur the risk of
exciting the possible displeasure of
the Company and minimal wage
increases would mean minimal in-
creases in dues payments –
in those
very few cases where dues are a
percentage of wages. The difference
between dues expected and dues
achieved would be the extent of the
a very vulnerable, if not
damages –
impossible, claim.
Where the dues are fixed, there
would be no loss whatever that the
Union could claim.
If the Union was ousted from the
plant altogether, it might con-
ceivably (after thousands in law costs
had been spent) be able to claim a
loss of revenue equivalent to the dues
that would otherwise have been
received, but the chances of success
are so remote and the amount so
insignificant compared to lessened
wage increases that any previously
aggrieved or determined management
might consider it an extraordinarily
McGILL LAW JOURNAL
[NV01. 7
worthwhile expenditure. Further-
more, the management might prefer
to deal with a thus chastened and
weakened Union group that harbour-
ed the personal memory of the set-
back rather than a new, militant
organization, and there would not
be even the loss mentioned if the
Union continued to represent the
workers in the plant.
The other practical effect, that the
organizing ability of the Union in
other industries or plants was im-
paired, can hardly be estimated.
There is no guarantee that the Union
would have been able, due to a
successful outcome of the negotia-
tions, to have advanced with un-
abated prestige to greater organizing
activities and hence greater income.
too speculative
This is altogether
to be calculated with any accuracy
and should be dismissed.
The civil risk then, is virtually one
of being ordered to reinstate the fired
workers and paying them back
salaries –
a pittance compared to
the possible financial advantages to
be gained in breaking the bargaining
power of the Union and its hold over
its members in the plant.
In the likely absence of severe
civil consequences, we are left with
the penalties spelled out in the Acts
themselves as deterrents and
the
statutory penalties are so minimal,
and the chances of their imposition
so remote (even if processed with the
necessary prior consent of the
Minister, which consent is usually
most reluctantly forthcoming) that
some managements may well take a
long second look at the advisability,
from a long-range policy point of
view, of breaking the letter of the
law as it presently exists.
With a little judicious manipula-
tion, the most prosaic of manage-
ments can manoeuver themselves into
a position where they cannot even be
accused of excessive measures. Well-
disguised provocation by un-
warranted delays in negotiation,
assignment of Company committees
unauthorized to conclude agreements,
to
even a single firing calculated
the ire of the employee
provoke
group and to lead them to a protest
justify
demonstration which will
firing for disloyalty on a mass scale,
can all be used most effectively with
little fear of significant retaliatory
possibilities.
The
temptation of constructive
results worth hundreds of thousands
or millions of dollars is such that
the long drawn out procedures virtu-
ally condemned to futility, but if
resulting in five, fifty,
successful,
one hundred or even the rare
maximum one thousand dollar fines
would, to the less moral of manage-
ments, appear overwhelming. Hiring
replacement workers with no accrued
seniority and therefore less privileges
(in benefits and wages) is not only
not a crime, but is approved pro-
cedure even after a strike is legally
called. At the very worst, it seems,
a Company stands to come out at
least as well as it went in to such a
situation, and the chances
in the
vast majority of cases are that it
will come out infinitely better, parti-
cularly in a period of slack employ-
ment.
No. 1]
CORRESPONDENCE
That managements
in the post-
war era have not had to resort to
such possibly unpopular measures (if
the Press could be convinced that it
were in its best interests to make
them unpopular by publicly con-
demning its advertisers) is not due to
the law as much as it is due to the
fact that collective bargaining has
well served
the purposes of the
corporations who would not have
otherwise been able to exact with
approbation and apparent justifica-
increases that the
tion the price
public has experienced.
(See “Tbe
Subversion of Collective Bargaining”,
Daniel Bell, Commentary, March,
1960). That battle lines are being
more firmly drawn in the 1960s than
they were in the forties and fifties
is also quite apparent, and that more
extreme measures will be resorted to
is more than likely.
It is unfortunate that the present
state of the law is such that it seems
to offer such rewards and virtual
immunity to one party alone for its
contravention. Without discussing
the respective merits of Union or
Company arguments or justifications,
it is apparent that the law as drafted
and interpreted is not going to be
able to cope equitably with the true
damage claims of the protagonists
or to maintain the balance which
was originally sought by legislation.
there may be a marginal
beneficial effect
in employing the
one-edged sword of massive civil
damages to diminish the stature and
strength of the few Unions of un-
savoury backgrounds and policies.
any larec-scale use of this recourse
While
will undoubtedly cripple the trade
union movement as a whole which
has had such a beneficial effect in
promoting the vitality and health
of democracy in the past generation.
If new legislation to protect Unions
is not forthcoming (and it seems
quite unlikely that it will be) the
existing balance of power in favour
of the corporations will have to be
used quite sparingly and with great
discretion by management if perma-
nent damage is to be avoided. The
larger and more responsible com-
panies are going to have to manifest
their sense of social responsibility in
controlling the more impulsive
managements at large now that it
has become apparent that Unions
can quite easily be destroyed by
being lured into suicidal strikes after
legal formalities have been observed,
or sued out of existence if contra-
vening them.
improved age
Union counter-measures
through
the law are quite illusory, and the
strike as a weapon in this techno-
logically
is vastly
reduced
in its effectiveness. U.S.
Steel operating at a break-even point
of 45% can obviously withstand a
strike or strikes for three or four
months without suffering any direct
financial loss or outlay if it operates
at capacity for several months prior
to the expected work stoppage, and
most industries, operating at a 50%
or 60% break-even point, are obliged
to lay off workers at one time or
another during the year if there
is not a strike to justify the suspen-
sion of operations.
To many observers, the spectre of
Big Labour is a fiction of the thirties
McGILL LAW JOURNAL
[Vol, 7
that no longer has the relevance that
it may have had; witness the thrash-
ing administered to the once-fearsome
Electrical Workers by General
Electric Ltd. last month.
The law designed to accommodate
the trade union movement in the days
of its growth, when organizational
problems were primary, perhaps
poses very real dangers in the sixties
when expansion has been virtually
arrested for several years now and
the problem is one of arriving at
balance, harmony and co-existence.
There is a new social situation
requiring changes for both manage-
ment and labour, and lawyers or
future lawyers called upon to act for
either party under the shaky frame-
work of the existing law are going
to have to search their consciences
as well as satisfy their sense of
professional duty to their clients in
advancing positions that can have
such far-reaching effects as striking
to the very roots of our democratic
existence.
ARTnUR F. GARMAISH
of the Bar of Quebec
A L’ADITEUR:
Je suis heureux que vous ayiez bien
voulu publier l’article de M. le
professeur Germain Brire de la Fa-
cult6 de droit de l’universit6 d’Otta-
wa, sur le mariage putatif.
Cet article est intiressant A bien
des 6gards et c’est pourquoi je re-
grette que sur certains points l’auteur
n’ait pas cru devoir nous faire une
demonstration plus complkte alors
que Ic corps de son texte le laissait
esp~rer.
Deux points en effet mritaient de
plus amples d~veloppements, a savoir:
la question de la preuve de la bonne
foi et celle de ]a ncessit6 d’une
c6klbration du mariage. Ces deux
questions pr~tent a controverse et
une analyse des motifs des dcisions
judiciaires releves par M. Bri~re efit
6t6 bienvenue.
Mais je reste persuade qu’cn cri-
vant cet article l’auteur aura su
6veiller la curiosit6 de ses lecteurs ct
spcialement celle des 6tudiants de
notre facult, noramment sur toute
la partie concernant
les effets du
mariage putatif.
Prof. L. BAuDOUIN,
Professeur de droit,
Universit6 McGill.
