WILFUL MISCONDUCT IN THE WARSAW CONVENTION:
A STUMBLING BLOCK?*
Giuseppe Guerreri**
ULEN v. AMERICAN AIRLINES’
RITTS v. AMERICAN OVERSEAS AIRLINES2
GOEPP v. AMERICAN OVERSEAS AIRLINES3
PEKELIS v. TRANSCONTINENTAL & WESTERN AIR4
RASHAP v. AMERICAN AIRLINES5
HORABIN v. BRITISH OVERSEAS AIRWAYS CORPORATION 6
These six cases, five American and one British, deal with and separately
define “wilful misconduct”. This subject which is of a very great importance
,has been an issue in many written works and divergent interpretations have
been rendered upon it under systems of Civil Law and of Common Law.
A certain variance can even be found among the five American decisions
but all of these seem to refer to wilful misconduct as a concept including the
concepts of “dol” and “faute lourde” at the same itime.
,It appears necessary to analyze directly every single situation in which
wilful misconduct is involved if we are to understand clearly its concept.
1. In Ulen v. American Airlines the Court of Appeals judge said referring
whole-heartedly to the jury instructions at the trial:
. .
. if the carrier or its employees or agents wilfully performed any act
with the knowledge that the performance of that act was likely to result in
injury to a passenger, or performed that act with reckless and wanton disregard
of its probable consequences, then that would constitute wilful misconduct and
if the result of that wilful misconduct was injury to Mrs. Ulen then her recovery
.
would not be limited by this sum of some eight thousand dollars .
. Now the
. even
if intentional
mere violation of those [safety rules and regulations]
the violation was
would not necessarily constitute wilful misconduct, but if
.
.
*This work is part of a more comprehensive thesis by the same author which will
soon appear under the title “American Jurisprudence on the Warsaw Convention”
as Publication No. 6 of the Institute of Air and Space Law, McGill University.
**B.C.L. Rome University, Italy; Member of the Rome Bar; Assistant, Institute
of International Air Law, Rome University; Research Assistant, Institute of Air and
Space Law, McGill University, Montreal, Canada.
1U.S.D.C., District of Columbia, April 20, 1948; 1948 U.S.Av.R. 161. U.S. Court
of Appeals, District of Columbia, September 26, 1949; 1949 U.S.Av.R. 338.
2U.S.D.C., Southern District of N.Y., January 17-18, 1949; 1949 U.S.Av.R. 65.
3 State of N.Y., N.Y. County, Supreme Court, October 25, 1951 and January 7,
1952; 1951 U.S.Av.R. 527. State of N.Y., Appellate Division, 1st Dept., December 16,
1952; 1952 U.S.C.Av.R. 486.
4U.S.D.C., Southern District of N.Y., March 8, 1950; 1950 U.S.Av.R. 296. U.S.
Court of Appeals, Second Circuit, February 15, 1951; 1951 U.S.Av.R. 1.
5U.S.D.C., Southern District of N.Y., October 5-13, 1955; 1955 U.S.C.Av.R. 593.
GTJnited Kingdom of Great Britain and Northern Ireland, Queen’s Bench Division,
London, November 6, 1952; 1952 U.S.C.Av.R. 549.
McGILL LAW JOURNAL
[Vol. 6
intentional with knowledge that the violation was likely to cause injury to a
passenger, then that would be wilful misconduct and, likewise, if it was done
with a wanton and reckless disregard of the consequences.
Appellant’s claim of limited liability in this case was so precluded under
art. 25 of the Convention which makes
the carrier liable for the whole
damage when the latter was caused -by his wilful misconduct or by a default
on ,his part as is considered to be equivalent to wilful misconduct.7
The passenger’s ticket entitled Mrs. Ulen to transportation from Washington,
D.C. to Mexico -City, Mexico. The plane crashed a few hours after take-off
close to the summit of Glade Mountain. The plaintiff was seriously injured
in the accident while the pilot and the co-pilot died.
At the time of this flight there was in force a Civil Air Regulation pro-
mulgated by the Civil Aeronautics Board which read:
No scheduled air carrier shall be flown at an altitude of less than 1,000
feet above the highest obstacle located with a horizontal distance of 5 miles from
the center of the course intended to be flown .
.8
.
Indications and interrogatories answered by the air carrier showed that the
plane crashed at an altitude of 3,910 feet and that the mountain, 4,080 feet
high, was at most within 2 miles from the course scheduled and in fact flown
by the aircraft. The defendant admitted its liability within the limits of the
Warsaw Convention and showed full knowledge of its actions answering that
the same pilot had flown this same route in the same manner several times
before.
The District Court for the District of -Columbia found for plaintiff and
fixed the recovery beyond the limits of the ‘Convention, applying art. 25.
The defendant air carrier appealed the judgment and the Court of Appeals
re-examined the entire case with regard to the carrier’s wilful misconduct.
The appellant contended that its liability was ‘limited unless it could “be
successfully shown that the pilot or other agents of appellant, with malicious
or felonious intent, planned to fly the plane into the mountain to the injury
of its passengers”. In other words, under art. 25 the carrier should be found
guilty of “well-nigh criminal intent” before losing the privilege of limited
liability. The plaintiff-respondent argued that a regulation had been definitely
violated in the planning and executing of ,the flight, with full knowledge or
complete disregard of its consequences; all of which certainly constituted wilful
misconduct. The Court of Appeals, accepting the trial court’s definition of
wilful misconduct, confirmed the judgment in favour of the plaintiff-respondent
beyond the limits of the Warsaw :Convention.
7See, for an historical account of the interpretation of art. 25 Warsaw Convention,
de Juglart: Dol et faute lourde dans le transport arien international, Juris Classeur
P~riodique 1952, I, 1010 and Traitg Elimentaire de Droit Arien, (Paris 1952), 309;
Chauveau: L’accident des Agores et la responsabilit6 du transporteur arien, [1952]
Revue Franaise de Droit Adrien, 239.
SEffective May 7, 1943, 8 Fed. Reg. 6589.
No. 4]
WARSAW CONVENTION
The decision must be regarded as one of the clearest on “wilful misconduct”.
The flight of an aircraft at an altitude which does not permit it -to pass
over the obstacles along the route flown may involve the crew’s negligence.
But if a regulation, the only purpose of which is safety, has been intentionally
violated with knowledge that such a breach is likely to cause injury to
passengers, one cannot but infer wilful misconduct on the part of a person
so acting.
This misconduct existed in all its elements in the flight plan (which referred
to an altitude not sufficient to pass over the mountain) as well as in the
executing of the flight (no attempt whatsoever was made by the pilot to
increase altitude) and considering the regulation then in force, the case fell
certainly under art. 25 of the Warsaw Convention. 9
2. The judge’s instructions in Ritts v. American Overseas Airlines read:
.
Wilful misconduct .
indifference to the safety of human
. covers in the court’s opinion not only acts done
deliberately but also acts of carelessness without regard
to the consequences.
It has been defined as that degree of neglect or conduct arising where there is a
reckless
life, or an intentional failure to
perform a manifest duty to the public, in the performance of which the public
and the party injured had an interest. To constitute wilful injury the act which
produces it must have been
intentional or must have been done under such
circumstances as to evidence a reckless disregard for the safety of others and
a willingness to inflict the injury complained of because of that wilful disregard…
Wilful misconduct is something entirely different from negligence and far beyond
it, whether the negligence be culpable or gross; it involves either a deliberate
intent to commit injury or intentional misconduct which is so reckless and wanton
as to imply a willingness to commit injury or a complete disregard for the natural
consequences of the act.
These words provide for two types of conduct, both within the legal concept
of wilful misconduct:
(a) an act deliberately done with the intention of committing injury;
(b) an act so reckless and wanton as to imply such an intention or a
complete disregard for the natural consequences of that act.
The difference between the two types can be found in the psychological
attitude which determines the act of sub-paragraph (a) on one hand, and can
only be inferred or entirely absent in that of sub-paragraph (b) on the other.
The distinction will be understood in its full importance in the discussion
which follows.
3.
In Goepp v. American Overseas Airlines the New York Appellate
Division Court reversed the trial judgment and reduced the award for damages
to the limits under the Warsaw ,Convention. The Appellate decision reads:
t .
. in order that an act may be characterised as wilful there must be on
the part of the person or persons sought to be charged a conscious intent to do
or to omit doing the act from which harm results to another, or an intentional
omission of a manifest duty. There must be a realization of the probability of
9Accord: Sullivan: Codification of Air Carrier Liability by International Convention,
[1936] Journal of Air Law, 44.
Contra: Goedhuis: National Airlegislations and the Warsaw Convention, (The Hague
1937) 272.
McGILL LAW JOURNAL
[Vol. 6
.
injury from the conduct and a disregard of the probable consequences of such
conduct .
. In their excellent treatise on Air Law (2nd ed. 1951) Shawcross
and Beaumont at page 345 state the meaning of the term wilful misconduct as
related to the text of the Warsaw Convention as follows: “The effect of the
English Authorities appears to be that in English law wilful misconduct means
a deliberate act or omission which the person doing or omitting (i) knows is a
breach of his duty in the circumstances; or (ii) knows is likely to cause injury to
third parties; or (iii) with reckless indifference does not know or care whether
it is or is not a breach of his duty or is likely to cause damage.
It is submitted that wilful misconduct can either be established by evidence
or inference of the wilful intent of the person involved or by a complete
disregard for the consequences of such doing or omitting. A conscious intent
to cause injury or the inference of such an intention goes beyond what is
usually described as gross negligence.
It is to be observed that the Shawcross-Beaumont definition considers a
deliberate “breach of duty in the circumstances” as constituting wilful mis-
conduct. We do not agree that a neglect of duty or regulation whatever it
may be may of itself constitute misconduct which is wilful; on the contrary
such a breach of duty must be accompanied by a knowledge of the consequences
which will probably ensue. Without this realization neither the intention to
harm nor a disregard for the result of the act or its omission could be inferred,
and -the breach of duty could not then be classified as wilful misconduct.
Briefly though vaguely it has been said that “. .
. wilful misconduct means a
deliberate purpose not to discharge some duty necessary to safety.”‘ 0
It is not advisable when trying to classify human behaviour to stress the
objective element (violation) and thus to neglect the subjective elements
(recklessness, wantonness) ; this might lead to numerous but not always exact
interpretations.
It is finally to be noted that the Ritts and Goepp cases involved the same
air accident It is interesting to compare the conflicting decisions, both rendered
in the State of New York in 1949 and 1952. In the Ritts case the jury found
for the defendant air carrier exempting it from liability under art. 20 (1) of
the Warsaw ‘Convention; in the Goepp case the verdict for plaintiff of $65,000
was reversed on appeal and the recovery was reduced to the maximum com-
pensation as established under art. 22 of the Convention. The second Court, it
is submitted, should have known of the previous decision when deciding the
Goepp case. It is possible that a variance in the claims and the attitudes of
different juries to the facts and circumstances adduced in evidence at separate
trials may have brought about the conflicting verdicts..
4. The instructions to the jury given by the lower Court (the case was
reversed because of the wrongful exclusion of evidence) in Pekelis v. Trans-
continental and Western Air point out all the elements which must be found
in order to establish wilful misconduct. Particular attention is given to the
‘ORowe v. Gatke Corporation, 126 F (2nd) 61, 66 1942.
No. 4]
WARSAW CONVENTION
uninterrupted sequence which must exist between legal (proximate) cause of
the event and the event itself in order to affirm that the former caused the
latter.
Wilful misconduct is the intentional performance of an act with knowledge
that the performance of that act will probably result in injury or damage, or it
may be intentional performance of an act in such a manner as to imply reckless
disregard of the probable consequences of the performance of that act. Likewise,
the intentional omission of some act with knowledge that such omission will probably
result in damage or injury, or the intentional omission of some act in a manner
from which could be implied reckless disregard of the probable consequences . . .
If, however, you find that the defendant or any of its employees, committed one
or more acts of wilful misconduct, then you must go on to consider whether or not
such wilful misconduct as you have found was the proximate or legal cause of the
death of Mrs. Pekelis. Now, to be the legal cause of this result . . . the wilful
misconduct must be a substantial factor in bringing about that result. Furthermore,
there must also be an actual and continuous sequence connecting the act of wilful
misconduct with the death of Mrs. Pekelis. I say that the wilful misconduct must
be a substantial factor in bringing about the death. You will note I did not say
it must be the sole substantial factor contributing to the death. In other words, if
you find that wilful misconduct by the defendant or any of its employees was a
substantial contributing factor to the death of Mrs. Pekelis, that is sufficient to
sustain the plaintiff’s claim, even though you may find that there were also other
substantial contributing factors . ..
5.
In the most recent case, Rashap v. American Airlines, the same clear
notion of wilful misconduct has been substantially affirmed:
Wilful ordinarily means
intentional, that the act that was done was what
the person doing it meant to do. But the phrase “wilful misconduct” means something
more than that. It means that in addition to doing the act in question, the person
must have intended to do the act, or launched on such a line of conduct with
knowledge of what the consequences would be and went ahead recklessly, despite
his knowledge of these conditions. So you can see that there are three elements
to wilful misconduct: the first is an intent to do that act; the second is an awareness
of the consequences of the act and a deliberate or reckless determination to do
it regardless of the consequences; and the third is that the accident must be a result
of all of the act.-1
It is once again clear that wilful misconduct means a deliberate breach of
duty (act or omission) with knowledge that injury to third parties will
probably ensue or with reckless indifference of the probable consequences.
6. Horabin v. British Overseas Airways Corporation constitutes the first
attempt made by a British court to interpret art. 25 of the Warsaw ‘Convention
embodied in the Carriage by Air Act, 1932.
It will be noticed that, under the Common Law, the notion of wilful mis-
conduct has acquired a certain conceptual uniformity both in the United States
and in the United Kingdom, though the language used may sound a little
different.
The judge, giving extended and detailed instructions to the jury on the
subject of wilful misconduct, pointed out that:
In order to establish wilful misconduct
the plaintiff must satisfy you that
the person who did the act knew at the time that he was doing something wrong
and yet did it notwithstanding or, alternatively, that he did it quite recklessly, not
IlThe instructions seem to refer extensively
Froman case, 1953 U.S. C. Av. R. 1.
to the charge to the jury
in the
McGILL LAW JOURNAL
[Vol. 6
caring whether he was doing the right thing or the wrong thing, quite regardless
of the effects of what he was doing . . . To be guilty of wilful misconduct the
person concerned must appreciate that he is acting wrongfully or he is wrongfully
omitting to act, and yet persists in so acting or omitting to act regardless of the
consequences, or acts or omits to act with reckless
indifference as to what the
result may be.
7. The main objections raised ‘by the American Airlines in the Ulen case
(the word “dol” as it appears in the original French of the Warsaw Convention
is improperly translated “wilful misconduct” when its real significance is better
represented by “fraud” or “deceit”) referred obviously to a question which
only recently has found a sound and satisfactory resolution through many
international debates.
The concepts of “dol” and “faute lourde” were discussed at length at the
Second International Conference on Private Air Law held at Warsaw, October
1929; ‘the main problem there concerned the exact translation of these concepts
into English. After some days of debating, the British delegate
to the
Conference declared:
We have in our law the expression “wilful misconduct”. I believe that it
comprehends all you want to say: it includes not only acts wilfully performed, but
also acts of carelessness with disregard of the consequences . . . We have in
order to translate those words into English the expression “wilful misconduct”
which is well known and well defined in our law.12
The difficult problem could ‘be considered as solved after -this clear statement:
the concepts of “dol ou faute lourde” in the Roman Law systems were said
to be entirely comprehended
in the “wilful misconduct” of Common Law
systems.
Nevertheless, many authors have pointed out the necessity of revising the
Warsaw Convention since art. 25 has raised, in their opinion, great difficulties
mainly for two reasons: the impossibility of translating into English the concepts
of “dol ou faute 6quivalente au dol” and the many divergent interpretations
of these words given by the courts of many countries.13
As a result of these comments, the I.C.AO.. Legal Committee, which had
been engaged in the revision of the Convention for many years, proposed and
approved (with a majority of one vote after a much heated discussion among
delegates) a draft protocol, art. 25 of which read:
The limits of liability specified in art. 22 of the Convention shall not apply
if it is proved that the damage resulted from a deliberate act or omission of the
carrier, his servants or agents, done with intent to cause damage; provided that,
in the case of a deliberate act or omission of a servant or agent, it is also proved
that he was acting in the course of his employment.’ 4
1211 Conference Internationale de Droit Priv6 Arien, Varsovie 4-12 Octobre, 1929,
40, 140. (Author’s translation from the French text).
U3 See, inter alia, Goedhuis: op. cit. 272. Beaumont: Need for Revision and Amplifica-
tion of the Warsaw Convention, [1949] Journal of Air Law and Commerce, 395;
Goodfellow: Dol, Wilful Misconduct and the Warsaw Convention, [1950] Interavia, 55.
14Draft Protocol to Amend the Convention for the Unification of Certain Rules
relating to International Carriage by Air signed at Warsaw October 1929, approved
by the I.C.A.O. Legal Committee at Rio de Janeiro, Aug.-Sept. 1953, I.C.A.O. Doc.
7450 – LC/136, I, XIX-XXIV.
No. 4]
WARSAW CONVENTION
This new formula would have brought about a fundamental change in the
system relating to liability in international air transportation: the Warsaw
formula (“dol ou faute 6quivalente au dol”) would be abandoned and the air
carrier would be held responsible without any limit only in case of an act
on its part, or on the part of its agents and servants, which could be qualified
as a criminal act.
Many authoritative commentators criticised the draft protocol severely;15
they observed that the terms “dol ou faute lourde 6quivalente au dol” had fairly
exact connotation in the English language and that in many cases reference had
been made to “wilful misconduct” as comprehending both those concepts. 16
Moreover, in -the cases decided by the courts of different countries concerning
art. 25 of the Warsaw Convention, 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’.
15See, inter alia, Ambrosini: Dolo e colpa grave nella elaborazione delle convenzioni
internazionali aviatorie, Nuova Rivista di Diritto Commerciale, Diritto dell-Economia,
Diritto Sociale, VIII, [1955] 83; Meyer, Chambre de Commerce Internationale, Com-
mission de Transport par Air, R~union du 13 Janvier 1952, C.C.I. Doc. 310/55, 78.
16Ambrosini: op. cit., 86; Radin: Law Dictionary, Oceana Publication, (New York
1955) “Dolus”.
The United Kingdom enacted the Carriage by Air Act, 1932, with the purpose of
giving effect to the Warsaw Convention of 1929 as part of English law. In pursuance
of the power given by section 4 to extend the Act to non-international carriage, the
Carriage by Air
(United Kingdom) Order, 1952, has been
enacted.
(Non-International)
See also: La responsabilit6 du transporteur du chef des dommages subis par les
passagers sur leurs personnes, U.D.P. Doc. 1955, ET/XXXIV, Doc. 1, Unidroit Rome,
Mars 1955, page 32:
“In article 25 of the Convention, concerning cases of unlimited liability, we have
set aside the assimilation of “faute lourde” to “dol”, cancelling the words “. .
. .or by
. .”; this change of the regime established in the Convention may be
such default etc .
justified if it is considered that the expression “wilful misconduct” (used to translate
the word “dol”) comprehends also the concept of “faute lourde”
in its element of
reckless carelessness”. (Author’s translation from the French text).
See, also, Pollock: The Law on Torts, (London 1923), 444; McNair: The Law of
the Air, (London 1953 (2nd Ed.)), 203-204:
“It seems clear that, before an English court will hold that there has been “wilful
misconduct”, the court must be satisfied that the damage was not merely the result
of an accident, or even of negligence alone. The probable consequences of the wrongful
act must have been in the mind of the person in question. Clearly, if he does the act
knowing it to be wrongful, and intending the harmful consequences which result, he is
guilty of wilful misconduct. But his behaviour will also fall under this rubric, even
if he does not deliberately desire the consequences, but is merely recklessly indifferent
as to whether or not they ensue. Only if the act or omission was due to complete
inadvertence on his part will the court refuse
to hold that there has been wilful
misconduct.”
McGILL LAW JOURNAL
[Vol. 6
Of the many American cases two only have been found in which art. 25
-has ‘been applied, and in one of them the judgment was reversed on appeal. 17
The jurisprudence in other countries (France, United Kingdom, Italy) con-
firms once more the ex-treme prudence of the courts when considering art.
25.18 This is evidence of the fact that the courts have always found the exact
rule to apply in each case, thus confirming the essential equity of the provisions
of the Warsaw Convention.
The above-mentioned objections, authoritatively expressed at the Hague
‘Conference in September 1955, resulted in -the draft protocol, as approved by
the I.,C.A.O. Legal ,Committee during the Rio session, being -rejected.
Many -had soundly observed that, under the Rio formula, the carrier would
limits’9 as it is almost
very rarely be found liable beyond the Warsaw
inconceivable that a crew member would commit an act or omission with the
intent ,to injure anyone thus causing an air accident in which, in most cases,
he himself would lose his life as well.
The greatest difficulty would then arise when proving the carrier’s wilful
misconduct (in the absurd instance given above) ; the burden placed upon the
plaintiff would constitute a sort of “probatio diabolica” almost an impossibility
to obtain from the disastrous ruins which such accidents normally yield.
In the Protocol to Amend the Warsaw ‘Convention, signed at The Hague,
September 1955, art. 25 was so modified:
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 an act or omission
of a servant or agent, it is also proved that he was acting within the scope of
his employment.
Initially art. 25 (1) of the Warsaw ‘Convention provided:
17Supra, footnotes 1 and 3.
‘sFrance: Courts exempted the carrier from wilful misconduct
in Soc. Nordisk
Transport v. Air France, [1953] Revue Franraise de Droit A6rien, 105; in Croche
Hennessy v. Air France, [1952] Revue Frangaise de Droit Arien, 199;
in
Del Vina v. Air France, [1954] Revue Franaise de Droit A6rien, 191. The carrier
was ‘held guilty of wilful misconduct in Gallais v. SociatM X, [19541 Revue Frangaise
de Droit Arien, 184; in Missirian v. Air France [1956] Revue G&i6rale de l’Air, 67.
United Kingdom: Wilful misconduct on the part of the carrier was excluded in
Horabin v. B.O.A.C.,
[1952] 2 All E.R. 1016; 1952 U.S.C.Av.R. 549.
19 Ambrosini: op. cit., 88; Comments of the German Federal Authorities at Hague
Conference, The Hague Conference, I.C.A.O. Doc., I, 88:
“According to the Additional Protocol the carrier shall incur unrestricted liability
only if it can be proved that he has caused the damage with malice aforethought and
with the intention to cause damage. It will hardly ever be possible to furnish such
proof. Practically then no unrestricted liability on the part of the carrier will exist
any longer …
It appears therefore inacceptable that the carrier shall incur unrestricted
liability only if and when proof can be furnished that he had the intention to cause
damage.”
No. 4)
WARSAW CONVENTION
The carrier shall not be entitled to avail himself of the provisions of this
Convention which exclude or limit his liability, if the damage is caused by his
wilful misconduct or by such default on his part as, in accordance with the law
of the Court seized of the case, is considered to be equivalent to wilful misconduct.
The comparison of the two texts of art. 25 shows that in the Protocol
neither the word “dol” nor the phrase “faute 6quivalente au dol” have been
used, thus avoiding any further discussion on the subject among delegates of
different countries.
The words disappeared but, instead, the concepts have been incorporated
in the text as clearly as possible in order to avoid further differences of
interpretations under different legal systems.
The fault depriving the carrier of the benefit of a limited liability must now
be reckless and accompanied with the knowledge of the probable consequences.
Moreover, the case of an act intentionally performed to cause damage fits the
universally accepted concept of “dol”.
Ainsi l’article 25 nouveau traduit en prcisant et en limitant les contours la
notion de “wilful misconduct” appliqu6e par les juges Anglo-Saxons, sans pour
autant s’6loigner sensiblement de la jurisprudence frangaise statuant au cours de
impliqu6es par les grands sinistres
ces derniares anmes sur les responsabilit6s
ariens qui ont endeuill6 l’aviation nationale.20
In the most recent French cases, mainly in the Paris Court of Appeals
judgment February 3, 1954 (Hennessy v. Air France) a tendency can be
found directed to confine “faute lourde” within well determined limits and
boundaries; in general, a limited interpretation is given ‘which causes the
concepts of “faute lourde” and “wilful misconduct” to meet in the end. A clear
legal
equivalence of ideas has been at last accomplished through different
systems.
The Romans considered the “culpa lata” as enacted in the ,Civil Law
systems as equivalent to “dol” mainly for a psychological reason; the “culpa
lata” being so reckless and enormous
… it is almost impossible to realize whether the act or omission had been only
wilfully committed or done also to harm others, as in case of “dol”. Hence the
“dol” could be soundly suspected and taken for granted . . .21
When reference is made to the “impression of immorality” 22 produced by
wilful misconduct, it is submitted that the Roman concept is expressed in
different words; only the fault which is reckless and enormous is equivalent to
20″Thus the new article 25, in defining and limiting the extent, conveys the notion
of wilful misconduct as applied by the anglo-saxon judges, without significantly departing
from the French jurisprudence handed down in recent years on the matter of res-
ponsibility arising from air catastrophes which have plagued national aviation.” (Author’s
translation).
Garnault: Le Protocole de La Haye, [1956] Revue Frangaise de Droit Arien, 6.
2 1Ambrosini: op. cit., 91.
22Goedhuis: op. cit., 276.
276
McGILL LAW JOURNAL
[Vol. 6
“dol” because it produces the same impression of enormity which usually
would result from an act or omission amounting in law to wilful misconduct.
Thus the idea of “culpa lata” is above any national legal definition and
becomes a general principle common to all legal systems.
Et ce ne serait pas une des moindres gloires du Droit Romain que de servir,
aujourd’hui encore, de commune mesure, d’l&nent de mutuelle comprehension et
d’unification, entre les divers peuples et leurs lgislations23
The ideas of “dol” and “faute lourde
iquivalente au dol” are perfectly
combined in the concept of “wilful misconduct”; this shows that men can
always agree upon general principles which are commonly acceptable, in the
progressive study of law.
23″And this will not be one of the least of the legacies of Roman Law, than to have
it still serve today as a common measure, an element of mutual understanding and
unification among different peoples and their legal systems.”
(Author’s translation).
Comment on the Paris Court of Appeals decision February 3, 1954; [1954] Revue
Frangaise de Droit Arien, 75.
