Clarke v Silkair: Limitation of Liability for Air Crash Deaths under Warsaw Convention

Beryl Claire Clarke, as personal representative of the Estate of the Late Eugene Francis Clarke, and others, sued Silkair (Singapore) Private Limited in the High Court of Singapore on 24 October 2001, seeking damages for the deaths of passengers in an air crash. The plaintiffs argued that SilkAir could not limit its liability under the Warsaw Convention and the amended Convention due to the pilots' wilful misconduct or recklessness. The court dismissed the plaintiffs' claim, finding that the cause of the crash was not proven and SilkAir was not barred from limiting its liability.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

The plaintiffs' claim against SilkAir is dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Claims by personal representatives of passengers who died in an air crash. The court considered whether SilkAir could limit its liability under the Warsaw Convention.

1.7 Decision Date

23 October 2001

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Beryl Claire Clarke (as personal representative of the Estate of the Late Eugene Francis Clarke)	Plaintiff	Individual	Claim Dismissed	Lost	Josephine Low of Michael Khoo & Partners Andy Chiok of Michael Khoo & Partners Michael Khoo, SC of Michael Khoo & Partners
Silkair (Singapore) Private Limited	Defendant	Corporation	Judgment for Defendant	Won	Lok Vi Ming of Rodyk & Davidson Joanna Foong of Rodyk & Davidson Ng Hwee Chong of Rodyk & Davidson

3. Judges

Judge Name	Title	Delivered Judgment
Tan Lee Meng	Judge	Yes

4. Counsels

Counsel Name	Organization
Josephine Low	Michael Khoo & Partners
Andy Chiok	Michael Khoo & Partners
Michael Khoo, SC	Michael Khoo & Partners
Lok Vi Ming	Rodyk & Davidson
Joanna Foong	Rodyk & Davidson
Ng Hwee Chong	Rodyk & Davidson

4. Facts

SilkAir Flight MI 185 crashed near Palembang, Sumatra on 19 December 1997.
The aircraft was a Boeing 737-300, registration number 9V TRF.
The flight recorders stopped recording several minutes before the crash.
The horizontal stabilizer trim was found to be in a nose-down position.
The NTSC was unable to determine the cause of the crash.
The NTSB suggested the crash was due to intentional pilot action.
The plaintiffs alleged wilful misconduct or recklessness by the pilots.

5. Formal Citations

Beryl Claire Clarke (as personal representative of the Estate of the Late Eugene Francis Clarke) v Silkair (Singapore) Private Limited, Suit 1746/1999, 1748/1999, 1749/1999, 1750/1999, 1751/1999, 1752/1999, [2001] SGHC 326

6. Timeline

Date	Event
1997-12-19	Air crash near Palembang, Sumatra
1999-03-25	NTSC disclosed that the aircrafts CVR and FDR stopped recording several minutes before the crash
1999-08-25	NTSC revealed that the horizontal stabilizer of the aircraft had a nose-down trim
1999-08-25	Singapore's accredited representative lodged a police report
2000-12-14	NTSC issued its Final Report
2000-12-11	United States NTSB disagreed with the conclusion of the NTSC
2001-06-08	Suits consolidated
2001-10-24	Judgment issued

7. Legal Issues

Limitation of Carrier's Liability
- Outcome: The court held that SilkAir was not barred from limiting its liability under the Warsaw Convention and the amended Convention.
- Category: Substantive
- Sub-Issues:
  - Wilful misconduct of pilots
  - Recklessness of pilots
  - Interpretation of Warsaw Convention
  - Interpretation of Hague Protocol

8. Remedies Sought

Monetary damages

9. Cause of Actions

Damages for wrongful death

10. Practice Areas

Commercial Litigation
Aviation Litigation

11. Industries

Aviation

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Caswell v Powell Duffryn Associated Collieries Ltd	House of Lords	Yes	[1940] AC 152	England and Wales	Cited for the principle that inference must be based on objective facts, not conjecture or speculation.
Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd	Court of Appeal	Yes	[2001] 1 SLR 241	Singapore	Cited for endorsing the approach in Goldman v Thai Airways International Ltd and SS Pharmaceutical Co Ltd v Qantas Airways Ltd regarding the knowledge required to prove recklessness under the amended Convention.
Goldman v Thai Airways International Ltd	Court of Appeal	Yes	[1983] 3 All ER 693	England and Wales	Cited for outlining the elements a plaintiff must prove to deny a carrier the right to limit liability under the amended Convention.
SS Pharmaceutical Co Ltd v Qantas Airways Ltd	Supreme Court of New South Wales	Yes	[1991] 1 Lloyds Rep 288	Australia	Cited for stating that proof of reckless conduct alone is insufficient to deny a carrier the right to limit liability under the amended Convention; knowledge of probable damage is also required.
Hornal v Neuberger Products Ltd	Court of Appeal	Yes	[1957] 1 QB 247	England and Wales	Cited for the principle that issues affecting character and reputation in civil actions require careful consideration of probabilities.
Bater v Bater	Court of Appeal	Yes	[1951] P 35	England and Wales	Cited for the principle that the degree of probability required in civil cases depends on the subject matter, with a higher degree required for charges of fraud.
Horabin v British Overseas Airways Corporation	High Court of Justice	Yes	[1952] QBD 1016	England and Wales	Cited for defining 'wilful misconduct' under the Warsaw Convention as misconduct to which the will is a party, distinct from mere negligence or carelessness.
Thomas Cook v Air Malta	High Court of Justice	Yes	[1997] 1 Lloyds Rep 399	England and Wales	Cited for elaborating on the definition of 'wilful misconduct,' including intentional acts, failures, or omissions, and reckless carelessness.
Rhesa Shipping Co SA v Edmunds and Another (The Popi M)	House of Lords	Yes	[1985] 2 All ER 712	England and Wales	Cited for the principle that a court may conclude that the cause of an event remains in doubt, even after extensive inquiry, leading to a failure to discharge the burden of proof.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Carriage by Air Act (Cap 32A, 1989 Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Warsaw Convention
Hague Protocol
Limitation of liability
Wilful misconduct
Recklessness
Air crash
Flight recorders
Horizontal stabilizer
Pilot action
NTSC
NTSB

15.2 Keywords

Air crash
SilkAir
Warsaw Convention
Limitation of liability
Wilful misconduct
Recklessness
Singapore
Aviation accident
Pilot error

17. Areas of Law

Area Name	Relevance Score
Aviation Litigation	80
Aviation Law	75
Wrongful Death	40
Personal Injury	30
Contract Law	20
Torts	20
Insurance	15
Admiralty and Maritime Law	10

16. Subjects

Aviation
Carriage of Goods
International Law
Civil Aviation
Accident Law