Rose CJ:

On 31 March 1951 the plaintiffs-respondents delivered to the defendantsappellants a case of watches for carriage by air from Geneva to Singapore. The nature and value of the consignment are not in dispute, nor is the fact that the consignment never reached its destination.

It is common ground between the parties that the carriage in question was an international carriage within the meaning of the Convention relating to International Carriage by Air which was signed in Warsaw on 12 October 1929 and that the provisions of the Convention apply to the present contract. It is, moreover, agreed that the contract was made subject to the appellants' general conditions of carriage of goods, so long as such conditions were not inconsistent with the provisions of the Convention.

In the trial Court the appellants raised a number of grounds on which they contended that their liability was excluded, but upon appeal only a single ground was raised.

Article 12(1)(c) and (d) of the general conditions reads as follows:

(c) In case of non-arrival or non-delivery, the person entitled to delivery must complain to the carrier not later than 120 days after the date of acceptance of the consignment by the carrier.

(d) Failing complaint or claim in writing as provided in the foregoing subparagraphs, no action shall lie against the carrier, save in the case of fraud on its part.

The respondents concede that no complaint or claim in writing was sent to the appellants within the prescribed time.

Article 23 of the Convention, upon which the respondents rely, reads:

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain Subject to the provisions of this convention.

I would observe that there is no provision in the Convention prescribing what notice, or the period of time within which any notice should be given in the event of loss or non-delivery of goods. Article 26 of the Convention lays down that in the case of delay in the delivery of goods complaint must be made within fourteen days from the arrival of the goods; and in the case of damage, within seven days of the receipt of the goods. Article 29 provides a two-year period of limitation within which any action for damages in respect of a contract of carriage must be instituted.

No decided case was cited to us covering this particular point. At p. 338 of their book on Air Law Messrs Shawcross and Beaumont refer to two United States cases in which the Courts declined to strike out defences based on conditions in the contract that claims are not to be maintainable unless notice is given to the carrier within thirty days of the accident. The reports of these cases have not been made available to this Court and it may well be that the matter was purely procedural, from which no inference can be drawn as to the ultimate view that the Court would take of the question posed. It is perhaps of interest to note that the authors go on to say: "It is submitted that the English Court might hold that such a condition was a `provision tending to relieve the carrier of liability', and therefore void under Article 23 (in the case of claims for damage or delay to luggage or goods, however, the Act itself requires a `complaint' to be made within certain specified periods)."

Assistance in the matter may perhaps be considered to be provided by the case of Australasian United Steam Navigation Co. Ltd. v. Hunt [1921] 2 AC 351. Section 4 of Fiji Ordinance XIV, of 1906, which is substantially the same as the Sea-Carriage of Goods Act, 1904, of Australia, provides that where any bill of lading contains any clause whereby the obligation of a shipowner, inter alia, to make and keep the ship's refrigerating chambers fit for the carriage and preservation of the goods should in any wise be weakened,