Spirit Airlines, Weightlifting and Mail

My co-worker and good friend Sarah has recently completed a trip to the United States.  Unfortunately, thanks to the sterling work of Spirit Airlines, she returned with only the clothes she was wearing and without her weightlifting gear.  She is, not unreasonably, just a little miffed.

Sorch

Long time readers may recall that I posted a note on Nicol v Air Maroc, a decision from the High Court of Sierra Leone in which an airline’s liability for the costs of lost luggage was explored.  No doubt, if all else fails, suitable litigation under the Warsaw Convention will set things to rights.  But this got me thinking: “I’m an old-fashioned sort of solicitor.  Is there an old-school way of dealing with this?”

There is, and it comes to us out of a foggy night on 5 April 1900, just off of Table Bay in South Africa.  The SS Winkfield, a troopship, collided with SS Mexican, a ship carrying passengers, freight and mail.  No lives were lost, but a quantity of mail went down with the Mexican.

SS Mexican
SS Mexican (Image from here)

Inevitably, litigation began for the value of the lost mail, lead by the Postmaster-General as bailee of the items.  Damages were agreed at £32,514, 17s 10d (current value £3,925,832.83 / AU$7,439,488.97 / US$5,052,959.06).  At first instance the claim was rejected on the grounds that, as bailee, the Postmaster had no liability for loss of the mail and therefore no standing to sue.  The Postmaster appealed.

Cockerham, Charles, active c.1900-1935; SS 'Winkfield' Bound for South Africa with Troops, July 1890
SS Winkfield (Image from here)

The English Court of Appeal (Collins MR, Stirling and Mathew LJJ) stated decisively that the Postmaster, being possessor of the mails, had a perfect right to sue for their loss.

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession is title.  The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped.

The Court also made an observation which would be on point for my friend Sarah if Spirit Airlines find they cannot come up with her belongings in a timely way.

[T]he obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned.

Loss of baggage by an airline being determined by case law from before the age of flight?  Sounds like fun to me!

The Winkfield [1902] P 42

Fractured and captured

In the leading English case of Bernstein v Skyviews & General Ltd, Griffiths J said “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height”*. The Superior Court of Pennsylvania seems to have gone in the opposite direction both spatially and jurisprudentially.

Rock Oil
Image from here

Briggs owned land in Susquehanna County, Pennsylvania. Southwestern Energy Production Co leased oil and gas rights on an adjoining parcel of land. The company extracted natural gas from below both properties using hydraulic fracturing (“fracking”). Briggs sued the company in the Court of Common Pleas for conversion of natural gas and trespass to land. The Company sought and was granted summary dismissal of the plaintiff’s claim based on the “rule of capture”. The rule of capture says that an owner (or lessee) may extract oil and gas from below ground even when doing so depletes a single reservoir of oil or gas beneath both their own and adjoining land**. The plaintiff appealed.

The Superior Court upheld the appeal and set aside summary judgment. It found that fracking was so different from conventional gas extraction that the rule of capture did not apply –

Traditionally, the rule of capture assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure. … Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature. … Shale gas does not merely “escape” to adjoining land absent the application of an external force. … Instead, the shale must be fractured through the process of hydraulic fracturing; only then may the natural gas contained in the shale move freely

It followed that fracking may be an actionable trespass where subsurface fractures and fracking substances entered the “subsurface estate” of a property and resulted in the extraction of natural gas.  Conceivably this trespass may extend to damage caused by earth tremors if they can be credibly linked to fracking.

Briggs v Southwestern Energy Production Co, 2018 PA Super 79

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* [1978] Q.B. 479 at 487.
** Minard Run Oil Co v US Forest Service, 670 F. 3d 236 at 256 (3d Cir. 2011)