Author: Maria Demetriou
Date of Publication: 30/11/2022
Nowadays, aviation has become an essential and daily part of our lives. However, using that means of transport could, sometimes, result in inevitable accidents. Such a common accident is the unfortunate situation where your luggage or cargo was delayed, damaged or lost. If you have ever experienced this, you should be aware that you have the law by your side to establish airline liability.
Main characteristics of Montreal Convention (MC)
Montreal Convention 1999 is a globally applicable treaty that regulates airline liability. In particular, it integrates, improves and modernizes the multiple airline liability international treaty systems that had emerged since 1929. So, its main aim is to safeguard consumer interests in international air transportation. Particularly, it establishes airline liability for:
Death/injury to passengers
Delay of flights
Delay of luggage/cargo
Damage or loss of luggage/cargo
Thus, this article will guide you on how to establish airline liability for the last two cases.
STEP 1: Applicable scope of MC
Firstly, your case must be in the protected scope of the MC. Specifically, MC protects you if you travel:
On a civil aircraft (or on a state aircraft if the relevant state hasn’t imposed an exception)
Either you have paid or not (eg. reward flight for certain miles)
In an international flight:
State of arrival and state of departure, as written on the ticket, must be different. However, if it is the same state, there must be a stop in a different -third- state.
States of arrival and departure must be member states in the MC.
On the contrary, MC is not applicable for:
Domestic flights (where the state of arrival and departure is the same, without a stop in a different state)
Postal items’ delivery
STEP 2: Establishment of damage/loss of luggage or cargo and establishment of delay of luggage/ cargo
A. If your claim involves damage or loss of luggage, you should make a distinction between checked and unchecked.
For checked luggage, there are four conditions:
The damage/loss/destruction of luggage must occur while it was under the air carrier’s control (from the time of check-in, until the passenger takes it back)
You don’t need to prove that the air carrier was negligent: it has strict liability for the luggage.
Internal flaws or bad quality of the luggage shouldn’t cause the damage. Otherwise, the air carrier can exclude liability.
You can consider your luggage as lost, if the air carrier hasn’t delivered it within 21 days of the flight or, rarely, if it takes the responsibility of the loss.
On the other hand, for unchecked luggage, you need to prove that the air carrier or its servants were negligent. That’s because this luggage, which includes personal items, is under your own control in the plane -unlike checked luggage, which is under air carrier’s care.
B. If your claim involves damage or loss of cargo, there are three conditions to keep in mind:
The damage/destruction/loss of cargo must occur during the time of the air transportation. That’s the time when the cargo is under control of the air carrier or when it transports it for loading/delivery. It, also, covers the time when the air carrier uses another means of transportation, instead of air carriage, without your approval.
You don’t need to prove that the air carrier was negligent: it has strict liability for the cargo.
Internal flaws/bad quality of the cargo, improper packing by a third party, violent conflicts or acts of public control shouldn’t cause the damage. Otherwise, the air carrier can exclude liability.
C. If your claim involves delay of luggage or cargo, you should remember that:
You can assert, efficiently, that the air carrier was negligent.
However, the air carrier can exclude liability if it shows that its employees took all the reasonable precautions to prevent the damage or that it wasn’t possible for them to do so -eg. because of strike, bad weather, unforeseeable technical error.
STEP 3: Liability of the air carrier
A. In the case of damage/loss/delay of luggage:
Limit of liability to 100 SDR (approximately 1500 euros) for each passenger.
Extra liability for an additional sum. That happens, if you submitted before a specific interest declaration for your checked luggage, unless the air carrier proves the declared value is less than the real value of the luggage.
Limitless liability, if the air carrier or its servants -while on duty- proceeded to the damage intentionally or recklessly, knowing the probability of damage.
B. In the case of damage/loss/delay of cargo:
Limit of liability to 17 SDR (approximately 30 euros) per kg.
Extra liability for an additional sum. That happens, if you submit before a specific interest declaration for your cargo, unless the air carrier proves the declared value is less than the real value of the cargo.
Limit of liability only to the damaged/lost/delayed part of the cargo. Nevertheless, an exception to the limit exists when the damage of one part affects the whole cargo. Therefore, the air carrier's liability for the whole cargo.
In contrast to luggage, you can’t claim limitless liability for cargo in case of intentional damage.
STEP 4: Limits of action-Deadlines
Generally, it is very important to remember that if you don’t file a lawsuit within 2 years of the date of the flight that caused you damage, your right to damages will expire.
Specifically, you, also, have to meet deadlines about the written complaint to the air carrier:
For damage to luggage: within 7 days from the date, you received the luggage.
For damage to cargo: within 14 days from the date, you received the cargo.
For delay of luggage/cargo: within 21 days from the date, you received the luggage/cargo.
Exceptions to these deadlines exist in cases of fraudulent behavior of the air carrier.
STEP 5: Jurisdiction
You shall file your lawsuit for damages in the territory of a Member State to the MC. However, you can choose between:
The place of domicile of the air carrier,
The place of business of the air carrier,
The place where you have concluded the contract with the air carrier (not applicable for online contracts),
The place of the final destination, as written on the ticket.