When an air passenger books a flight with an airline a contract is created between the passenger and the airline. If, as part of that contract, it has been agreed that the passenger can take with him baggage then the airline will be responsible for taking reasonable care of that baggage.
If the airline fails to do so, for example the airline loses the baggage, on the face of it the air passenger will have a claim against the airline for the loss suffered by him. However, that is not to say that an air passenger will be successful in making a claim in all circumstances or that he will be able to recover his losses in full.
The Montreal Convention
The Montreal Convention, amongst other things, sets out the liability of an airline in the event that baggage is lost on certain international flights. The majority of flights to and from the UK are covered by the Convention.
The Convention provides that an airline will be liable for delayed or lost baggage in certain circumstances.
How long does baggage have to be missing before it is considered as being lost?
Under the Convention baggage is treated as having been lost if it has been missing for 21 days or more. If 21 days have not yet passed then the baggage is treated as having been delayed.
In what circumstances will the airline be liable?
The Convention provides that an airline will be responsible for lost or delayed baggage unless:
- The airline can show that it (or its agents or employees) took all reasonable measures to avoid the baggage being lost or delayed or that it was impossible for such measures to be taken; or
- The airline can show that the passenger claiming the compensation caused or contributed to the loss or delay.
If the airline is responsible for losing my baggage will I be able to claim from them the full value of my lost baggage?
The Convention set a limit on the amount of an airline’s liability for lost baggage of 1,000 “Special Drawing Rights” (SDR) per passenger. That figure is subject to a review every 5 years. The limit as at June 2010 is 1,131 Special Drawing Rights per passenger. If the value of your luggage exceeds this amount then it is unlikely that you will be compensated in full by the airline for the loss.
The amount set by the Convention does not relieve the passenger of his obligation to prove his claim. Any receipts, for example relating to the lost baggage should be retained.
What is a “Special Drawing Right”?
A “Special Drawing Right” is a monetary unit used by the International Monetary Fund. The rate fluctuates on a daily basis like any other currency. The current rate can be found on the International Monetary Fund’s website.
Is it ever possible to claim more than that amount?
If the passenger, at the time when the baggage was handed over to the airline, made a “special declaration of interest in delivery at destination” and has paid a supplement for doing so, if required by the airline it is possible to claim more than the Special Drawing Rights set out above. In such cases the airline’s liability is limited to the amount of the declared sum, unless it is able to show that the sum declared was greater than the passenger’s actual interest in delivery at destination.
It is also possible to claim more than the Special Drawing Rights set out above if it can be shown that the airline, its employees or agents intentionally caused the loss or were reckless in doing so. An airline will not be liable for any additional amount claimed if the loss was caused by an employee or agent who was acting outside of the scope of their employment.
Are Court costs recoverable?
If a passenger brings a claim against an airline through the Civil Courts and is successful, the passenger can generally claim his costs of bring the claim as well as interest on the sum claimed.
An exception to this is where the airline has made a written offer to pay a higher amount than that awarded to the passenger by the Court within 6 months of the date of the loss or before the commencement of the Court proceedings, if that is later.
What if the airline’s conditions of carriage state that it has no liability for loss of luggage or limits it liability to a lesser sum than that set by the Convention?
Where the Convention applies, any attempt by an airline, for example in its conditions of carriage, to exclude liability or to limit its liability to a lesser sum than that set by the Convention will be treated as null and void.
When and how should I make a complaint about lost baggage?
Where baggage is lost by an airline a complaint in writing should be made as soon as it has been discovered that the baggage has gone astray. At the latest a complaint should be made within 7 days.
If a complaint is made late then the airline will not be liable for the loss unless it can be shown that the airline acted fraudulently. It is generally very difficult to prove fraud.
If Court proceedings become necessary then such proceedings must be brought within 2 years of the date of arrival of the plane or the date upon which it ought to have arrived or when the carriage stopped.
I have heard that the airline is in financial difficulty. Will this prevent me from recovering compensation from the airline?
All airlines are required, under the Convention, to maintain adequate insurance to cover any liability they may have.
I have travel insurance. How does that affect my claim?
Where a passenger has travel insurance there is nothing to stop him from making a claim under the policy. In fact it may well be that a better settlement is obtained from travel insurers than if a claim was brought against the airline under the provisions of the Convention.