The Convention is the primary piece of legislation that deals with all aspects of your carriage on an aircraft. The ‘Law’ is made by the International Civil Aviation Organisation (ICAO) which is part of the United Nations and deals with International Aviation matters. It provides for one set of rules but those rules are often subject to difficulties and you may need further assistance to help resolve any dispute you have with an Airline (note: in the Convention they are referred to as ‘Carriers’).
We shall deal with:
- Death & Injury;
- Lost, Delayed or Damaged Baggage;
- Compensation Levels.
The areas we shall cover are found in Part III of the Convention, principally under Articles 17, 19, 21, 22, 31 & 35.
Article 17 deals with Death & Injury and bizarrely, Damage to Baggage!
Article 17 (1) tells us that the Airline is ‘liable’ only if the death and injury occurred ‘on board the aircraft’ or whilst ‘embarking or disembarking’. It is important to note that the Convention refers to ‘bodily injury’ and this has caused wide debate wand difficulties, for example with DVT, which does not qualify. It is vitally important to make sure that if you have been injured on-board an aircraft that you speak with us as soon as possible so that we can help you determine this difficult issue.
Article 21 provides an indication on compensation for Death or Injury. Compensation is expressed as Special Drawing Rights or SDR’s. An SDR is a form of International currency operated by the International Monetary Fund. It is calculated against 4 currencies, the US$, the Euro €, the GBP£ and the Japanese Yen ¥. You can calculate an SDR’s value through this link.
The Article states that that for claims that fall below 100,000 SDR’s ‘the carrier shall not be able to exclude or limit its liability’.
However, where a claim for Death or Injury exceeds 100,000 SDR’s the Airline may not be liable to pay this compensation if they can prove:
“(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party”
Article 17 (2) again tells us that the Airline is ‘liable’ only if your ‘checked’ baggage was destroyed, lost or delayed only if it occurred whilst the baggage was ‘on board the Aircraft’ or in the ‘charge of the carrier’. The Convention provides a defence to the Airline if they can show that the damage to the baggage was due to a ‘defect’ of the baggage. It also states that damage to ‘unchecked baggage’ will make the Airline liable if the damage was due to the fault of the Airline or its ‘agents or servants’.
Article 17 (3) provides that if the Airline admits the loss of your checked baggage, after 21 days, then the Consumer can enforce their rights as found in the terms and conditions of carriage (You should make sure you make a written complaints without delay!).
Article 19 deals with Delays to Baggage. It also deals with delays caused to passengers and cargo.
The Article sets out that the Airline is liable for any delay but not if it can show that the Airline, its agents and servants, ‘took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures’.
Article 22 deals with the levels of compensation payable for destruction, delay, damage or loss to baggage (it also deals with delay to cargo & passengers). It expresses compensation levels again as SDR’s.
Article 22 (2) advises that where the claim relates to baggage, compensation is limited to 1,000 SDR’s per passenger. However this can be increased if:
- The passenger at the time of checking in;
- Makes a ‘special declaration of interest in delivery at destination’;
- And has paid a ‘supplementary’ sum if required;
- The Airline is required then to pay the ‘declared’ sum, but note the Airline can resist if;
- ‘it proves that the sum is greater than the passenger's actual interest in delivery at destination’.
Article 22 (5) however provides another defence to the Airline! The defence seems to suggest that if the Damage to Baggage was done in the ‘scope of its employment’, then the Airlines and their agents and servants would escape having to pay compensation!
One of the principle areas where Consumers get into difficulty is providing notices as required by the Convention. The simple rule is if your bag is delivered damaged at the carousel, or is delayed or lost, DO Not leave the baggage reclaim area without completing a Property Irregularity Report (PIR) –you will find these at either the information or airline desks within the arrivals hall at the airport!
Article 31 states that:
- Receiving your checked baggage without complaints is ‘prima facie evidence that the same has been delivered in good condition’;
- Where checked baggage has been damaged, you must complain in writing to the Airline ‘forthwith’or at the latest, within 7 days of receiving your damaged baggage;
- Where your baggage has been delayed, then you must complain in writing to the Airline within 21 days from the date at which the baggage has been ‘placed at his or her disposal’.
- The Article is quite clear at 31 (4):
- ‘If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part’.
Article 35 declares that the Limitation Period for any action under the Convention is 2 years!