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Luggage Delay and “Compensation”
Lets clear up something fundamental
right at the start
The compensation available to a passenger for the delayed arrival
of their luggage can be broadly separated into two notions.
1.What an airline- as a matter of practise- may or may not offer
voluntarily as compensation in the event of your luggage arriving
late and;
2. The potential legal liability the airline may have to a claim
from that passenger to a potential claim from that passenger.
These are two quite different notions.
It is relatively easy to research for any particular airline
what that airline declares they will give a passenger in the
event that they fail to deliver up that passengers luggage on
time.
For example an airline such as Virgin Atlantic or SAS will declare
in their web sites that in the event of delay to luggage checked
in with them they will provide compensation of £50, or
up to £50 subject to the passenger providing evidence of
expenditure.
Other airlines will say nothing. Others will effectively repeat
what they maximum potential legal exposure is.
The liability of an airline for delay in the carriage of your
baggage is complex. A passenger is entering the involved area
of international air law.
The Montreal Convention
Most qualified lawyers will find this specialized area of international
law as alien as the average passenger.
Until recently the international convention dealing with these
complex matters was the Warsaw Convention (which was later amended
by the Hague Protocol). This was overhauled by a relatively new
convention The Montreal Convention.
These conventions provide an agreement between most of the worlds'
countries to have a common system of rules.
In each country these rules are effectively embodied within that
country's laws by a local law. ( For example in the UK it is
the Carriage by Air Act)
Therefore, although the rules are uniform between countries,
just how each country may interpret that rule can be different.
Each country might apply a different interpretation to the rule.
Countries try to keep an eye on how other counties apply the
law to keep a semblance of uniformity in the system.
Therefore this is a very complex area and almost everybody will
shy away from it unless there is plenty of money in issue and
the lawyers really know their subject.
Most of the cases that take place internationally would involve
high value cargo claims being dealt with between the insurance
companies of the cargo and the airline. It may make sense to
argue about these complex matters where the claim involves millions
of dollars. If a passenger luggage arrives a week late nobody
is really interested apart from the aggrieved passenger.
Therefore the average fuming passenger
will look at the internet to try to discover his or her rights
of recourse against an airline. (After all hasn't that passenger
declared to anyone who will listen that he or she will sue the
airline)?
(The situation of course may be different where the affected
passenger is himself an aviation lawyer)-
What does the passenger find? Well a confusing mixture-(if Flight
mole is wrong please tell us).
On the one hand there is comment within airlines' own web sites
and indeed on consumer watchdog sites that you might be able
to claim under the Montreal Convention but that this is all very
complex and often with an inference that the passenger is unlikely
to be successful.
However the same basic principles apply similarly between the
delay of a passenger and his or her luggage, and the high value
delayed cargo claims mentioned above.
This is what the UK AUC says on its website on this area
"
The reference to 21 days is taken from the Montreal Convention
and is the period of delay after which an airline must treat
a bag as lost. Generally speaking, this makes a difference to
how airlines settle claims. There are no set rules for how airlines
must assess baggage claims. For delayed baggage, some airlines
offer immediate one-off payments at a set amount to cover emergency
purchases (such as toiletries or underwear). Some will pay a
set amount per day up to a maximum number of days. And others
will not make cash payments at the time, but prefer to reimburse
expenditure on essential items on seeing the receipts. But the
general principle is to cover essential expenditure resulting
from the delay to delivery of the baggage. "
Elsewhere on the AUC site it states
"
The two-year deadline also applies to bringing action for claims
for delay or for baggage problems. But, in practice, these claims
are less likely to result in court action, not least because
the Convention places limits on airlines’ liability in
these areas. The limit for claims for delay is 4,150 Special
Drawing Rights per passenger, and for baggage it is 1,000 Special
Drawing Rights per passenger. "
So here the AUC, in Flightmole’s opinion, mixes the two
notions we mention above.
The AUC quite rightly explains what an airline might offer voluntarily the passenger who has had the misfortune to suffer delayed luggage
and the legal liability that an airline may have to compensate
a passenger.
Perhaps in many circumstances of minor delay, the voluntary offer
of compensation will at least match the legal obligation an individual
airline would have. In certain circumstances this may even exceed-what
on a strict legal analysis that more "generous" airline
would be compelled to pay if the claim for compensation was reviewed
by a competent court.
Why are these claims "less likely to result in court action"-just
because the limit has been reduced slightly?
What leads them to this rather non-sequitor opinion?
Any claim could result in court action-the likely prospect
of success of that court action is the relevant issue.
The AUC mentions the new Montreal limit of liability for baggage
delay and leaves it there hanging-dangling a value of 4150 Special
drawing rights and suggesting that a claim is unlikely to result
in court action.
Does this mean that it won’t be necessary to take court
action against an airline to recover compensation for delayed
luggage?
This is the purpose of flightmole.com. To burrow beneath the
surface of these complex matters.
Burrowing with Flightmole may take effort because there may not
be any easy answers in this area of air passenger rights. For
the time being look at further press analysis of this area.
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