LOST AND DELAYED LUGGAGE: YOUR RIGHTS AS AN AIR PASSENGER
If you arrive at your destination only to discover that your luggage was delayed, damaged, or lost, who is at fault: you or the airline? Even if you don’t have travel insurance, what rules apply when you travel between countries?
Your ticket describes or refers to the airline’s baggage requirements, which are generally set out in the carrier’s terms and conditions of carriage. Your booked journey is subject to these rules. International flights, however, are subject to a number of overarching international treaties that carry some protection against damage, loss, or delay to baggage.
International agreements
First was the Warsaw Convention of 1929, and the latest is the Montreal Convention of 1999, which is more passenger-friendly. According to the Montreal Convention 1999 (MC99), airlines are responsible if passengers die or are injured, or if their luggage and cargo are damaged or lost. Since 1929, haphazardly developed international treaties covering airline liability have been unified by this treaty.
Domestic Law-Canada by Air Act
Lost or damaged baggage
23 (1) If a carrier admits to the loss of baggage, or if baggage is lost for more than 21 days or is damaged, the carrier must provide compensation equal to or greater than the sum of
(a) the fees paid for that baggage,
(b) in cases where the Carriage by Air Act applies, the compensation payable in accordance with that Act, and
(c) in cases where the Carriage by Air Act does not apply, the amount that would be payable by the carrier in accordance with the Convention for the Unification of Certain Rules for International Carriage by Air set out in Schedule VI to that Act, if the carrier were conducting international carriage of baggage within the meaning of paragraph 1 of Article 1 of that Convention.
Temporary loss
(2) If baggage is lost for 21 days or less, the carrier must provide compensation equal to or greater than the sum of
(a) the fees paid for that baggage,
(b) in cases where the Carriage by Air Act applies, the compensation payable in accordance with that Act, and
(c) in cases where the Carriage by Air Act does not apply, the amount that would be payable by the carrier for delay in the carriage of baggage in accordance with the Convention for the Unification of Certain Rules for International Carriage by Air set out in Schedule VI to that Act, if the carrier were conducting international carriage of baggage within the meaning of paragraph 1 of Article 1 of that Convention.
In what capacity is the airline responsible?
Regardless of fault, a carrier is responsible if your checked baggage is lost, delayed, or damaged. The carrier must prove that it took all reasonable measures to avoid the damage occasioned by the delay unless the damage was caused by the baggage’s inherent quality defect. Unless the damage is caused by the carrier’s fault or that of its agents, unchecked baggage (carry-on luggage) is not subject to carrier liability. Checked baggage and unchecked baggage are both included in the term “baggage” unless otherwise specified.
The Ontario Superior Court of Justice recently ruled that in order to claim damages for lost luggage under the Montreal Convention, a passenger need not have personally checked the luggage. This decision partially affirms a decision of the province’s Small Claims Court, in which the deputy judge held that, despite only one passenger in a group having checked in all of the bags, each passenger had been entitled to claim damages for lost luggage.
An Ontario court ruled in Holden v. Ace Aviation (2008) that only a passenger who checked the bag at issue was entitled to compensation.
This interpretation was adopted by the British Columbia Small Claims Court in the 2012 decision of Khabazian-Isfahani v. WestJet Airlines Ltd., in which a passenger who had packed items in a bag checked by his girlfriend was refused compensation for the delay. The Court concluded that to allow a person to step forward after the fact to claim for items said to have been carried in someone else’s luggage would make carriers vulnerable to unanticipated and unpredictable claims.
If your baggage is lost, what should you do as a passenger?
Airlines are responsible for finding checked bags that do not arrive at their destinations. To attempt to locate the bag, airlines have tracking systems in place. The location of baggage is now available on some airlines’ applications for cell phones, tablets, and other electronic devices. Using this technology, if available, may be helpful in locating your luggage. As soon as possible, passengers should file a baggage claim with their airline. During the baggage location process, passengers should stay in close contact with the airline.
AUTHOR: LYDIA IBOKO
