Mark Pestronk
Q: When my client recently landed in New Zealand, his checked bag was nowhere to be found. It turns out that it was still sitting in Los Angeles, and through a series of bumbling errors by the carrier, he did not get his bag for the whole first week of his two-week trip. During the delay, he bought some clothes for several hundred dollars. He wants to know whether the carrier has to reimburse him for the out-of-pocket expenses. What about damages for the inconvenience, loss of enjoyment and frustration? What about punitive damages to teach the carrier a lesson?
A: The carrier owes him just his out-of-pocket expenses due to the delay, up to a fixed maximum, if the carrier correctly followed the requirements of the law when it sold the ticket and when it checked the client's bag. If the carrier failed to follow all those requirements, there is no cap on damages, and damages for mere inconvenience and even punitive damages are theoretically allowed.
Liability for lost, damaged or delayed baggage on international flights is governed by the Warsaw Convention, as amended by the Montreal Convention. The basic concept of those treaties is "no fault": Passengers do not have to prove that the carrier was at fault and, in return, the carrier gets to take advantage of a cap on damages.
The cap is expressed in terms of Special Drawing Rights (SDRs), which is an artificial value set by the International Monetary Fund and which combine the values of U.S. dollars, euros, Japanese yen and pounds sterling. Today, each SDR is worth $1.48. The treaties set the cap at 1,131 SDRs, which today translates to $1,674.
To be able to take advantage of the $1,674 cap, a carrier must have given your client a baggage claim check which contained: (a) "an indication of the places of departure and destination"; (b) an indication of at least one foreign stopping place; (c) the weight of the baggage. The carrier must have also provided the passenger with a written notice in at least 10-point type stating that "the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage."
I looked at my own recent baggage claim check for a recent international flight, and I saw no weight, so if your client's claim check was like mine, I would advise your client that the carrier cannot limit its liability to $1,674 or any other amount and that he can sue for the inconvenience and any other damages if they are consistent with his state's legal precedents.
Incidentally, for domestic flights, the Department of Transportation (DOT) has a regulation that allows carriers to limit their liability, as well. Today, that limit is $3,400, which is twice as much as the international cap.
The other big difference between the DOT rule and the treaties is that the DOT rule does not have a no-fault standard: For losses on domestic flights, the passenger still has to prove that his loss was caused by the carrier's negligence.
However, if the domestic flight was part of a through trip to a foreign destination, the treaties will apply and not the DOT rule.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].