Summer is almost here, and that means people are looking to jet off for well-earned breaks, or to visit family overseas. But in the back of their minds, many people have a nagging question: what happens if things go wrong?
Since international travel re-started after Covid, incidents of lost baggage have regularly been in the news. In 2022 the rates of lost bags were at a 10 year high, with an eye-watering 26 million pieces of baggage lost, delayed or destroyed. An even worse start to your holiday can be being injured on the plane. There is a reason they remind you “to watch your child’s fingers and toes before closing tray tables” and that “items in overhead lockers may have moved during the flight”.
So, what happens if your bags are delayed or lost, or you are injured whilst on board the plane?
The Montreal Convention 1999 (Convention) may have the situation covered. The Convention is a multilateral treaty that governs airline liability for international carriage for passengers, baggage or cargo. The Convention was incorporated into New Zealand law through the Civil Aviation Act 1990 (CAA). The Convention applies to all passengers travelling between countries signed up to the Convention (around 160 countries). It does not apply to domestic travel.
Strict time limits do apply, and you must make a written complaint or claim under the Convention within the prescribed time limit, which is usually two years.
Claims for compensation – bodily injury
Under Article 17(1) of the Convention, the carrier is liable for the death or bodily injury of a passenger if the death or injury was caused by an accident that took place on board the aircraft or in the course of embarking or disembarking.
“Bodily injury” excludes mental injuries such as those of a psychiatric or psychological type. This means to make a claim you must have suffered an injury yourself; it isn’t enough to have been traumatised by events that you have witnessed. However, it is generally accepted that if psychological injuries were caused by physical injuries, damages may be recoverable for both. Similarly, both the United States and the United Kingdom consider that Post Traumatic Stress Disorder may be a physical injury to the brain if evidence of that injury is produced.
A claim for compensation for death or bodily injury must also show that it was caused by an “accident”. There will be no liability if a person happens to die of natural causes during a flight. In the leading case of Air France v Saks it was held that liability arises only if a passenger’s injury is caused by “an unexpected or unusual event or happening that is external to the passenger”. If an injury results from “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft”, is has not been caused by an accident, and the Convention will not apply.
Lastly, in order for the carrier to be liable for death or injury it must have occurred “on board the aircraft or in the course of any of the operations of embarking or disembarking”. This covers a range of activities at an airport, with the operations of embarking including checking in, passing through passport and currency control, security searches, and all boarding procedures. The operations of disembarking are the similar events upon arrival.
The Convention operates as a strict liability regime, which means the carrier is not able to exclude or limit its liability even if the passenger contributed to their injury. However, there is a limit to the amount that the carrier can be held liable for. The Convention limits damages to 100,000 Special Drawing Rights (a standardised amount based on a basket of five currencies, and currently worth around $2.20 each) for each passenger. In New Zealand, the CAA has increased this amount to 128,821 SDRs, equivalent to around $285,000.
The intention of the Convention was to provide legal certainty and consistency for airlines conducting international carriage by air whilst providing the benefit of fair compensation to passengers.
If you want to claim over this amount, then the Convention no longer operates as a strict liability regime. It is fault based, and if the carrier can prove that:
- the damage is not due to the negligence or other wrongful act or omission of the carrier or its employees; or
- the damage was solely due to the negligence or other wrongful act or omission of a third party.
then it will not be liable. Claims for bodily injury must be made within 2 years.
Claims for compensation – flight delay
Travelling from New Zealand often means that multiple flights are needed to get to your final destination. One delay can easily have a snow-ball effect on later flights, and while your airline may try to accommodate you on later flights if you are booked with either it or its partner airlines, this may not be the case.
The Convention makes the carrier liable for damages caused by delay in the carriage by air of passengers, baggage or cargo. However, the carrier is not liable if it can prove that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take such measures. For example, if you miss a connecting flight due to the delay of a prior flight, the carrier is not liable for damages if it proves the above.
You have 2 years to make a claim for damages in respect of flight disruption.
Claims for compensation – baggage
If your luggage goes missing, and you need to go shopping for essential items, it can be comforting to know that the carrier is liable for destruction, loss or damage to your checked baggage, as long as that destruction, loss, or damage took place either on board the aircraft or during any other time when the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. This means that your airline will be liable if it mishandled your bags, but not if they fall apart through age and overuse (or overstuffing).
If your bag is delayed, you will need to prove the replacement costs, so hang onto those receipts.
In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its employees. Any claim for your baggage is limited to 1,288 SDR, or around $2,800, unless you make a special declaration before the flight and pay any additional amount required. This relatively low sum means that it would not be a good idea to pack your family heirlooms, or even your Christmas presents. If you need to carry something expensive, we suggest you use a separate carrier and obtain insurance.
Damaged baggage clams must be submitted within 7 days and delayed baggage claims must be made within 21 days. If a bag has been missing for 21 days, it is considered lost and this means you have 2 years in which to file a claim.
What else can you do?
The Convention provides a useful amount of cover to get you back on your feet if you have lost your luggage or sustained an injury. However, it often won’t be enough to replace everything you have lost, or to provide speedy assistance. Travel insurance is always a good idea, as you can ensure that you have cover for everything that you need.
Special thanks to Special Counsel Vanessa Ma and Law Clerk Sasha Khurana for preparing this article. If you have any questions about your rights as a traveller, or need assistance making a claim, please contact a member of our insurance team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
