Published 31 August 2018, The Daily Tribune

In our Air Passenger Bill of Rights, we were apprised that airline passengers have the right to be compensated in case of  death or injury, or delay, loss or damage to baggage in accordance with the relevant convention. The relevant convention that the country now adheres to is the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, 28 May 1999, otherwise known as the Montreal Convention or “MC99”. This convention is more particularly relevant for international flights where the places of departure and destination are located in different countries which are State Parties to the convention.

MC99 is designed to be a single, universal treaty, governing airline liability around the world relative to carriage of passengers, baggage and cargo. It amended the now defunct Warsaw Convention and its related protocols – which compensation system, over time has become outdated. As will be further explained, MC99 espouses a more modern and fair liability regime than its Warsaw counterpart.

MC99 was ratified by the Philippine Senate on 10 August 2015, and became effective on 12 December 2015. To date, 132 of the 191 contracting states of International Civil Aviation Organization are parties to the MC99.

With the Philippines’ accession to MC99, it has the force and effect of law in this country. For purposes of this article, we focus on the rules pertinent to death or injuries to passengers, and loss, delay or damage to baggage.

Accidental death or injury to passengers

One of the key aspects under the Montreal Convention is its establishment of a two-tier liability for death or bodily injury to a passenger. The first tier is on the basis of a strict liability where an airline carrier shall be made liable for damage sustained in case of death or bodily injury of a passenger on the condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking (Article 17). Under this first tier of liability, the carrier cannot limit or exclude its liability provided the damages sustained does not exceed 113,100 Special Drawing Rights (“SDRs”). An SDR is a type of foreign exchange reserve asset created by the International Monetary Fund. Its value is based on an artificial basket of currencies consisting of the US dollar, the euro, the pound and the Japanese yen. The liability limits are reviewed every five years.

In this regard, the carrier may be held liable even if it is not negligent or at fault. (Article 21) The carrier is thus presumptively liable up to the amount of 113,100 SDRs. The carrier’s liability may be reduced or exonerated only in case where damage was caused by contributory or sole negligence of the passenger or person claiming compensation. (Article 20)

Under the second tier of liability, or for all damages higher than 113,100 SDRs (or approximately up to US$170,000 based on current IMF valuation), the carrier shall be liable unless it can show that the damage was not due to its negligence or wrongful act or omission, or that the damage was solely due to the negligence or wrongful act or omission of a third party. (Article 21) Otherwise stated, for those claims above 113,100 SDRs, the carrier shall not be liable under this tier only if it shall prove that it was not negligent or at fault. To emphasize, the burden of proof is on the carrier.

This two-tier liability is a departure from the liability regime under the Warsaw Convention (and its subsequent amendments) where the carrier’s liability was limited to $25,000.00 (or its equivalent) regardless whether the airline was at fault or not. Also, the full defense that the carrier or its agents has taken all reasonable measures to avoid damage is not already availing under the Montreal Convention.

Destruction, loss damage or delay in carrying baggage

In the case of destruction, or loss of, or of damage to, checked baggage, the carrier shall be liable for damages  as long as the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was under the carrier’s custody. The carrier may be held not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In case of unchecked baggage, including personal items, the carrier shall be liable if the damage resulted from its faults or that of its agents. (Article 17)

In those cases where the carrier is held liable, the carrier’s liability shall be up to 1,131 SDRs for each passenger, or approximately US$70 per kg luggage (per current valuation). This is an apparent increase from the previous limit under the Warsaw Convention of only up to US$20 per kg luggage. The passenger may only claim above the limit of 1,131 SDR if he has made a special declaration of interest at the time of check-in, and has paid a supplementary sum if the case so requires. In such case, the carrier will be liable to pay a sum not exceeding the declared sum.

Note further the time limits set under the MC99 in case of filing claims against the carrier. In case of damage to baggage, the complainant must file his or her written complaint within seven (7) days from the date of receipt of the checked-in baggage. In case of delay of delivery, on the other hand, the complaint must be made at the latest within twenty-one (21) days from the date of receipt of the baggage. (Article 31) These time limitations are important since no action can lie against the carrier if the complaints were made beyond the period stated, save in the cases where the carrier employed fraud.

The action for damages must be brought at the option of the plaintiff in the territory of one of the State Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has belen made or before the court at the place of destination. This is the so called four jurisdictional rules which similarly applied under the Warsaw Convention. As supplement, the MC99 also allows, in respect of damage resulting from death or injury of a passenger, the filing of action in the territory of a State Party in which at the time of the accident the passenger has his principal and permanent residence  and to and from which the carrier operates services for the carriage of passengers by air. ( Article 33 ).

The right to damages shall be extinguished if the action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrives, or from the date on which the carriage stopped. ( Article 35 )

On a final note, remember that along with the provisions of MC99, the carrier’s responsibility shall be likewise governed by the carrier’s terms and conditions made known to the passenger before the purchase of the airline ticket. Surely, it pays to be informed.

All told, may you always have a safe flight!

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