Psychic harm and the Montreal Convention
This week, I flew from Montreal to Washington with United Airlines and then South African Airlines from Washington via Dakar. My baggage didn’t. I have spent the last four days trying to find it. Yesterday they told me it was in London. Why London? Why couldn’t I have gone to London and my baggage come here instead? I could be buying a new suitcase on Oxford Street right now.
So I have a dull Johannesburg weekend stretching ahead of me without (probably) my baggage. What shall I do?
I could do my nails… No, the nail polish is in the suitcase. I could play Scribblenauts on Nintendo. Nope, also in the suitcase. Swim? Bathers in suitcase. Gym? Shoes in suitcase. Go to work? All my work clothes are in the suitcase. I have been scruffing around for the last 3 days in an acrylic Woolworths cardigan and the 10 year old pants I wore on the plane.
It’s not looking good. I do have the Internet. Time to research some aviation law.
The international agreement that governs carrier liability is the Montreal Convention. The Convention is designed to replace the Warsaw Convention and all of its related instruments and to provide a common framework for carrier liability for passenger, death, injury, loss and damage.
What I am interested in is how the Convention treats compensation for delay, when there is no physical damage or injury.
Article 19 provides thatThe carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
The Convention is silent on a definition of “damage”. Article 22 of the Convention states that:In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.
So in my case, where I did not make any special declaration of interest, my claim is limited to 1,000 SDRs, or about AUD690 as of this morning. The contents of my suitcase and the suitcase itself have a replacement value of around AUD3,000. Hmmm…
The other problem I have is that my journey involved two different carriers.
South African Airlines’ Conditions of Carriage are silent on the matter of compensation for delay, but nor do they exclude it. So I guess the Convention prevails. Article 16.3.2 of the Conditions states that:We will be liable only for Damage occurring during carriage on flights or flight segments where our Airline Designator Code appears in the carrier box of the Ticket for that flight or flight segment. If we issue a Ticket or if we check Baggage for carriage on another carrier, we do so only as agent for the other carrier. Nevertheless, with respect to Checked Baggage, you may make a claim against the first or last carrier.
I read this to mean that even though the first leg of my journey was with United Airlines, I could still make a claim against South African Airlines.
United has two relevant policies on baggage liability on their website:Prior approval must be obtained through the Baggage Resolution Service Center in order for any expenses to be reimbursed. For international travel to which the Montreal Convention applies (including domestic* portions of international travel), United’s liability is limited to 1,131 SDR (Special Drawing Rights) per customer for checked and unchecked baggage.
So United offers about the same options as South African. They do offer reimbursement of interim expenses. However they want prior approval to reimburse any expenses. And it is a three-page form. And they want proof of purchase for any item >USD100. This is all too hard.
So what are my potential claims? Due to prior planning and a well-packed carry-on I have only actually spent the price of a tube of toothpaste. Hardly worth getting out of bed for.
I have certainly invested more than 1,000SDRs of my time in trying to sort this out. But is that a loss to me or to my employer? Maybe we could try a joint action? How to prove the loss?
I can certainly attempt to argue psychic harm. The trauma of being separated from not only my super lightweight polycarbonate Mack work boots but a new and unworn Giorgio Armani scarf has been significant. I have had dreams. Unfortunately, the courts seem to consider death or physical injury to be a prerequisite to liability under Article 17 for psychic harms. 
Speaking of psychic harm, I just called them again. They say that my bag arrived this morning on SA235 from London. It seems Air Canada have had it all along. Unfortunately the airport has suffered a power failure and no baggage is moving. Maybe today, maybe tomorrow, maybe I will now go to Woolworths and buy myself another pair of trousers…
Postscript: my bag arrived at 5:30pm, entirely undamaged and unperturbed by its ordeal. All is forgiven.
 See, eg,
Steven R. Pounian and Megan Wolfe Benett, 11-18-2009, “Recovery for Psychic Injuries under Warsaw, Montreal Conventions“
Ejected passenger’s claims fall, and fail, under Montreal Convention December 12, 2011