The Liability of an Airline for Damages occasioned by a Delay of Baggage or Cargo

The delay of baggage or cargo by air, can occur. A delay under Article 19 of the Warsaw Convention refers to a situation where baggage or cargo does not arrive at a specific destination at an agreed time.

In order to benefit from the Warsaw Convention, a plaintiff must meet the requirements laid out in the Warsaw Convention. Thus, a plaintiff must prove the delay and damage. Before instituting a claim for damages, it is important to reflect on Article 26 of the Warsaw Convention which provides as follows:

‘(1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.

(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty one days from the date on which the baggage or cargo has been placed at his disposal.

(3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing dispatched within the times aforesaid.

(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.’

In Cristal Motor Spares (Pvt) Ltd t/a Cristal Fabrics, Crafts & Designers v South Africa Airways HH 135-13, it was held that:

‘I therefore have no hesitation in concluding that no written complaint was made in terms of Article 26. For that reason, Article 26 (4) that failing complaint within the times given, no action shall lie against the carrier, kicks in. It was necessary for the plaintiff to make the averment that Article 26 was complied with. A claim brought in terms of the Convention must certainly contain an averment that the requirements of the Convention for bringing such a claim, in this case Article 26, have been complied with.’