The limitation of liability of airlines under Article 22 of the Warsaw Convention

Can one sue an international airline in Zimbabwe?

Article 22 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention) deals with the assessment of damages. Therefore, damages with regards to airlines are not based on economic, social or political conditions, but are fixed by the Warsaw Convention. Thus, claims arising out of carriage by air are exclusively governed by the Warsaw Convention.

Not all legal advisors, or legal practitioners are familiar with aviation law, especially in Zimbabwe. It is important, that clients receive proper legal advice on the quantum of damages particularly, damages under the Warsaw Convention. Under the Warsaw Convention, one cannot claim an amount higher than the prescribed amounts.

In Roberts v Air Zimbabwe Corporation 2003 (1) ZLR 223 (H) it was held that:

‘There would be little purpose served by this Act if it were possible to claim an amount higher than the prescribed limit. This is an international convention. Zimbabwe is a signatory to it. Zimbabwe is obliged to apply the letter and spirit of the convention. In the circumstances the answer to the State case is that the contract between the parties is governed by the 1929 Warsaw Convention as amended by the Hague Protocol of 1944 as adopted into domestic law by the Carriage by Air Act [Chapter 13:04].’

Article 22 of the Warsaw Convention provides as follows:

1. (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the court seized of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
2. (2)(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogram, unless the passenger or consignor has made, at the time when the package 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. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.
3. (b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
4. (3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger.
5. (4) The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.
6. (5) The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrams of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.

It must be noted that Article 22 does not apply, if it can be proved that damage resulted from an act or omission of an airline. In Jambga v Ethiopian Airlines HH 481-14, the High court held that ‘Article 25 provides an exception to the limitation.’

Under Article 25 of the Warsaw Convention, a plaintiff, must provide proof that the act or omission giving rising to theft of cargo or luggage of a passenger was within the scope of the servant’s or agents employment. It has been held that theft by a person who is responsible for loading luggage or cargo onto an aircraft is within the scope of employment, since such a person is not only vested with a duty to load luggage or cargo, but also to take reasonable care of the luggage or cargo.

In Transmedia Corporation (Pvt) Ltd v Beach Consultancy Company t/a Aviation Ground Services HH 162-10 it was held that:

In the ordinary human experience guarded property in a warehouse does not simply mysteriously disappear into thin air without someone being negligent. There is therefore a presumption that the defendant and its employees were negligent. The adage resipsa loquita, that is to say, the facts speak for themselves applies.