You are barely surprised any more when the conveyor belt rolls around and you find a few additional scratches on your luggage. But what if it’s more serious?
In the case of international flights, the Montreal Convention of 1999 is applicable. Article 17 of the Montreal Convention provides that the airline is liable for damages sustained to checked baggage upon condition only that the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the airline.
However, the airline is not liable if the damage resulted from an inherent defect or quality of the baggage.
In the case of unchecked baggage, including personal items, the airline is liable if the damage resulted from its fault or that of its employees or agents. An airline can refuse to check in damaged luggage to avoid being held liable. What should you do if you pick up your luggage and it’s been damaged, but you need to board a further flight? We recommend your take a photo of its condition and then have the item plastic-wrapped both to protect its contents and to prevent the new airline from refusing to allow you to check it in.
In the carriage of baggage, the liability of the airline 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 airline, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. 1000 special drawing rights is equal to approximately R23 730.
If the flight is a domestic flight, then the Consumer Protection Act is applicable. Section 65(2)(b) and (c) of the Act provides that when a supplier has possession of property belonging a consumer, then the supplier in the handling, safeguarding and utilisation of that property, must exercise the degree of care, diligence and skill that can reasonably be expected of a person responsible for managing any property belonging to another person; and is liable to the owner of the property for any loss resulting from a failure to comply with this duty. So you can claim the actual loss you suffered from the airline.
By way of example, here are the terms and conditions South African Airlines with respect to their liability of damaged goods:
- In their terms and conditions, SAA do not accept liability for the damage resulting from hard-shell bags and protruding parts such as wheels and straps. The reason they have for this exclusion is that such bags are generally not designed to withstand the stacking procedures followed when loading baggage into an aircraft.
- However, the CPA requires the supplier to exercise the degree of care, diligence and skill that can be reasonably expected, and SAA’s stacking procedures should be compliant with this provision.
- So consumers can ignore an airline’s terms and conditions if they contradict the Consumer Protection Act duty we referenced above- and point out to the airline that the terms are void if they are inconsistent with the Act.
A tip on how to claim for your damaged luggage is to use social media. Social media has become a powerful tool to gain the attention of airlines.
- Firstly, lodge a claim with the airline’s customer service then post on Facebook, X or TikTok, tag the relevant airline and your chances of receiving joy are increased. If you are provided with a reference number, include it in your post, to ensure that the airline does not delay in assisting you.
- Find the email address for the airline’s legal department online and submit your claim, along with quotes or receipts providing the replacement cost of the lost or damaged goods. Give a deadline for reply a week after submitting the claim and explain that you will take them to court.
- Follow up by email and post on social media if the deadline is not met.
- If you are completely ignored, report the airline to your province’s Office of the Consumer Protector / Consumer Affairs Tribunal / consumer court or take them to the Small Claims Court
Trudie Broekmann