Austrian Supreme Court decides on air carrier liability for checked baggage and exclusivity of the Montreal liability regime

Michael Wukoschitz's picture

The plaintiff's father was booked on a flight from Vienna to Istanbul, operated by the defendant. He intended to check two suitcases and keep a smaller bag as cabin luggage. Upon check-in the passenger was told that with regard to its size and weight the bag did not meet the requirements for cabin luggage. He was asked to open the bag and the airline staff at the check-in desk could see that it contained variuos documents, some jewellery, antiques and several spectacles. The passenger was not told that he had the possibility to make a declaration of interest for greater value with regard to the content of the bag. He checked the bag with the two suitcases and paid extra fee for the overweight. When he arrived in Istanbul, the bag was lost. Some time later it was found but damaged, several items including the documents jewellery and antiques were missing or destroyed.

The passenger assigned his claims to his son who filed a law suit for damages of EUR 8111,50 including the value of the missing or destroyed items and loss of business opportunities. The carrier referred to its limited liability pursuant to Article 22 of the Montreal Convention.

The first instance court (BG für Handelssachen Wien) dismissed the claim as far as it exceeded the equivalent of SDR 1000. The appelate court (Handelsgericht Wien) upheld this judgement.

The plaintiff filed a further appeal to the Supreme Court (OGH) arguing that the carrier had breached its contractual duty to inform on the possibilty of a declaration of interest for greater value and therefore could not refer to limited liability.

In its judgement of Dec. 17, 2012, the Supreme Court held that there was no duty of the carrier under the Montreal Convention to inform passengers on this possibilty. Pursuant to Article 29 any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Convention. The plaintiff therfore had no claim under national contract law as such claims were excluded by Article 29. The Supreme Court therfore upheld the decision of the lower courts.

Case Details: OGH judgement of 17 Dec. 2012, 10 Ob 47/12b; full text available in German here>>.

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