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10.05.2021

LIABILITY LIMITS IN REGARDS TO DELAY, LUGGAGE AND FREIGHTAGE UNDER THE MONTREAL CONVENTION

The Montreal Convention is an international consensus regarding the combination of particular rules on aerial international transportation, including all international transport of passengers, luggage and freightage by air for a fee; the general purpose, extent and liability limits will be perused in our article. That is to say;
 
The Montreal Convention started to be enforced in our country in accordance with the 90th article of the Constitution by being published in the Official Gazette dated 14.04.2009 and numbered 27200. Hereby with this agreement; unlike the Warsaw Convention to which we are a party in international transport, it serves the purpose of narrowing down the supportive aspect of the Warsaw Convention to airlines even more, featuring the interests of passengers and accident victims. With this purpose in mind, THY became a party to the International Air Transport Association (IATA) Agreement in 1997, and as part of this agreement, it has accepted the onus probandi, which is stricter than the Warsaw Convention in terms of absolute liability up to 100,000 SDR (approximately US $ 152,000) and defect liability above this limit. Nevertheless, since this binary system was not able to fully provide conservation, the balance of interests between the Montreal Convention and the passenger-airline-freightage company was tried to be fully ensured.
 
While the liability limits of the carrier are designated hereby with this contract , an obstacle stemming from the Montreal Convention against the carrier not being a party to any contract of carriage, desisting any protection implemented by the Montreal Convention, or refusing to enforce conditions contrary to the verdicts of the Montreal Convention, within the scope of its freedom to contract also does not exist.
 
Any carrier that allows passengers, baggage and freightage is subject to the rules of the contract, unless it renounces the Montreal Convention. Furthermore, each carrier is considered as a party to the contract where the transport took place under its surveillance. Thus, the person who has the right to compensation within the framework of the contract can sue the carriers who followed through the transportation thereat the accident, delay or damage.
For damages within this extent, the case is opened either at the place of habitation or the place of essential work within the borders of one of the contracting countries; or the courts where this contract is concluded and where the office owned by the carrier is; or at the courts of destination, depending on the claimant’s choice. 
 
LIABILITY PROVISIONS AND ITS LIMITS
 
Based on the 18th article of the contract, for the cargo transportation, in case the cargo is ruined, lost, or damaged; the carrier is liable only if the event took place during the air transport. For the luggage transportation, according to the article 17/2; in case that the checked baggage is ruined, lost or damaged, the carrier is only liable if the event took place in the aircraft or while the checked baggage was under the carrier’s charge. Lastly, in all transports, the carrier; is responsible for damages which occur during the delays in the air transport of passengers, luggage and freight.
 
The carrier can only be exempted from these liability provisions, if proves that the depredation, loss or damage to the cargo came off as a result of one or more of the incidents given down below; 
As follows;
●      Defects in the cargo itself, quality and badness of the cargo;
●      The packaging of the cargo being made imperfectly by someone besides the carrier, its employee or the agency;
●      Warfare or gunfight;
●      A public authority action carried out related to the entry, exit or passage of cargo.
 
Furthermore, the compensation liability for cargo-luggage and damage derived from delay is not unlimited and its limits are arranged by the SDR (Special Drawing Right) unit in the contract. That is to say;
♦   In passenger transport as stated in Article 19, in the case that damage is caused by delay, the liability of the carrier for each passenger is limited to 4150 SDR (Special Drawing Right).
♦   For luggage transportation, unless the passenger makes a special declaration of benefit to the carrier, for the delivery of the checked baggage at the place where the baggage will be delivered to and does not make an additional payment if the situation requires, liability of the carrier for each passenger is limited to 1000 Special Drawing Rights (SDR) in case the luggage is ruined, lost or damaged.
 
♦   For luggage transportation, unless the passenger makes a special declaration of benefit to the carrier, for the delivery of the checked baggage at the place where the baggage will be delivered to and does not make an additional payment if the situation requires, liability of the carrier per kilo is limited to 17 Special Drawing Rights (SDR) in case the luggage is ruined, lost or damaged. Otherwise, the carrier will be liable to pay an amount not surpassing the proclaimed total, unless it can prove that the overall payable is more than the actual benefit the sender would have on delivery on arrival.
 
 
As is seen; under the Montreal Convention, liability limits are limited to the SDR amounts given above, in case of damage derived from the transportation of luggage and cargo, unless the passenger or the consigner proclaim special benefits. Hence, in cases filed within this extent, a judgment is made by the judge / arbitrator in accordance with the request of the parties, but not exceeding the limits given above.
 
 
Thus, in the decision of Istanbul BAM (Circuit Courts of Appeal), 13. HD., E. 2019/18 K. 2020/879; “The case is regarding a claim for pecuniary and non-pecuniary damages derived from the international airline carriage contract. In accordance with the Article 18 (1) of the Montreal Convention applicable to the dispute at issue, the carrier will be liable for damage caused by destruction, loss or damage of checked luıggage and with Article 19, passengers in air transport will be liable for damage deriving from delay of luggage or belongings. The liability of the carrier is the same as the actual amount of damage, and is limited to the amount stated in article 22 of the contract. The Montreal Convention does not prescribe a general exclusion reason for the airline carrier, besides the given relief reasons for transportation of luggages. Evaluating on the article 18 of the Montreal Convention, it is explicit that the airline carrier will be liable for the incidental damage which took place during the transportation process, and will also be responsible for the actions of executives, agency and other persons.
 
 
 Nonetheless, it is only possible to get rid of liability by asserting four (4) different reasons for relieving liability. In the concrete case, considering the damage which took place during transportation, the reasons for relief from liability based on the packaging defect or war and martial law or public authority action; it is observed that the reason to relieve liability regarding the damage-wetness identified at the end of the transportation process has not been revealed. When the goods taken dry and sound for transportation were found damaged at the destination, it was understood that the damage happened during the transportation process and the defendant was responsible for it.
 
According to the Article 22/3 of the Montreal Convention, if no special interest is stated for the cargo, the liability of the carrier in the transportation of luggage and cargo is limited to 19 SDR per kg of lost or damaged goods. Limited liability can never turn into an unlimited one in terms of luggage transportation or cargo. It has clearly appeared within the extent of the whole file that the goods taken as full and sound into the transportation process are damaged at the destination, and it is determined that the work of the claimant in the field of pastry was lost during the liability of the defendant pursuant to the Montreal Convention. Pursuant to the Article 22/2 of the Montreal Convention, considering the fact that unless the passenger makes a special declaration of benefit to the carrier, for the delivery of the checked luggage at the place where the luggage will be delivered to and does not make an additional payment if the situation requires, liability of the carrier for each passenger is limited to 1000 SDR in case the luggage is ruined or lost; Exceeding the limited liability status requested by the claimant regarding the pecuniary damage; it is understood that complaints such as financial loss and loss of earnings were not considered appropriate and that the defendant was responsible with 1000 SDR according to the liability principle. In the concrete example, the compensation calculated based on the official SDR rates given at www...gov.tr ​​on the date of reclamation is 10200.60 TL; it is explicit that the defendant must compensate all of it.” utilizing such matters, the claim for pecuniary damage exceeding the limited liability amounts mentioned above of the passenger who has not made a special declaration of benefit is rejected and provisions are made upon the SDR limit.
 
Lastly, it is crucial to state that, in consideration of the carrier liability provisions explained above; a report must be filed within 7 days after the person authorized to receive the checked baggage has noticed the damage, to be able to start a case / arbitration against the carrier for damages caused by luggage, cargo or delay. A report must be filed within 14 days from the date of delivery in case the damage comes off in the cargo, and for delay, within 21 days from the date that the cargo should have been given to its own use. Failing that, if no report is filed within the aforecited periods, no measures can be taken against the carrier, except for the carrier's bad intentions. Either case, if a case is not started within the 2-year period calculated from the date of arrival at the destination, the claims relative to the damage will be invalid. 
 
All in all, the damage liability provisions of the Montreal Convention have been explained above, and are applied and compensated within the limits evinced in the respective articles according to the nature of the concrete case in the disputes.