In late 2012, the European Court of Justice released its ruling
in the matter of Sanchez v. Iberia Airlines, in which it had been
asked to decide whether an airline was liable for loss of baggage
to multiple passengers who had packed items in the same bag, or
whether compensation was only available to the passenger who had
checked the bag.
The Court was called on to interpret Article 22(2) of the
Montreal Convention, which is an international convention that
governs the liability of air carriers engaged in international
carriage. This Article states that in the case of destruction,
loss, damage or delay of baggage, an airline's liability will
be limited to 1,131 Special Drawing Rights (approximately $1,750
CAD) "for each passenger unless the passenger has made, at the
time when the checked baggage was handed over to the carrier, a
special declaration of interest in delivery". The Court
concluded that "each passenger" meant each passenger
whose items were packed in a bag, and not, as the airline had
argued, each passenger who had checked a bag.
In arriving at this interpretation, the Court relied on the
definition of "baggage" in Article 17 of the Convention,
which consists of "both checked baggage and unchecked
baggage". It appeared to conclude that including
"unchecked baggage" in that definition suggests that
passengers may claim damages whether or not they checked
The Court also felt that to deny compensation to passengers who
did not check baggage was inconsistent with one of the objectives
of the Convention, to ensure protection of the interests of
As a result of the decision, the airline was required to pay
compensation to each of four family members, including two
children, whose items were contained in two suitcases that had been
Interestingly, this interpretation of Article 22(2) is contrary
to that arrived at by Canadian courts. For example, in the 2008
decision of Holden v. Ace Aviation, an Ontario court concluded that
only the passenger who had checked the bag at issue was eligible
for compensation. It found that if "each passenger" were
interpreted to include persons who had not actually checked the
bag, the second part of Article 22(2) (that liability is limited
"unless the passenger has made, at the time when the checked
baggage was handed over to the carrier, a special
declaration...") would not make sense. Further, the Court felt
that this interpretation met the Convention's objectives of
uniformity, consistency, certainty and predictability with respect
to the rights and obligations of carriers and passengers.
This interpretation was adopted by the British Columbia Small
Claims Court in the 2012 decision of Khabazian-Isfahani v. WestJet
Airlines Ltd., in which a passenger who had packed items in a bag
checked by his girlfriend was refused compensation for delay. The
Court concluded that to allow a person to step forward after the
fact to claim for items said to have been carried in someone
else's luggage would make carriers vulnerable to unanticipated
and unpredictable claims.
This conflict in the reasoning between courts is unfortunate, as
it goes against one of the overarching goals of treaty
interpretation, which is international consistency. It also
introduces uncertainty for passengers regarding the availability of
compensation for lost or delayed baggage.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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