By Mr Sam Oosthuizen and Mr Marc Friedman

In the recent yet unreported case in the Johannesburg High Court of Impala Platinum vs. KLM and another, a consignor of certain valuable goods instituted action against an airline as the carrier of the goods for the payment of a substantial amount being the alleged value of the goods which were lost en route to a foreign destination.

Impala alleged that the carriage of the goods constituted "international carriage" within the meaning of the Warsaw Convention as ratified by the Carriage by Air Act. The claim was accordingly based on the provisions of the Convention as it applies to the international carriage of goods by aircraft for reward.

Impala relied on the Appellate Division case of Pan American World Airways Incorporated vs. SA Fire and Accident Insurance, which is the leading case on the interpretation of the provisions of the Convention and underlines the main principles of the liability of carriers in terms of the Convention.

At the pre-trial conference, the parties in the Impala case agreed on the separation of issues, and only certain separated issues were decided by the Court. The Court had to consider the decision in the Pan Am case, particularly the locus standi of a consignor to sue a carrier under certain circumstances. Impala, relying on the Pan Am decision, argued that a consignor would have locus standi to sue even though it may not have suffered damages. The Court held that a consignor who had suffered no damages would not be able to sue. The matter is currently the subject of an appeal in the Supreme Court of Appeal in Bloemfontein.

An issue that remains to be decided, should the appeal succeed, is the applicability of article 22(2)(a) of the Convention. This article provides that the carrier's liability in respect of loss or damage to cargo in transit is limited to just over R100 per kilogram, unless the passenger or consignor at the time of handing the luggage or goods over to the carrier makes a special declaration (for which the passenger or consignor would obviously be charged an additional fee). Should such a declaration be made, the carrier will be liable in the case of loss or damage to pay a sum not exceeding the declared sum.

Although this would appear to be unfair, one should consider that the convention dates back to 1929 and came about as an attempt to unify certain rules relating to international carriage by air, and as such, the specific provision was in all probability introduced to protect what was then a fledgling industry. Airlines may, however, not act recklessly as article 25 of the Convention provides that the limitation of liability shall not apply if proved that the damage was intentionally or recklessly caused by the carrier.

Passengers on international flights should be careful not to transport valuable items in their baggage unless the value is specifically declared to the airline, or such items are insured. Failure to do so, in the event of loss or damage to such valuable items would result in the passenger's claim being limited, unless of course the passenger can produce sufficient evidence to rely on the provisions of Article 25. So watch out - it is not worth hiding your overseas shopping in your luggage to avoid paying the import duty.

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