Airlines Liability Caps: Exploring Alternative Remedies For Passengers

Introduction.

Air passengers and carriers/airlines are constantly involved in the thorny affair of breached rights and obligations and the consequential liabilities that result. Issues arise from missed or delayed flights, refunds, loss of baggage, and personal belongings, among other matters. What is manifest from the foregoing is that passengers are usually left in limbo and are unaware of their rights, particularly regarding items or belongings of significant value.

Air passengers have repeatedly experienced negligence in their contractual relationships with air carriers. This is almost always present in the daily flight statistics worldwide, with delayed flights or lost, damaged, or delayed baggage or cargo. For example, Société Internationale de Télécommunications Aéronautiques (SITA) global baggage statistics reported 36.1 million air passenger mishandled bags by air carriers worldwide in 2023 alone.

Over the years, from the Warsaw Convention to the Hague Protocol, followed by the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal (the Montreal Convention 1999 or the Convention), several international treaties have been established by countries to curb these incidents by imposing measurable liability on carriers. The Montreal Convention of 1999 appears to be a saviour in addressing this problem because, unlike its predecessors, it places the liabilities firmly on the carrier and shifts the burden of proof from passengers to airlines. Additionally, it raises the compensation amount payable by carriers. The convention is so definitive that it tackles ordinary negligence in the relationship between carriers and their passengers or consignors. It outlines both liability and limitation of liability for this negligence.

The convention's liability limitation provision caps the extent of the carrier's financial liability for negligence in cases of lost, damaged, or delayed baggage. Why is there a limitation on the right of passengers or consignors to hold carriers liable? Is the limitation absolute? Are cargo owners with claims that exceed the specified responsibility limit still covered by the Convention, which appears to be a scale of justice that weighs sides to balance on equity, as evidenced by its provision for liability limitation? Are there other remedies available when the stated limit of liability does not cover the damage incurred by the passenger or consignor? These are questions that this article aims to answer.

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