Bagage endommagé: Faq

Article 22(5) of the Montreal Convention provides that the liability limit can be exceeded if you prove, in addition to your damages, that:

• the damage resulted from an act or omission of the carrier, its servants or agents;
• the act or omission was done with intent to cause damage or recklessly and with knowledge that damage would probably result; and
• the servant or agent was acting within the scope of their employment.

Relevant case law:

• Connaught Laboratories Ltd. v. British Airways, 2002 CanLII 4642 (ON SC)
• Connaught Laboratories Ltd v. British Airways, 2005 CanLII 16576 (ON CA)
• Mudrinic v. Air Serbia, Decision No. 8-C-A-2018, paras. 24-29

The first carrier and the last carrier are jointly and severally liable for baggage-related claims. The first carrier cannot insist that you claim damages from the last carrier. You should tell the first carrier that it must compensate you based on the following precedent:

• Lukács v. WestJet, Decision No. 420-C-A-2014

Compensation payable under the Montreal Convention or the Tariff must be “paid in the form of cash, cheque, credit to a passenger’s credit card, or any other form acceptable to the passenger.” Travel vouchers are mere goodwill gestures, and do not relieve the airline from paying compensation.

• Decision No. LET-C-A-83-2011 of the Canadian Transportation Agency

The airline is liable for damage to the contents of your checked baggage regardless of what the terms and conditions say. You should tell the airline that it must compensate you based on the following precedents:

• Muoneke v. Compagnie Nationale Air France, 330 Fed. Appx. 457
• United States DOT Advisory (74 Fed. Reg. 14837-38)
• Société Air France, Violations of Article 17 of the Montreal Convention and 49 U.S.C. § 41712, Consent Order issued by the Department of Transportation, Docket OST 2010-0005
• Lukacs v. WestJet, Decision No. 477-C-A-2010
• Lukacs v. Air Canada, Decision. 291-C-A-2011

If the airline accepts checked baggage for transportation, it cannot absolve itself from liability for the loss of certain property which is not acceptable for transportation, with or without its knowledge. The airline can avoid liability for damage to your baggage only if it proves that the “damage resulted from the inherent defect, quality or vice of the baggage.” The burden of proof is on the airline, and it is a very heavy one. You should tell the airline that it must compensate you based on the following precedents:

• McCabe v. Air Canada, Decision No. 227-C-A-2008, paras. 24
• Lukacs v. Air Canada, Decision No. 208-C-A-2009, para. 25
• Kouznetchik v. American Airlines, Decision No. 99-C-A-2011, paras. 46-47
• Lukacs v. United, Decision No. 467-C-A-2012, paras. 94-95

The airline is liable for damage to your checked baggage from the time you handed it over to the airline until it is returned to you, regardless of who caused the damage. You should tell the airline that it must compensate you based on the following precedents:

• Zimmermann v. Skyservice, Decision No. 211-C-A-2004 para. 24
• Pedneault v. Kelowna Flightcraft, Decision No. 371-C-A-2005, paras. 22-24
• Lukacs v. United, Decision No. 467-C-A-2012, paras. 86-88

The airline is free to seek compensation from CATSA and/or TSA and/or third parties. (See Article 37 of the Montreal Convention)

The airline can avoid liability for damage to your baggage only if it proves that the “damage resulted from the inherent defect, quality or vice of the baggage.” The burden of proof is on the airline, and it is a very heavy one. The airline cannot exclude liability for damage to wheels, straps, zippers, handles and other luggage parts beyond normal wear and tear. You should tell the airline that it must compensate you based on the following precedents:

• Lukacs v. Air Canada, Decision No. 208-C-A-2009
• Kipper v. WestJet, Decision No. 309-C-A-2010
• United States DOT, Notice regarding damage to wheels, handles, and other components of checked baggage