Baggage delays happen, but airlines are pretty darn good at getting your bag to you in a timely fashion. Often credit card insurance will provide some sort of compensation, but did you know there’s a legal mechanism to seek reimbursement for damages in the event of delayed baggage, however short that delay is? Let’s take a look at the law…
The Montreal Convention applies to baggage transported between two member countries (most countries are party to the Montreal Convention). Regarding baggage, Article 22 s.2 states:
In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights 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 at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.
First, you’re probably asking yourself – what the heck is a Special Drawing Right? Essentially, it’s a made-up currency (“SDR”), and as of today’s date, 1000 SDR is worth 1847.82 CAD. This provision means that the carrier’s maximum liability in the event of loss or delay of baggage is the equivalent of 1000 SDR in the local currency, unless the value of the baggage is declared prior to travel. Note that Air Canada’s website and international tariff refers to the maximum as 1,131 SDR, and so does Wikipedia.
The text of the Montreal Convention does not reflect this. I don’t know why the numbers are different. If anyone knows why, please leave a comment and I’ll update the post accordingly. Reader ‘Nankin’ commented with a statement by the DOT that reflects updated SDR values in 2009.
The Montreal Convention is a reimbursement scheme, not a compensatory scheme. If your baggage is delayed, and as a result of that delay you experienced damages, the Montreal Convention mandates that the carrier reimburse you for your damages. Now, how do you get damages? Well, say you bring baggage with a suit. That baggage is delayed by six hours. Four hours after you land, you have a very important business meeting, where a suit is required. Because the carrier delayed your baggage, and as a result of that delay you were without something that you required, and you purchased that thing as a result which you wouldn’t have otherwise purchased if your baggage wasn’t delayed, you have damages. In our example, but for the delay of your baggage, you would have had the required suit for the meeting, but now you don’t, so you have to purchase a suit, the carrier is liable to reimburse you for that damage pursuant to the Montreal Convention with a maximum value of 1,131 SDR.
Let’s put this in simple terms – if there was something in your baggage that you needed during the course of the delay, and you purchase those items to compensate for the delay, the airline must reimburse for your purchases up to a maximum of 1,131 SDR. The key points are that you have to have purchased the items (it’s not a compensation scheme), and you have to have a reason to require what was in your delayed baggage. If you weren’t planning on wearing the suit until day three, and your baggage arrives only six hours late, you’re not eligible for reimbursement for a suit (but may be eligible for those things that you needed for those six hours – maybe you like to change clothing four times a day, so you needed to buy a new set of clothes for that six hours).
Except for the 1,131 SDR limit, there doesn’t seem to be a requirement to spend the same value of the delayed item. This makes sense – if you bought a $600 suit in Bangkok, and you land in London, there isn’t a reasonable expectation that you find a suit in London for $600. The expectation is that you are able to reasonably compensate for your requirements. If the meeting in London was with hoity-toity people, then it’s reasonable to buy a reasonably hoity-toity suit. That is, the replacement item does not need to be of the same value as the item delayed, but only needs to satisfy the reason that you need it. If you require a fine cotton t-shirt, which you can maybe buy at home for $50, but you can only find a Burberry cotton shirt costing $300 to satisfy that need, so be it.
We all know having a right and engaging that right are two separate things. Airlines aren’t a fan of this rule, and will almost always dismiss your request for reimbursement. Some airlines will give you a small amount of cash at the airport. Note that this cash does not waive your rights to reimbursement, but can be applied against that 1,131 SDR total. When your baggage is delayed, immediately make a claim at the airport. Make sure you receive appropriate documentation of the delay. The moment you have that form, you can start incurring damages (buying stuff) until you get your baggage in your possession. Many airlines will try to claim that you aren’t due compensation if you are returning to your home airport. This is not true. So long as you flew between two Montreal Convention countries, the rules still apply. Now, a big rule of law is that you are expected to do your best to limit your damages. So if you can grab another suit from home, you’ll have a hard time arguing you needed a new suit for that meeting. But if your only suit was in that baggage, you should be eligible for reimbursement.
Some items are not eligible under the rules. These are usually jewelry, electronics, documents, etc. The rule applies to cover things like clothing, hygienic supplies, cosmetics, etc.
When making a claim with a carrier, do so as quickly as possible. You usually need to make the claim within 14 – 21 days. Keep all original receipts. Make photocopies if you can. Write a letter explaining why you needed every item you’re claiming. For example, if you bought the suit, you could state: “I had a pre-planned meeting at 6PM on December 4, 2016. My delayed baggage did not arrive until 9PM. This meeting was a business meeting, and in my business, I required a suit. I bought a suit for $1200 as shown on the receipt. This suit was appropriate for the meeting.” If you can, providing an affidavit could be helpful. FAX or MAIL all documents to the carrier. Every carrier has their own communication rules. Make reference to the fact that you’re engaging your rights pursuant to the Montreal Convention. Hopefully they won’t give you too much of a hassle, but if they do, you may need to make a complaint to the relevant regulator (in Canada, complaints can be submitted to the CTA, and in the US, to the DOT).
It’s important to note that different rules apply if you are travelling on a domestic itinerary in Canada. I will cover those rules in a different post. Note that there are more rules and exceptions, but this article provides a very good overview and will be generally applicable in most instances. More information about Air Canada’s rules can be found in their International Tariff. As always, this is not legal advice, and I am not a lawyer. Always consult with a legal professional.
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