Circumstance in Which a Carrier Will Not Be Liable for Damages Related to Missing Items

CASE TITLE: OLAOYE v. KENYA AIRWAYS (2024) LPELR-61846(CA)

JUDGMENT DATE: 28TH MARCH, 2024

JUSTICES: MUHAMMED LAWAL SHUAIBU, JCA
HANNATU AZUMI LAJA-BALOGUN, JCA
JANE ESIENANWAN INYANG, JCA

DIVISION: ABUJA

PRACTICE AREA: AVIATION LAW

FACTS:

This is an appeal against the judgment of the Federal High Court, delivered on November 19, 2019.

The Plaintiff had purchased a return ticket to travel from Abuja to Yaoundé, en route Nairobi, on 12th May 2015 to attend a conference. However, upon his arrival in Yaoundé, he discovered that his luggage was missing. The Plaintiff repeatedly visited the Defendant’s desk office at the airport, but his luggage remained missing throughout his stay. He eventually returned to Nigeria on May 18, 2015, without his belongings.

The Plaintiff’s luggage was eventually delivered to him on May 27th, 2015, but he claimed that valuable items, including a camera, a bottle of perfume, and a Cerruti wristwatch valued at N250,000, were missing from his luggage. Consequently, he filed a suit against the airline, seeking several forms of relief. He demanded an unreserved apology from the Defendant for the inconvenience caused, the payment of USD 5,000 for lost items and other expenses, USD 1,000 for a conference he could not attend due to the delay, N10,000,000 in general damages, and the costs of the suit.

The Defendant, in response, denied liability for the missing items, relying on Article 17 of the Montreal Convention 1999, which governs international air carriage and had been domesticated under Nigerian law through the Civil Aviation Act 2006. The Defendant argued that it had discharged its obligations by eventually delivering the Plaintiff’s luggage and was not responsible for the missing items.

During the trial, both parties presented one witness each, and documentary evidence was tendered. After evaluating the evidence, the trial Court held that the Plaintiff’s case lacked merit and dismissed the suit in its entirety. Aggrieved by the trial Court’s decision, the Plaintiff, now Appellant, filed an appeal, challenging the judgment.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

1. Did the learned trial Judge properly interpret and apply the provisions of the Montreal Convention of 1999 in evaluating the dispute?

2. By the preponderance of evidence at the trial Court, was there proper evaluation by the trial Court to arrive at its decision?

COUNSEL SUBMISSIONS:

In this case, the Appellant’s counsel argued that the trial Court misinterpreted the provisions of the Montreal Convention of 1999, particularly Articles 17 and 19. The core of the Appellant’s argument was that Article 17(3), which deals with the loss of baggage, was incorrectly applied by the trial Court. According to the Appellant’s counsel, Article 17(3) is relevant only to situations where baggage is lost, not delayed. The counsel argued that the Court should have applied Article 19, which governs liability for delays in delivering baggage.

The Appellant’s counsel maintained that the Respondent was negligent in handling the Appellant’s baggage, which arrived 16 days late, thereby causing inconvenience and loss to the Appellant. The counsel cited several cases to support the Appellant’s entitlement to damages, arguing that under Article 19, the carrier is liable for damage caused by delay unless it proves that it took all reasonable measures to prevent the delay or that such measures were impossible. Furthermore, the Appellant’s counsel referred to the Respondent’s letter of apology, admitting to the delay, as an acknowledgment of fault under Article 19.

The Appellant’s counsel also argued that the trial judge misapplied the Montreal Convention by prioritizing the Respondent’s General Conditions of Carriage, which purported to limit liability based on the contents of the baggage. According to the counsel, the Montreal Convention supersedes the General Conditions of Carriage, and the trial judge erred by allowing these conditions to override the legal obligations imposed by the Convention.

In response, the Respondent’s counsel argued that the trial Court had correctly applied the law. It was maintained that Article 17(3) was appropriately invoked because the baggage was not lost but delayed, and it was delivered within the 21-day period prescribed by the Convention for determining lost baggage. Since the baggage was not considered lost, the Respondent’s liability was limited under Article 22 of the Convention, which sets liability limits for loss, delay, and damage to baggage.

The Respondent’s counsel further contended that the Appellant failed to make a special declaration of the value of his baggage at the time of check-in, which would have entitled him to claim more than the standard compensation. As such, the Appellant’s claim for additional compensation should be limited to the provisions of the Montreal Convention, which the Respondent complied with.

The Respondent’s counsel also pointed out that the Appellant included prohibited items in his checked baggage in violation of the contract of carriage, specifically Clauses 8.3.4 and 8.3.5, which absolve the carrier of liability for such items. It was argued that the trial Court was correct in considering this violation when ruling against the Appellant’s claim.

Finally, the Respondent’s counsel argued that the Respondent had acted within the law by offering to reimburse the Appellant for the receipts provided, within the liability limits of the convention, and even offered a travel voucher as compensation, which the Appellant rejected. In light of the evidence and the applicable law, the Respondent contended that the trial Court’s decision was fair and in line with the provisions of the Montreal Convention.

DECISION/HELD:

The issues having been resolved against the Appellant, the Court held that the appeal lacked merit and accordingly dismissed same.

RATIO:

AVIATION LAW – AIR CARRIER LIABILITY: Circumstance/instance when a carrier will not be liable for damages with regard to missing items

“The thrust of the Appellant’s Claims before the lower Court were for payment of cost of N250,000. (Two Hundred and Fifty Thousand Naira) for his camera, bottle of perfume and a Cerruti wristwatch. These were discovered missing after he received his checked baggage. The payment of Five Thousand Dollars or its Naira equivalent, is the cost of the lost items and cost of purchase of medications and clothing apparel purchased by the Plaintiff. The payment of One Thousand Dollars or its Naira equivalent, being the cost of the conference, which the Appellant could not attend due to the misplacement of his bag and payment of ten million naira as general damages and an unreserved apology for the inconvenience and the neglected handling of his baggage.

It is evident from the evidence led at the lower Court as contained at pages 167–170 of the Record of Appeal that the items that the Appellant claimed were missing are prohibited by Clause 8.3.4 and 8.3.5 of the contract of carriage incorporated in the e-tickets, Exhibits E and E1, issued to the Appellant to which he was inextricably bound. The Respondent was therefore exculpated from liability to pay damages with regard to the missing prohibited items. I so hold.

The moment the Appellant was issued with the e-ticket of the Respondent, he entered into a contract of carriage of air with the Respondent and was bound by the terms and conditions of the contract in the e-ticket, whether he was aware of the terms or not. See CAMEROON AIRLINES v MR. MIKE OTUTUIZU (2011) LPELR – 1353 (SC).

The learned trial Judge at pages 195 – 197 held, inter alia, thus,

‘…The above terms and conditions are part and parcel of the contract entered into by the parties and by necessary implications, parties are bound by it having been incorporated by reference. The plaintiff clearly breached this contract by putting his Nikon Camera, medication, which are in the class of a personal electronic device or computer and valuables in said baggage. The plaintiff, having elected to put such items, must bear the consequences because the defendant cannot be held liable or responsible for such items…’ I am of the considered view that the Appellant failed to prove that the Respondent was willfully negligent in handling his checked baggage, which occasioned its delayed arrival and concomitantly failed to establish his claims as to entitle him to the reliefs he sought before the lower Court. The learned trial Judge rightly evaluated the evidence adduced during the course of trial and applied the extant laws to the findings of facts before he arrived at his decision. I therefore see no reason to interfere with the unassailable reasoning of the learned trial Judge and his decision. “Per INYANG, J.C.A

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