Refund due for the loss or the damage of the baggage

After a long journey by plane, boat, train or bus, many passengers, in the retrieve their luggage, unfortunately discover that the same (and / or goods inside) suffered some damage during transport or in sometimes, it has even been lost.

The questions that are asked routinely, in these cases, not so much concern the right to compensation for damages, but rather the size of the same and, above all, does that also include the value of goods inside the luggage.

The carrier’s liability for loss or damage of the goods transported

Before answering these questions, it is necessary to analyze the legislation which provides for the liability of the carrier (air, sea, rail or road) for damage to goods transported.

In our system, it is art. 1693 of the Civil Code to establish that ” the carrier is liable for loss and damage of delivered to him things for the transport, from the moment you receive them that on which the delivery to the recipient” , unless he can prove that the damage is derived from:

fluke;
by nature or by the vices of the things themselves or their packaging;
of whether the sender or recipient.

The liability of the carrier, therefore, must be considered as alleged in the event that the loss (loss, destruction or irreparable damage) or the ‘ failure (partial damage) of transported things have occurred during the interval between the time of delivery of the same to that the return to the passenger. With the result that the carrier, to get rid of such a presumption of responsibility, must provide the clearances indicated above tests.

Delivery and luggage registration

Article. 1693 cc, however, would seem to ensure that legal protection only to checked baggage, omitting any reference to those not delivered (hand luggage) or unregistered.

It does not.

In the various types of travel the ticket price also includes the transport of luggage of the passenger, which constitutes a ‘ ancillary obligation to that of the transport of the latter. The carrier, in fact, is obliged to carry the luggage in the weight limits and predetermined volume in the initial conditions.

The registration of the luggage, also gives rise to the signing of a separate contract of carriage of things and involves only the payment of a special fee (in cases of excess weight or extraordinary dimensions).

This means that the carrier’s liability is extended to all the luggage , delivered or not and irrespective of their registration, but the main difference lies in the ‘ burden of proof : in the case of baggage delivery release test will be borne by the vector, whereas, in case of non-delivery, it will be up to the passenger to prove the guilt of the carrier.

The carrier’s liability in the different types of transport

The burden of proof, however, in delivery or fewer cases of luggage, has different characteristics in the various types of transport.

In particular, in that:

Maritime , for luggage:
1. delivered (closed), the carrier responsible for the loss or damage of the same, unless it proves that the same is due to causes not attributable to him;
2. not delivered, the carrier is liable only if the passenger can prove that loss or damage was determined by causes attributable to the carrier.
Plane , the air carrier may exempt from the presumption of liability only if it can prove that it has taken all necessary and possible measures, in the normal care, to avoid damage. For baggage:
1. delivered : the carrier must prove, in addition, the damage is derived from nature, quality or vice of the goods or packaging defective thereof;
2. not delivered : the passenger must prove that the loss or damage have occurred at the beginning of landing operations for reasons attributable to the carrier.
Railway , the carrier’s liability is assumed by the conclusion of the contract until the delivery, unless he proves that the damage to the goods transported are derived from defects or improper packaging of the same, or from the fact / omission of the sender / recipient, or finally from fortuitous.
Road , the carrier is liable on a presumptive basis from the time of delivery to the time of delivery, provided that proves the same reasons provided for rail transport.

The extent of the damages and the value of goods inside luggage

After this long introduction, we can answer the initial question: how much damages for the loss, destruction or damage of luggage? The compensation also includes the value of goods inside luggage or passengers are entitled to an additional compensation?

Damages

The answer to the first question varies according to the type of transport and of delivery of the luggage; limited to air transport, in addition, an additional variable is represented by accession or less of the Member to the Montreal Convention of 1999.

We must add, moreover, that in transport the currency of compensation consists of the SDR ( Special Drawing Rights : at current exchange DSP 1 = 1.19 euros).

In transportation:

Rail , for luggage:
1. delivered , passengers are entitled to compensation of 40 SDRs per kilogram or 600 SDRs for each package;
2. not delivered, the compensation is equal to 700 SDR per passenger.
Maritime , for luggage:
1. delivered : the compensation is equal to € 6.26 per kilogram;
2. Undelivered : there is no limit to the compensation.
Plane , passengers are entitled to compensation of up to 1,131 DSP or, in case of non-adherence of the state to the Montreal Convention, to 17 SDR per kg in the case of checked baggage; for unchecked baggage compensation amounts to 332 SDR per passenger.

Limited transport aircraft , it is important to add that, in order to obtain compensation for the loss, passengers are obliged to complain to the airline within seven (7) days from the date of delivery of luggage (term extended to 21 days if delivery takes place in a delay) and, in case of negative answer / no answer, sue within a period of 2 (two) years from the day of arrival of the aircraft (or not as expected, if the flight has been canceled), beyond which the right is prescribed.

The compensation for loss of assets provided within the luggage

The answer to the second question is partially negative: the goods carried in baggage, generally, not only refundable, unless the passenger decides to adjust the luggage and deliver to the carrier a declaration of value of the baggage was obviously paying an additional supplement for transport.

This statement, in fact, allows the passenger, in case of loss of luggage or damage to the goods inside the same, to get the limits provided for compensation, up to the actual value of the lost or damaged property.

IN SUMMARY
Under Article. 1693 cc, the carrier is liable on a presumptive loss and failure of the delivered to him things for the transport, from the moment you receive them that on which the delivery to the recipient, unless he can prove that the damage is derived from unforeseeable , by nature or by the things vices themselves or of their packaging, that is, whether the sender or recipient.
However, in case of non-delivery it will be up to the passenger to prove the guilt of the carrier. In any case, the burden of proof, in delivery or fewer cases of luggage, has different characteristics in the various types of transport.
In addition, the amount of compensation in favor of the passenger for loss or damage of luggage varies depending on the type of transport, and it is delivered or not the baggage; limited to air transport, in addition, an additional variable is represented by accession or less of the Member to the Montreal Convention of 1999.
Finally, the goods carried in baggage, generally, not only refundable, unless the passenger decides to adjust the luggage and deliver to the carrier a declaration of value of the same, of course, by paying an additional fee for transportation.

The law firm of Attorney Marco Coscia provides advice and assistance to all travelers claiming rights to compensation for the loss or damage of their baggage.