::lost luggage

thesmyler

If your carrier losses you luggage, you must report it straight away! Start by filling in your claim. Once you entered in the details you should receive an amount the carrier is willing to give. If you aren't happy please fill in the form at montrealconvention (dot) org and see what they say about your claim. They are there to help advise you so please don't be rude!

Caz3121

Baggage is not classed as "lost" after it has been missing for over 21 days. Sp although you fill out a PIR immediately it is classed as "delayed" initially.
No need to fill in a form to see how much is due as the maximum amount of compensation is available in the public domain - currently 1,131 SDR per passenger

thesmyler

My travel was on the 05.06.2015 Easyjet told me i need proof of receipts for the missing luggage! It is still filed under lost luggage not delayed luggage. I am allowed to claim under 1,131 sdr without proof... I didn't know this until I got in touch with montrealconvention.org This means that I am entitled to 515.97 pounds for my claim. They are giving me just 325.00 pounds because I cant prove the clothes in my suitcase. The 1,131 for my claim should be 1,023.44 pounds. Oh to add insult to injury. The form for indemnity has not been filled in correctly they returned an email saying that they need NAME and Signature of a witness, on the form I gave them just a signature. Easyjet returned it in red to redo. Since then their message has been deleted and someone came back to me saying I completed it in full detail. How can an incomplete form be seen legal?

thesmyler

In other words Easyjet aren't giving the maximum "compensation" hence short changing me from my entitled claim to just over half the amount and are telling us passengers that we have to supply receipts.. even some of my clothes are 4 years old!

Pollycat

thesmyler wrote: »

My travel was on the 05.06.2015 Easyjet told me i need proof of receipts for the missing luggage! It is still filed under lost luggage not delayed luggage. I am allowed to claim under 1,131 sdr without proof... I didn't know this until I got in touch with montrealconvention.org This means that I am entitled to 515.97 pounds for my claim. They are giving me just 325.00 pounds because I cant prove the clothes in my suitcase. The 1,131 for my claim should be 1,023.44 pounds. Oh to add insult to injury. The form for indemnity has not been filled in correctly they returned an email saying that they need NAME and Signature of a witness, on the form I gave them just a signature. Easyjet returned it in red to redo. Since then their message has been deleted and someone came back to me saying I completed it in full detail. How can an incomplete form be seen legal?

thesmyler.
I'm finding your posts pretty confusing.
You say you're entitled to £515.97, then say your claim should be £1023.44.

Do you not have a '£' sign on your keyboard?

thesmyler

This is EasyJets message
Dear Denise,

A member of the airlineluggageclaims.Com admin team has posted a new message entitled 'Message' to claim reference: U2WEB/692780

Thank you for your message from which I am sorry to see
your disappointment following our settlement offer.

As already explained, in accordance with our General
Conditions of Carriage, the carrier’s liability is limited to
proven losses only. Therefore, any passenger that wishes to
make a claim against the airline must be able to produce
satisfactory documentation in order for the claim to be
considered. Furthermore it is the onus of the passenger to
provide such documentation.

I would alsio like to take this opportunity to explain that the
Montreal Convention limits passengers from making a claim
against their insurance company and the airline for the lost
items and the essential items. This is because the essential
items are classed as a replacement for the missing items.

However, on this occasion we will add the GBP75.00 to the
settlement offer. Hence, our revised offer is in the sum of
GBP325.00.

If you are not able to provide the receipts or bank statement
we require we need you to return the settlement offer form
fully completed to be able to bring this matter to a close.

I can confirm that on the rare occasion we receive critical
feedback, we will use this in our next operational review so
that we are better able to improve our service.

Yours sincerely

xxxxx xxxxx
easyJet baggage claims department

This is montrealconvention.org response

1. Delayed Baggage

For the first 21 days that you baggage was missing it was considered delayed. During the time that your baggage is delayed, you can make purchases of items because you baggage is delayed and you do not have access to your possessions. You can claim back the cost of such purchases and expenses associated with that (such as travel, telephone calls etc). Most air carriers do offer a minimal monetary sum on arrival, or say that they will reimburse for purchases up to a certain amount but in actual fact you are not limited to such an amount. The amount you are limited to is the total of 1,131 SDR (currently £1,023.44) per passenger, or the amount declared.

The air carriers liability for delay is stipulated under Article 22.2 of the Convention:

Article 22 - Limits of Liability in Relation to Delay, Baggage and Cargo

“2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,131 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.....”

The above limit will apply unless the loss in relation to the baggage was “an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result" as mentioned in Article 22.5 (below), in which case the air carrier and it’s servants and/or agents can not limit their liability.

“5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.”

You are also entitled to claim the cost of any correspondence you have to make in the course of your claim with the air carrier, so you can claim the cost of telephone calls, postage etc.

2. Lost Baggage

Based on your date of arrival (18/06/2015), if you baggage did not arrive as of 9th July 2015 (the expiry of 21 days after the date the baggage ought to have arrived), your baggage was deemed to be no longer delayed but lost and from that point you had the right to make a claim for the lost baggage. It is not dependant upon the air carrier admitting it to be lost or not, the Convention deems it to be lost and the Convention prevails over the air carriers conditions of carriage. See Article 17 of the Convention:

Article 17 - Damage to Baggage


3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Unless the air carriers contract of carriage states a higher limit than that laid down in the Montreal Convention (which is highly doubtful), the air carriers limit of liability to you is 1,131 SDR per passenger (currently £1,023.44) (or the amount declared), again, as stipulated under Article 22.2:

Article 22 - Limits of Liability in Relation to Delay, Baggage and Cargo

“2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,131 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.....”

The above limit will apply unless the loss in relation to the baggage was “an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result" as mentioned in Article 22.5 (below), in which case the carrier can not limit their liability.

“5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.”

Please note that the limit of liability is per passenger, not whose name is on the baggage identification tag, and so even if you and a travelling companion both had items in the same piece of baggage, you can both claim the limit of liability individually.

In making your claim, please note that the values of the items concerned are not what they originally cost you to purchase but what they will cost to replace at today’s rates, this is because the air carrier must put you back in the same position you were in before the loss and if the items have increased in cost, it will therefore cost you more now to purchase them again and you should not be put to that financial loss.

You are also entitled to claim the cost of any correspondence you have to make in the course of your claim with the air carrier, so you can claim the cost of telephone calls, postage etc.


3. Damage Occasioned by Delay/Consequential Damage

If the delay of your baggage has caused damage to a holiday, or business trip etc, then there may be additional issues to your claim and Article 19 may also apply.

Article 19 - Delay

“The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

Note that the passenger does not have to prove that the air carrier is liable, it is the air carrier who must prove that they are not liable, so the onus and burden of proof is upon the air carrier, not the passenger. If the air carrier can not prove this then they are liable to the passenger.

One such example of damages awarded for damage occasioned by delay is the case of Kupferman v. Pakistan International Airlines, New York court awarded damages for a vacation ruined by delayed baggage.
Please note that there is no provision in the Montreal Convention for passengers to claim for emotional damages such as stress, inconvenience, frustration or loss of enjoyment without any physical symptoms such as pain and suffering. For example, if you had to wear someone else’s clothing and it made you feel awkward, you would not be able to claim for that but if the clothes were not of a good fit, the fabric gave you an allergic reaction etc, then you can make a claim for that because it is physical rather than emotional. Another example is if you could not buy appropriate clothing and therefore could not attend events or outings you had planned for your holiday and the holiday was damaged because you could not do the things you had booked the holiday for, then you could make a claim for that, for the full or partial cost of your holiday weighing up how much of your holiday was damaged.

4. Damage to Baggage

If your baggage does arrive and items are damaged, then you must inform the air carrier in writing immediately and at the latest within seven days of receiving your baggage otherwise you will have no claim. The limits of liability are those set out in Article 22 (above).


5. Receipts

Article 22.2 imposes liability on air carriers for the safe carriage of baggage and the end part of the Article 22.2 imposes an obligation upon the air carrier to either accept your valuation and settle the claim with you in that amount, or if not satisfied by your valuation then they may proceed to prove otherwise.

Under the Convention, you are not obliged to provide receipts or any other proof to substantiate the value of your baggage, and especially if the value of the baggage is under 1,131 SDR. If the air carrier is in doubt as to your valuation of your baggage, then it is their obligation and their responsibility, to spend their own time and resources in sourcing the replacement item on a like for like basis, seek quotations for the replacement cost of the item, replace the item (if you have agreed that the item is an acceptable replacement) and deliver the item to you at their own expense, as long as that amount falls within the limit stated in Article 22.2. Bear in mind that, under the Montreal Convention, you are not obliged to accept a replacement item, neither are you obliged to replace the item. There are other issues involved if the air carrier purchases, repairs or replaces the item for you, such as guarantees, problems arising from the quality etc. In a nutshell, the air carriers obligation to you is to compensate you in the amount of damage that they caused. That amount is limited to 1,131 SDR, or the declared value (unless you can show that 22.5 above applies, in which case the limit of liability of the air carrier is removed). If you decide to arrange a replacement yourself, let the air carrier know the details and obtain their approval before you make the purchase. If you incur any additional costs in this process, such as delivery charges, telephone calls, travel to purchase the item, indeed corresponding with the air carrier in relation to your claim, etc, then you are entitled to recover those costs from the air carrier as it is part of your claim and you would not have incurred those costs if the air carrier had not lost your baggage in the first place. The air carrier’s liability is to put you in the same position as you were before the loss.

6. Invalidity of Contractual Provisions

Many air carriers have terms within their conditions of carriage which relieve them of responsibility for compensating for items such as jewellery, electronics, designer items, protruding parts of suitcases (such as wheels etc), or place lower limits of liability upon certain items (such as only compensating 50% of the value if an item is over 5 years old or for purchases during the delay of baggage). Such terms are in violation of Articles 17, 22 and 26 of the Convention. If the air carrier relies upon such terms in their conditions of carriage, you should inform the air carrier that you are aware that such terms are in violation of Articles 17, 22 and 26 of the Montreal Convention. You can also file a complaint to the relevant consumer protection agency of the country in which you flew from, the country you flew to and the country where the air carrier is based. If you need details of these agencies, please let me know.

Article 26 - Invalidity of contractual provisions

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

7. Time Limitation

If the air carrier does not settle the matter to your full satisfaction, and you feel that you do wish to proceed to file a claim in court, you will have two years from the date of the incident in which to do so.

Article 35

Limitation of actions

1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft
ought to have arrived, or from the date on which the carriage stopped.

2. The method of calculating that period shall be determined by the law of the court seized of the case.

This process is usually simple and straight forward and can usually be filed in a small claims court where each party usually bears it’s own costs and so even if you lost your case, it would be highly unlikely that you would have to pay the air carriers court costs. However, if you win you case, the court may award you your costs under Article 22.6 below:

Article 22

6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

Please also note that if the air carrier does not settle your claim, and you have to initiate legal proceedings, you can do so not only against the air carrier but also their servants and/or agents, this includes baggage handling agents and the airport operators as they are deemed to be a servant or agent of the air carrier.

Hopefully legal proceedings will not be necessary, but it they are we will support you through the process and provide you with case law relevant to your claim for your use in court.

PLEASE ADVISE

Pollycat

Again:

Pollycat wrote: »

thesmyler.
I'm finding your posts pretty confusing.
You say you're entitled to £515.97, then say your claim should be £1023.44.

Do you not have a '£' sign on your keyboard?

I'm not wading through that load of copied text.

Would you care to summarise?

thesmyler

I can only prove that 515.97 pounds worth of clothes have been lost which is under 1,131 or 1,023.44 pounds.

1,023.44 pounds is the maximum compensation any one passenger can claim

thesmyler

No, I do not have a pound sign - sorry

thesmyler

Basically Easyjet are telling me that even though they lost my luggage, I have to provide receipts for my lost clothes. They also bullied me into signing the indeminty form which I wasnt made aware of my rights until last minute. The form I signed was not filled in fully with Name and signature of a witness (only a signature) and it was returned to me asking me to fill it all in. Now I opened up an email saying that my form has been complete even though I presume it would be invalid? I want to retract the form because I found out that I am entitled to my full loss which his 515.97 pounds. I am out of pocket. I contacted montrealconvention.org and they said that what I have been given from EasyJet are lies. I shouldnt be put out of pocket. I dont have to provide any receipts less than 1,023.44 pounds.

thesmyler

If I am entitled to the fulll 1,023.44 pounds why are they not giving it to me?