Infamy, infamy - they've all got it infamy - lost baggage in the EU zone and a lost judge - Non material damage and The Montreal Convention

1. On 10 July 2015 a judge of the High Court of Justice, Chancery Division suffered one of the most traumatic experiences imaginable, the stuff of the most angst-ridden nightmares.
   
   
2. Arriving at Gatwick Airport after a trip to Florence with his wife, he waited for 45 minutes at the baggage reclaim carousel. We can all empathise with his Lordship. The increasing tension as the ‘rude insatiate hands of the clock go tick-tock’, the need to remain calm and emanate indifference as the mouth becomes dryer and the hands somewhat clammy. Finally the rush of relief as one’s luggage appears, with a faint sense of schadenfreude for those unfortunate souls still not reunited with their worldly goods.
   
   
3. On 10 July 2015 his Lordship was denied that relief, instead being informed that not only his but the entire flight’s luggage had been left behind.
   
   
4. Judicial apoplexy was thereby engaged. Indeed his Lordship’s mind no doubt turned to the Misrepresentation Act 1967 and more. Perhaps a conspiracy to deceive was afoot!
   
   
5. On departing from Florence the pilot made a disclosure that the load on the flight had to be adjusted due to crosswinds. He failed to disclose that the entire load of passenger luggage was being left behind. To his Lordship it was inconceivable that the pilot was unaware of this fact.
   
   
6. His Lordship’s point, not unreasonably, was that this caused unnecessary distress to a lot of people, distress which could have been avoided had the actual position been communicated at the appropriate time.
   
   
7. Judicial apoplexy then gave way to a mission to unearth the truth. Unfortunately even one of Her Majesty’s judges was unable to prevail in the court of customer relations. British Airways distanced themselves from the event on the basis that they were merely the carrier for a flight operated by Vueling. The buck was duly passed on to Vueling whose computer system by itself was enough to defeat the judicial quest for truth.
   
   
8. Then a happy ending, His Lordship’s luggage arrived a few days later, in his words, ‘spontaneously and without warning’. End of story. Actually not. His Lordship was not one to allow British Airways off the hook so easily.
   
   
9. He was at the time assigned to a complex piece of litigation in the Chancery Division involving numerous claimants with one of the defendants being none other than the prime suspect, British Airways.
   
   
10. As his Lordship comments in the report, that litigation did not engage issues over luggage, rather complex issues of competition law. However the prospect of the prime suspect being before his Court was an opportunity his Lordship could not resist.
    
    
11. In the quest to unearth the truth from those representing British Airways, his Lordship’s concerns are somewhat Delphic. At one point he expresses his concern as being how the plane could have departed without the passengers’ luggage unless that was a deliberate decision.
    
    
12. It would, indeed, be surprising had the flight departed leaving the entire consignment of luggage behind accidentally. Whether the decision was deliberate, commented His Lordship, was "an easy enough question to pose and it ought to have been easy enough to answer".
    
    
13. The plot thickened when BA and its legal representatives declined to assuage his Lordship’s concerns in this regard. They took the position that his Lordship’s private dispute was not connected with the dispute before the Court.
    
    
14. E-mails were sent from his Lordship on his letter-headed paper to the Chief Executive of BA with his Lordship expressing the view that there was a logical explanation for he and his fellow passengers' luggage having been ‘deliberately bumped off’ the flight.
    
    
15. Perhaps in the midst of his grievance at the treatment he and his fellow passengers had suffered, his Lordship overlooked the one logical explanation that they  appeared to have been given, namely that the load on the flight had to be adjusted due to crosswinds. This might be aviation speak for ‘due to weather conditions your luggage has been off loaded'.
    
    
16. For his Lordship the waters were somewhat murkier. The reason, he concluded, why BA had not responded to his remonstrations for the truth was because there was "some kind of operation designed to maximise profits at the expense of their regular customers".  By implication the crosswinds were a feeble attempt at obfuscation. Further, he said, BA wished to exploit the situation to pressure him from coming off the case.
    
    
17. His Lordship in question is Mr. Justice Peter Smith, not a stranger to controversy as a cursory internet search will reveal. Nor is his Lordship a stranger to recusal requests. On this occasion he acceded to BA's Application (Emerald Supplies v British Airways [2015] EWHC 2201 (Ch) though not before making clear that he would pursue the matter privately "with the vigour for which I am known".
    
    
18. Whether his Lordship did indeed pursue the matter is not known. However, he is the beneficiary of international legal protection in respect of the matters that arose. The liabiliity of carriers in respect of delays in the carriage of luggage is set out in The Montreal Convention to which, inter alia, all EU member states are signatories. The convention applies to international carriage by air which would clearly apply to his Lordship’s transit from Florence to Gatwick.
    
    
19. Article 19 renders the carrier liable for damage occasioned by delay in the carriage of passengers, baggage or cargo. There is no definition of damage, however in the context of this case his Lordship may have been entitled to a sum of money to purchase essential clothing whilst awaiting the arrival of his delayed baggage or other costs of replacing items of which he was deprived.
    
    
20. The greater consequence of the delay in this case was the distress and inconvenience caused to his Lordship and his fellow passengers. In his Lordship’s case he might argue that his consequential loss was greater, resulting in a loss of prestige and esteem within his profession. Though the extent of his contributory negligence in that regard would be relevant.
    
    
21. An interesting point (though not one for the purposes of this piece) is whether his Lordship’s contribution to his losses flowing from any breach of duty owed by BA under the contract of carriage would fall to be affected by evidence of his own contribution to that loss.
    
    
22. No elucidation of the term ‘damage’ at Article 19 is given and there is no decided case as to whether, in the context of delayed baggage, the term encompasses non-material damage, such as distress and inconvenience caused by delay. However, in Walz v Click Air [2011] Bus. L.R. 855, concerned with the phrase damage at Article 22, the Court of Justice held that the phrase includes both material and non material damage. Logically the position should be the same under Article 19.
    
    
23. Even if his Lordship fails to establish the truth behind ‘luggagegate’ he may yet have the satisfaction of some redress should he press his case under the Montreal Convention.
    
    
24. His Lordship’s potential satisfaction is dimmed in 2 respects. Firstly, by the limitation provisions at Article 22 limiting the carrier’s liability in the event of delay to 1,131 special drawing rights. Unless the passenger has made a special declaration of interest in delivery at the time the baggage is checked in.
    
    
25. Of greater concern for his Lordship would be the proviso to Article 19. This excludes liability on the part of the carrier for damage caused by delay, if it proves that its servants or agents took all measures that could reasonably be required to avoid the damage or that it was impossible for them to take such measures. Those Florentine crosswinds may yet return to deny his Lordship justice.
    
    
26. The upside for his Lordship is that if BA did wish to defend a claim brought under the Montreal Convention they would have to plead and prove the facts which caused the delay to the arrival of the luggage at Gatwick. His Lordship might have saved himself the ignominy of his recusal and the criticism his actions attracted, had he simply issued a small claim in the County Court.
    
    
27. BA could argue that the baggage was delayed by crosswinds at the departure airport which it was impossible for them to prevent and which excludes them from liability for the delay. However, it might be argued that they could have prevented some of the non material damage (for example distress and inconvenience) by disclosing to the passengers before arrival at Gatwick that their baggage would be unavoidably delayed.
    
    
28. Where an airline is aware that a passengers luggage is not being transported on the same flight the obligation is clearly to advise of this before departure or at least before the aircraft arrives at the destination.  This is the only means by which an affected passenger may avoid the inconvenience of an unnecessary wait for the luggage upon arrival and the particular distress associated with the non-arrival of luggage.
    
    
29. One can understand the commercial exigencies of not doing so however any passenger affected by the willful failure to inform him of delay to baggage and which causes the type of inconvenience and distress suffered by Mr. Justice Peter Smith and his fellow passengers should be entitled to compensation for non-material damage as part of a claim under The Montreal Convention.
    
    
30. Within the parlance of the Montreal Convention British Airways were the actual carrier for the flight and pursuant to Article 40 would be liable since it performed the entirety of the carriage between Italy and the United Kingdom. It appears that an alternative action could be brought against Vueling were it it deemed to be the contracting carrier.

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