Experiencing an inconvenience when travelling by air, whether it's a long delay, lost or damaged baggage, or even more serious damage, is often a frustrating experience. Knowing how to react and defend your rights against an airline can seem complex. Beyond know your fundamental rights As a passenger or shipper, the success of any action depends on scrupulous compliance with precise procedural rules, particularly with regard to time limits and choice of court. Ignoring these aspects can destroy your chances of obtaining compensation, even if your loss is proven. This article details the steps and precautions you need to take to take effective action against an air carrier.
The importance of time limits for complaints and protests
Before even considering legal action, the first and often compulsory step is to formally notify the airline of the problem encountered. This notification, known as a "protest", must be made within a very short time of the incident. These deadlines are set mainly by the Montreal Convention of 28 May 1999, which governs most international air transport. Failure to meet these initial deadlines may render any subsequent action inadmissible. You must therefore be particularly vigilant as soon as the damage occurs.
Time limits for damaged or delayed baggage (Montreal Convention)
The Montreal Convention distinguishes between several situations concerning checked baggage:
- Damage (damaged baggage) If you find that your checked baggage has been damaged on arrival, you must send a written complaint to the carrier. immediately after discovery of the damage and, at the latest, within a period of seven days from the date of receipt of the baggage. After this period, any action will be considered inadmissible, except in the case of proven fraud on the part of the carrier (Article 31, paragraph 2 of the Montreal Convention).
- Delay (baggage delivered late) In the event of a delay in the delivery of your checked baggage, a complaint must be made in writing no later than twenty-one days from the date on which the baggage was placed at your disposal (Article 31, paragraph 3). This time limit is also mandatory.
For unchecked baggage (hand baggage), the Convention does not provide for a specific protest period for damage that occurs while the baggage is in the passenger's care. However, it is still advisable to report any incident as soon as possible.
Time limits for damage to goods
Air transport is not just about passengers and their baggage. For goods transported by air, similar rules apply in the event of a problem. Liability for damage to goods is governed by specific protest deadlines:
- Damage to goods In the event of damage to the goods, the consignee must lodge a written protest with the carrier immediately after discovery of the damage, and at the latest within a period of fourteen days from the date of receipt of the goods (Article 31, paragraph 2).
- Delay of goods If the goods are delivered late, the complaint must be made in writing within a period of twenty-one days from the date on which the goods were made available to the consignee (Article 31, paragraph 3).
Here again, compliance with these time limits is a condition of admissibility of the liability action against the carrier.
Form and content of the protest: the need for a written document
The Montreal Convention is clear: the protest must be made in writing (Article 31, paragraph 4). A simple oral report to an airline agent at the airport is generally not enough to preserve your rights. It is essential to leave a written record.
There are several ways to do this:
- Complete a specific form at the airline counter (Property Irregularity Report - PIR for baggage, for example), making sure to keep a dated and signed copy.
- Send a registered letter with acknowledgement of receipt to the airline's customer service or head office.
- Send an e-mail with acknowledgement of receipt or use an online complaints form, keeping proof of dispatch and receipt.
The content of the complaint must be sufficiently precise to identify the flight concerned (flight number, date, route), the passenger or sender, the nature of the problem (damage, delay, partial loss), and describe the damage suffered. Enclosing proof (photos of the damaged baggage, baggage tag, flight ticket or air waybill) is strongly recommended.
Consequences of failure to comply with time limits: inadmissibility of the action
Failure to comply with the protest time limits laid down in Article 31 of the Montreal Convention has a radical consequence: liability claims against the air carrier become inadmissible. This means that even if you have suffered a real loss and the airline could be held liable, the court will not be able to examine your claim on the merits if you have not protested in time and in the required form. This is a "fin de non-recevoir" which extinguishes the right to sue for the damage in question (damage or delay).
The only exception provided for by the Convention is in the case of fraud on the part of the carrier (Article 31, paragraph 4), which remains difficult to prove in practice. It is therefore absolutely essential to act very quickly once the problem has been identified.
The limitation period for liability claims
Once the protest has been lodged within the deadline (if required), another, longer but equally imperative deadline comes into play: the limitation period for legal action. This is the maximum period during which you can take legal action to assert your rights.
The single two-year period provided for in international conventions
Whether under the old Warsaw Convention or the Montreal Convention, which now applies to the majority of international flights, the time limit for bringing a liability action against the air carrier is two years (Article 35, paragraph 1 of the Montreal Convention). This period is referred to as a lapse period, which has important implications for its suspension or interruption.
This two-year period applies to all liability claims based on the Convention, regardless of the type of damage claimed: delay, destruction, loss or damage to baggage or goods, and even bodily injury to a passenger.
Starting point of the period: arrival at destination, stop of transport, etc.
The calculation of this two-year period starts from a specific date, determined by the Montreal Convention (Article 35, paragraph 1):
- Or from arrival at destination ;
- Or from the day on which the aircraft should have arrived ;
- Or from the time the transport stops.
The choice of starting point will depend on the specific circumstances of the dispute. For example, in the case of a flight delay, the starting point will generally be the actual date of arrival or the date on which the aircraft should have arrived. For a total loss of baggage, it will often be the scheduled arrival date of the flight concerned.
Suspension and interruption of the limitation period: applicable rules
The Montreal Convention specifies that the method of calculating the limitation period, including the grounds for suspension or interruption, is determined by the law of the court seised (Article 35, paragraph 2). This is a significant difference from the protest periods (Article 31), which are uniform.
In French law, the Civil Code provides for suspension (which temporarily halts the running of the period without wiping out the time that has already elapsed) and interruption (which wipes out the period that has elapsed and starts a new period of the same duration). For example, a summons to appear before a court, even one that lacks jurisdiction, or a writ of execution interrupts the limitation period. Mediation or conciliation may suspend the limitation period.
However, the fact that the two-year period provided for in the Montreal Convention is a "lapse period" has led case law, in particular the French Cour de cassation, to consider that it cannot be suspended or interrupted in accordance with the classic rules of ordinary law, apart from very limited exceptions permitted by the law of the forum (the law of the court seised). It is therefore extremely risky to rely on any suspension or interruption. Prudence dictates that the two-year period should be regarded as a time limit.
Disqualification: an irremediable sanction
The fact that the two-year period is a limitation period means that the expiry of this period results in the definitive extinction of the right to take legal action. Unlike certain limitation periods, which can be adjusted or the running of which can be halted, the time limit for forfeiture is much stricter. If the action is not brought before a competent court before the expiry of the two-year period, the passenger or shipper definitively forfeits their right to compensation in respect of the rules of the Montreal Convention. The court will have to note this lapse of its own motion.
Determining which court has jurisdiction over your dispute
It is not enough to bring an action within the time limit. The right court must also be involved. Determining which court has jurisdiction in international air transport matters is also governed by specific rules, mainly stemming from the Montreal Convention, but also supplemented by European law for disputes involving consumers residing in the European Union.
The options offered by the Montreal Convention (art. 33)
Article 33 of the Montreal Convention offers the claimant (the passenger, the shipper or their assigns) a choice between several potentially competent courts. This rule is intended to offer a degree of flexibility while ensuring predictability for carriers. The liability action must be brought, of the applicant's choiceIn the territory of one of the States parties to the Convention, before one of the following courts:
Court of the carrier's domicile
This is the place where the airline has its registered office, central administration. This criterion is generally easy to determine by consulting the company's legal information.
Court of the principal place of business
This criterion refers to the airline's effective centre of commercial operations.. It may coincide with the domicile, but this is not always the case, particularly for large companies with global operations.
Court for the place of business where the contract was concluded
This is the court in the place where the travel agency, airline office or website through which the contract of carriage (the air ticket or air waybill) was concluded is located.. This criterion can be advantageous if you have bought your ticket locally.
Court of destination
This is the final destination specified in the contract of carriage.. In the case of an outward and return flight, the final destination is generally considered to be the point of arrival of the return flight, unless the dispute relates specifically to the outward flight. For single flights, it is the point of arrival of the journey.
The claimant must choose one of these four options. They cannot take their case to a court in another country, even if this would be more convenient, except in the specific case of personal injury.
The special case of jurisdiction for personal injury (passenger's residence)
The Montreal Convention introduced a fifth jurisdiction option, specifically for liability claims arising from the death of or personal injury to a passenger (Article 33, paragraph 2).. In this specific case, the action may also be brought before the court in the place where the the passenger's main and permanent residence at the time of the accident.
However, two cumulative conditions must be met for this option to be available:
- The passenger must have his or her principal and permanent residence in that State Party at the time of the accident.
- The carrier must operate air transport services (directly or via a commercial agreement with another carrier) to or from that State party, AND carry out its air transport activities there from premises (leased or owned by itself or by a carrier with which it has a commercial agreement).
This provision offers additional protection to passengers who suffer personal injury, often enabling them to take action in the courts of their own country of residence, which makes the process much easier.
The specific jurisdictional rules of European law
For disputes falling within the scope of the Montreal Convention but also involving European elements (for example, a consumer passenger resident in the EU, a carrier based in the EU, a flight to or from the EU), the rules of jurisdiction may be supplemented by European Union law, in particular Regulation (EU) No. 1215/2012, known as "Brussels I bis".
The Brussels I bis Regulation and consumer actions
The Brussels I bis Regulation contains rules that protect consumers. In contractual matters, it generally allows a consumer (a person acting for purposes outside his or her trade, business or profession) to sue his or her professional co-contractor (in this case, the airline):
- Or before the courts of the Member State in which the professional is domiciled;
- Or before the courts of the place where the consumer is domiciled.
This option, which allows action to be taken in the courts of the passenger's own domicile, is often more advantageous for the passenger. It is in addition to the options provided by the Montreal Convention when the conditions for application of the Regulation are met (in particular, that the airline directs its activities to the Member State of the consumer's domicile).
Relationship between international conventions and European law
The Court of Justice of the European Union (CJEU) has ruled on the relationship between the jurisdiction rules of the Montreal Convention and those of the Brussels I bis Regulation. Essentially, the CJEU considers that the rules of the Montreal Convention are not exclusive. A consumer passenger may therefore choose to invoke either the jurisdiction options in article 33 of the Montreal Convention, or the more favourable rule in the Brussels I bis Regulation allowing him to bring proceedings in the courts of his own domicile, if the conditions are met.
This strategic choice will depend on the situation: the location of the various Convention options, the ease of access to justice in the country of residence, local case law, etc.
The assistance of a lawyer: invaluable help in navigating these complexities
As we have just seen, taking action against an airline involves mastering complex and strict procedural rules, derived from both international conventions and European law. Time limits are short, and the penalties in the event of an error may be definitive (inadmissibility, forfeiture). The choice of competent court is also a strategic decision that can influence the outcome of the dispute.
Calling on the help of a lawyer to take action has a number of advantages:
Ensuring compliance with deadlines and procedures
A lawyer will ensure that the initial protests are formulated correctly and within the time allowed (7, 14 or 21 days depending on the case). Above all, he will ensure that legal action is taken before the two-year forfeiture period expires, thereby avoiding the irremediable loss of your rights.
Choosing the most appropriate jurisdiction
Faced with the various options for jurisdiction offered by the Montreal Convention and, where applicable, by the Brussels I bis Regulation, the lawyer will analyse your situation to determine which court would be the most advantageous for your case (proximity, known case law, efficiency of local justice, etc.). This choice can have a significant impact on the conduct and outcome of the proceedings.
Build a solid case to defend your rights
In addition to the procedural aspects, your lawyer will help you gather the necessary evidence (tickets, baggage tags, photos, invoices, witness statements, any expert reports), put a precise figure on your loss (material, moral, physical) and develop the most appropriate legal arguments to establish the airline's liability and obtain the compensation to which you are entitled.
Navigating the legal maze of air transport can be daunting. Respecting the time limits for lodging protests and the two-year limitation period is essential, as is choosing the right court. A mistake on these procedural points can close the door on any compensation.
If you are facing a dispute with an airline following a transport incident, do not hesitate to contact our firm to discuss your options and consider the best strategy for defending your interests.
Sources
- Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 (Montreal Convention)
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I bis Regulation)
- Transport Code, in particular articles L6421-1 et seq., R6421-7, R6422-2.
- Civil Code (concerning the rules for suspending and interrupting limitation periods, subject to their applicability to the Montreal Convention limitation period).
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