Transporting goods by air accounts for a significant proportion of international trade. This solution, prized for its speed, nevertheless involves risks inherent in transport. Losses, damage or delays can occur, resulting in economic damage that can be considerable for both shippers and recipients. Understanding the liability regime applicable to air carriers is therefore essential for all economic operators. This article details the rules governing this liability and the steps to take in the event of a dispute.
The legal framework of liability for goods: Montreal Convention
The international carriage of goods by air is governed primarily by the Montreal Convention of 28 May 1999. This text has gradually replaced the old Warsaw system and unified the rules applicable to disputes concerning air freight.
Application to the international carriage of goods by air
The Montreal Convention applies to all international carriage of goods by aircraft for remuneration. It applies to carriage between two signatory States or to carriage to and from the same State with a scheduled stopover in another State. To date, more than 130 countries have ratified this convention, ensuring that its provisions are widely applied.
In France, these international rules have been extended to domestic transport by Article L.6422-2 of the Transport Code, which expressly refers to the provisions of the Montreal Convention. This harmonisation considerably simplifies the applicable legal regime, whether for domestic or international flights.
In-depth knowledge of this general framework of the Montreal Convention is essential if the rights and obligations of the parties are to be properly understood.
The air waybill (AWB): function and compulsory information
The air waybill is the material proof of the contract of carriage. Although it is not a condition for the validity of the contract, it plays a decisive role in the event of a dispute.
Article 5 of the Montreal Convention stipulates that this document must include certain minimum details:
- Indication of departure and destination points
- Indication of a planned stopover in another State if the points of departure and destination are located in the territory of the same State
- The weight of the shipment
The modernisation of practices has led to the acceptance of electronic waybills, considerably reducing the risk of material errors. However, the absence or irregularity of the AWB does not affect the existence or validity of the contract of carriage, which remains subject to the rules of the Convention.
Event giving rise to liability: loss, damage or delay
The air carrier is liable in three main situations: loss, damage or delay of goods.
The notion of loss or damage during air transport
Under Article 18 of the Montreal Convention, the carrier is liable for damage resulting from the destruction, loss or damage of the goods by the sole fact that the event which caused the damage occurred during the carriage by air.
The period of "air transport" is not limited to the flight itself. It includes all the time during which the goods are in the carrier's custody, whether at an airport, on board an aircraft or in any other place if the goods land outside an airport.
Case law has specified that this period begins when the carrier actually takes charge of the goods and ends when they are delivered to the consignee. In a ruling dated 8 February 2023 (no. 21-17.932), the Court of Cassation held that "delivery marks the end of the carrier's period of custody".
It is important to distinguish between the different concepts:
- Total loss refers to the complete disappearance of the item.
- Partial loss means that part of the consignment is missing.
- Damage is any damage affecting the physical integrity of the goods.
Specific liability for late delivery
Delay is the third cause of carrier liability. Article 19 of the Montreal Convention states that "the carrier is liable for damage resulting from delay in the carriage of goods by air".
Unlike the regime applicable to loss and damage, liability for delay is based on a presumption of fault. The carrier can exonerate himself by proving that he, his servants and agents took all measures reasonably required to avoid the damage, or that it was impossible for them to take such measures.
As the concept of delay is not defined by the Convention, the courts generally assess it in terms of the period agreed between the parties or, failing that, a reasonable period taking into account the particular circumstances of each transport operation.
Limits of liability for goods
The Montreal Convention introduced a system of limitation of liability which caps the compensation payable by the air carrier.
The legal compensation ceiling per kilogram (currently 22 SDR/kg)
The liability of the international air carrier is limited to 22 SDR (Special Drawing Rights) per kilogram of cargo. This amount has been revised upwards since the initial ceiling of 17 SDR/kg provided for in the Montreal Convention. The value of the SDR is determined daily by the International Monetary Fund, which means that the maximum amount of compensation can be updated regularly.
This limitation applies automatically, without the carrier having to insert a specific clause in the contract. It applies both to damage resulting from loss or damage and to damage resulting from delay.
How to exceed the ceiling: the special declaration of interest in delivery
The sender may avoid this limitation by making a special declaration of interest in delivery when handing over the parcel to the carrier, subject to payment of a surcharge.
This declaration must appear expressly on the air waybill in the section provided for this purpose ("Declared value for carriage"). The Fort-de-France Court of Appeal, in a ruling dated 22 November 2016, specified that any other form of compensation is excluded when such a declaration has been made.
The declared amount then constitutes the maximum limit of the carrier's liability, provided that the sender can prove the actual value of the goods.
De-capping of liability (fraud or equivalent fault)
The maximum liability may be waived where the loss or damage results from an act or omission of the carrier, his servants or agents, done either with intent to cause loss or damage, or recklessly and with knowledge that loss or damage would probably result.
It should be noted, however, that unlike the carriage of passengers, this de-capping provision has not applied to the carriage of goods since the entry into force of the Montreal Convention. As confirmed by the Court of Cassation in a judgment of 30 June 2015 (no. 13-28.846), "the wilful misconduct or inexcusable fault of the air carrier of goods does not allow it to be held liable for full compensation of the loss".
The aim of this feature is to guarantee airlines predictability in terms of the risks incurred when transporting freight.
Grounds for exoneration of the carrier's liability
The Montreal Convention provides for a number of cases in which the carrier may be wholly or partially exonerated from liability.
Defects in the goods
The carrier is not liable if the damage results from the very nature of the goods carried. This exemption applies in particular to perishable goods that deteriorate naturally over time or fragile products whose intrinsic fragility is the cause of the damage.
In this case, the carrier must establish that the necessary precautions have been taken and that the damage observed is exclusively attributable to the inherent characteristics of the goods.
Defective packaging by the sender
Article 18 of the Convention exonerates the carrier when the damage results from defective packing carried out by the consignor or a person acting on his behalf.
This ground for exemption applies only if the packaging has non-apparent defects that the carrier could not reasonably have detected at the time of acceptance. In the event of an obvious defect, the carrier should enter reservations on the air waybill or refuse the goods.
Act of war or armed conflict
Damage resulting from acts of war or armed conflict exonerates the carrier from liability. Case law has recognised this as a reason for exoneration in the case of the invasion of Kuwait by Iraq, qualified as a case of force majeure (Versailles Court of Appeal, 6 April 1995).
Fault of the sender or recipient
The carrier may be wholly or partly exonerated if the damage results from a negligent act or omission on the part of the person claiming compensation or the person from whom he derives his rights.
This provision, set out in Article 20 of the Montreal Convention, applies in particular where the sender has provided incorrect information about the nature of the goods or where the consignee has refused to accept delivery without a legitimate reason.
Complaints procedure and deadlines
The air carrier's liability is subject to strict formalities and time limits, failure to comply with which will result in the inadmissibility of the action.
Strict deadlines for lodging a protest (damage, delay)
In the event of damage, the consignee must send a written protest to the carrier immediately after discovery of the damage, and at the latest within 14 days of receipt of the goods.
In the event of delay, the complaint must be made at the latest within 21 days of the date on which the goods were made available to the recipient.
These protests must be made in writing (registered letter, fax, e-mail) and must be sufficiently precise to identify the consignment concerned and describe the damage found.
Failure to lodge a complaint within these time limits creates a simple presumption of acceptance of the goods in good condition. This is a disclaimer which precludes any subsequent action against the carrier, except in the event of fraud on the part of the carrier.
For be assisted by a transport lawyer In formulating and sending these protests, it is advisable to consult quickly after noticing the damage.
The limitation period for liability claims (2 years)
Any liability action against the air carrier must be brought, on pain of forfeiture, within two years of arrival at destination, or of the day on which the aircraft should have arrived, or of the cessation of carriage.
The Cour de cassation has specified that this period constitutes a prescription and not a prefixed period. It may therefore be interrupted or suspended in accordance with the rules of French ordinary law.
For how to take legal action If you have a claim against an airline, you must respect these time limits and bring your claim before the competent court in accordance with the rules set out in Article 33 of the Montreal Convention.
It should be noted that the regime applicable to goods differs significantly from that foroverview of passenger rightsThis is particularly true when it comes to removing the ceiling on liability.
If you are faced with a dispute relating to loss, damage or delay in the carriage of goods by air, our team of lawyers specialising in transport law is at your disposal to analyse your situation and support you in your claims or litigation.
Sources
- Montreal Convention of 28 May 1999 for the Unification of Certain Rules for International Carriage by Air
- French Transport Code, articles L.6421-1 et seq., L.6422-1 et seq.
- Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002
- Court of Cassation, ruling no. 21-17.932 of 8 February 2023
- Court of Cassation, ruling no. 13-28.846 of 30 June 2015
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