Pub­li­ca­tions

Are you sure you don’t want to check that? Lia­bil­i­ty lim­its for car­ry-on bag­gage on domes­tic flights


In Brief

The emer­gence of Low Cost Car­ri­er air­lines, and the unbundling of checked bag­gage by lega­cy car­ri­ers has result­ed in more air­line pas­sen­gers trav­el­ling with car­ry-on bag­gage only, or using their full car­ry-on allowance and min­imis­ing their checked bag­gage. Sim­i­lar­ly, the emer­gence of smart­phone and tablet PC tech­nol­o­gy has meant a like­ly increase in the val­ue of many pas­sen­gers’ bag­gage. How­ev­er, the leg­is­la­tion has not kept pace with these changes and the lia­bil­i­ty lim­its grant­ed to air­lines in rela­tion to domes­tic trav­el are viewed as inadequate.


Inter­na­tion­al Carriage

The Civ­il Avi­a­tion (Car­ri­ers’ Lia­bil­i­ty) Act 1959 (Cth) (CACL) rat­i­fies the Con­ven­tion for the Uni­fi­ca­tion of Cer­tain Rules Relat­ing to Inter­na­tion­al Car­riage by Air opened for sig­na­ture at War­saw on 12 Octo­ber 1929 (the War­saw Con­ven­tion) and the Con­ven­tion for the Uni­fi­ca­tion of Cer­tain Rules Relat­ing to Inter­na­tion­al Car­riage by Air done at Mon­tréal on 28 May 1999 (the Mon­tréal Con­ven­tion) in rela­tion to Inter­na­tion­al air trav­el, as well as estab­lish­ing a lia­bil­i­ty regime for domes­tic travel.

The War­saw Con­ven­tion was estab­lished in order to pro­vide inter­na­tion­al­ly accept­ed lim­its on a carrier’s lia­bil­i­ty for death, injury or dam­age. At the time it was opened, the major­i­ty of air­lines in the fledg­ling indus­try were state-owned and the lia­bil­i­ty lim­its in the War­saw Con­ven­tion pro­vid­ed pro­tec­tion to the vul­ner­a­ble indus­try by allow­ing stake­hold­ers to ful­ly insure against lia­bil­i­ty to pas­sen­gers and reduc­ing the inci­dence of lit­i­ga­tion against airlines.

The Mon­tréal Con­ven­tion was an effort to mod­ernise and con­sol­i­date the War­saw Con­ven­tion, and lists as one of its guid­ing prin­ci­ples the impor­tance of ensur­ing pro­tec­tion of con­sumer inter­ests in inter­na­tion­al air trans­port and the need for equi­table compensation.

While as of 1 August 2012 approx­i­mate­ly 103 coun­tries had rat­i­fied the Mon­tréal Con­ven­tion, a sig­nif­i­cant num­ber of des­ti­na­tions for Aus­tralian trav­ellers (such as Indone­sia, Thai­land and Viet­nam) have not, and so trav­el to these coun­tries is still gov­erned by the War­saw Convention.

The War­saw Con­ven­tion pro­vides for lia­bil­i­ty lim­its based on the weight of checked bag­gage and a max­i­mum of 5000 franc poin­car­es (approx­i­mate­ly A$3000) for car­ry-on bag­gage. The Mon­tréal Con­ven­tion sets a com­bined lim­it of 1000 Spe­cial Draw­ing Rights (around A$2000) for checked and car­ry-on baggage.

How­ev­er, these lia­bil­i­ty caps do not apply if the pas­sen­ger can show that the bag­gage was either inten­tion­al­ly dam­aged by the car­ri­er, or due to the carrier’s recklessness.

Domes­tic Carriage

Part IV of the CACL togeth­er with the Civ­il Avi­a­tion (Car­ri­ers’ Lia­bil­i­ty) Reg­u­la­tions 1991 (Cth) estab­lish lim­its of A$1600 for a domes­tic passenger’s checked bag­gage, but only $160 for car­ry-on bag­gage. Fur­ther, the pas­sen­ger must prove that they were not respon­si­ble for the dam­age to their checked baggage.

These lia­bil­i­ty caps were first imple­ment­ed in 1991, long before the first Low Cost Car­ri­ers start­ed to appear in Aus­tralia, and despite a review into air­line lia­bil­i­ty being con­duct­ed as part of the Avi­a­tion White Paper process in 2009, have not changed for over 20 years.

Fur­ther, there is no cir­cum­stance in which the lia­bil­i­ty caps for domes­tic trav­el do not apply – even in cas­es of inten­tion­al damage.

In its Lia­bil­i­ty Insur­ance Dis­cus­sion Paper1,the Gov­ern­ment recog­nised that the domes­tic sys­tem may not appro­pri­ate­ly bal­ance the inter­ests of car­ri­ers and pas­sen­gers. How­ev­er, this relat­ed to the con­cept that the lia­bil­i­ty caps are unbreak­able (even in the case of inten­tion­al dam­age), rather than due to the high like­li­hood that a passenger’s car­ry-on bag­gage will sig­nif­i­cant­ly exceed the val­ue of $160.

With prices for smart­phones and tablet PCs start at around $500, this one item can have a val­ue more than 3 times the total lia­bil­i­ty cap for a passenger’s entire car­ry-on baggage. 

Pas­sen­gers should remem­ber that this lia­bil­i­ty cap applies not just in the event of a crash, but to any dam­age to their car­ry-on items dur­ing flight – includ­ing as a result of the actions of an overzeal­ous crew mem­ber, a fel­low pas­sen­ger indel­i­cate­ly shov­ing their items into an over­head lock­er, or from those items falling from an over­head lock­er, hav­ing moved around dur­ing flight.

Conclusion

Until the Gov­ern­ment acts to bring the lia­bil­i­ty lim­its for domes­tic trav­el in line with those for inter­na­tion­al trav­el, pas­sen­gers should give extra thought to those items of lug­gage that they carry-on.