by Atty. Dennis Gorecho
The Saga of the Missing Luggage
One of the greatest fears of any traveler is finding out after a long day of voyage that his bags didn’t make it in his airport of destination.
The dilemma with missing luggage was depicted in Steven Spielberg’s 2002 film “The Terminal” starring Tom Hanks and Catherine Zeta-Jones.
It is about an Eastern European man who got stuck in New York’s John F. Kennedy Airport terminal when he was denied entry to the United States and at the same time was unable to return to his native country because of a military coup.
It was inspired by the true story of Mehran Karimi Nasseri who lived in Terminal One of the Charles de Gaulle Airport, Paris, from 1988 until 2006. He was marooned in the airport for 18 years after he lost his luggage containing his refugee papers.
If this unfortunate situation happens to a traveler, he must immediately report any missing luggage to airport service desk personnel who will then conduct an electronic search using the airline tracing system to immediately locate the luggage.
During the waiting period, the airline is bound to reimburse whatever essential purchases made and losses incurred while waiting for the luggage.
In an action based on a breach of contract of carriage, the aggrieved party does not need to prove that the common carrier was at fault or was negligent.
He is only required to prove the existence of the contract and non-performance by the carrier.
Considering that a contract of carriage is vested with public interest, a common carrier is presumed to have been at fault or to have acted negligently in case of lost or damaged goods.
In cases filed against an airline company in relation to lost or missing luggage, it usually raises the defense that it performed extraordinary diligence in transporting the passenger and his luggage to his last destination.
Even if found liable, it will stipulate that the amount of actual damages should only be $400, or $20 per kilo, if the passenger did not declare the actual value of his suitcase, pursuant to the Warsaw Convention, or formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air.
It is an international convention ratified by 152 states which regulates liability for international carriage of persons, luggage, or goods performed by aircraft for reward.
There is a limitation period of two years within which a claim must be brought at his discretion in one of the following forums: (a) the carrier’s principal place of business, (b) the domicile of the carrier (c) the carrier’s place of business through which the contract was made, and, (d) the place of the destination.
In the case of KLM Royal Dutch Airlines vs. Dr. Jose Tiongco (GR No. 212136, October 4, 2021), the Supreme Court ruled that the liability for damages is not limited to that prescribed by the Warsaw convention.
The convention is deemed a limit of liability only in those cases where the cause of the death or injury to person, or destruction, loss or damage to property or delay in its transport is not attributable to or attended by any willful misconduct, bad faith, recklessness, or otherwise improper conduct on the part of any official or employee for which the carrier is responsible.
Tiongco purchased tickets from the airline for his trip to Almaty, Kazakhstan for a speaking engagement. However, his checked-in suitcase went missing during his flight.
The suitcase contained his clothing for the conference wherein he was a guest speaker, a copy of his speech, and his resource materials.
KLM breached its contract with Tiongco when it failed to deliver his checked-in suitcase in the designated place and time.
Even after his return to the Philippines, Tiongco’s suitcase was still missing.
Nobody from KLM’s personnel updated him of what happened to the search.
It was only when Tiongco wrote KLM a demand letter that the latter reached out to him asking for time to investigate the matter.
Yet, it did not even notify him of the result of the purported investigation.
KLM’scustomer relations officer categorically testified that suitcase was eventually found in Almaty on board a Turkish Airlines plane which immediately informed KLM of the luggage.
However, KLM did not bother to inform Tiongco that his suitcase had been found or took the necessary steps to transport it to Manila.
Damages are proper as KLM displayed indifference to the plight and inconvenience suffered by Tiongco when he lost his luggage.
(Peyups is the moniker of the University of the Philippines. Atty. Dennis R. Gorecho heads the Seafarers’ Division of the Sapalo Velez Bundang Bulilan Law Offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)
