JurisdictionUnited States
Publication year2021

§ 2.07 Lost, Damaged, Delayed and Mishandled Baggage

Airline passengers typically carry luggage with them. Virtually all passengers expect that their baggage may be searched849 and subject to regulations regarding size850 and prohibiting the importation of goods from certain countries.851 Whether the trip is for business or pleasure, delays in receiving one's luggage, or partial or complete loss, can interfere with, if not defeat, the very purpose of the trip. Baggage claims against air carriers number in the millions annually.

[1] Contract of Carriage

As a general rule an air carrier is a common carrier and regarded in the common law as an insurer of the baggage entrusted to it.759 An air carrier can limit some of its liability for lost, damaged or stolen baggage by agreement in the contract of carriage. Air carriers may impose service fees for curbside handling by skycaps853 and additional charges per bag.854 The viability of such liability limitations will depend upon several conditions. First, an air carrier may only limit its liability for breach of contract and negligence.855 Liability arising from gross negligence856 or willful misconduct such as fraud or possibly conversion857 can generally not be limited or disclaimed. Second, in order to enforce a liability limitation, an air carrier must demonstrate that the traveler was given a fair opportunity to choose between a higher or lower liability by declaring a corresponding greater or lesser value858 for the baggage entrusted to the air carrier. Third, at common law such disclaimers or liability limitations may be void for lack of proper notice, readability, reasonableness or because they are unconscionable.859 In addition, state law claims arising from theft of items from baggage may be preempted, although such claims may be reasserted as federal common law claims.860

[2] Lost, Damaged, Delayed and Mishandled Baggage

Pursuant to the Airline Deregulation Act, all tariffs previously filed by air carriers were eliminated as of January 1, 1983. Although the Civil Aeronautics Board had intended that all issues arising from lost, damaged or stolen baggage be determined by the courts pursuant to the common law,861 it enacted in late 1983, revised in 2004, and again in 2008, Part 254- Domestic Baggage Liability Rule862 which raises the monetary liability of domestic air carriers to $3,300 per passenger yet retains the incorporation by reference system. Domestic airlines are permitted to incorporate by reference the actual terms and conditions of the contract of carriage into passenger tickets.863 Passengers may pay for increased protection under the released-valuation doctrine.864 The terms and conditions regarding liability for lost, stolen, damaged or delayed baggage vary widely among airlines, and may or may not be enforceable.865 Delays in baggage handling have increased since the implementation of more rigorous security procedures866 since September 11, 2001.867 In addition, airlines may not be complying with Department of Transportation lost baggage rules.868

[a] Breach of Contract

A breach of contract action will depend upon the nature of the loss. If the bag is delayed but delivered then the damages flowing therefrom will, typically, be consequential in nature. Those damages which are foreseeable869 should be recoverable. In one case, the plaintiffs purchased a package tour featuring air transportation, hotel accommodations and golfing privileges.870 The plaintiff's baggage included appropriate clothing and golfing equipment and was entrusted to the air carrier for transport. While none of the baggage was lost, none of it was delivered during the entire period of the stay. The plaintiffs were required to purchase all necessary articles including golfing equipment. In addition, some items contained in the missing luggage could not be purchased. The plaintiffs sued for the cost of the airline tickets, the cost of the golfing package and for harassment and discomfort. The court permitted recovery for all out of pocket expenses and a diminution in the value of the golfing package.871 In addition, damages for humiliation, harassment, annoyance and discomfort should be recoverable since they are a natural consequence of any case involving lost or misdelivered baggage.872

If the baggage loss is permanent, then the passenger will be required to prove the value of the missing items. In the absence of receipts or other documents reflecting purchase, the plaintiff will have to establish value based upon other evidence.873

[b] Negligence, Conversion and Fraud

Alleging and proving negligence,874 conversion875 fraud876 and tampering877 may require discovery of the air carrier's baggage handling procedures.878 State law claims may be preempted by the Airline Deregulation Act, and passengers may be required to restate their claims as a violation of federal common law.879 It must be demonstrated that the air carrier willfully misdelivered880 or failed to deliver the missing or delayed baggage. Such willfulness was established in a case881 in which the air carrier willfully refused to unload plaintiff's baggage, which was subsequently lost. In another case, the air carrier was found to have failed to notify the passenger that his baggage would not be transported on the same plane as the passenger.882 The failure to disclose such relevant information was held to constitute misrepresentation and concealment.

[c] R es Ipsa Loquitur

As noted, the doctrine of res ipsa loquitur is used in situations in which the instrumentality is solely within the control of the air carrier and the accident which occurred could not have happened but for the air carrier's negligence.883 Certainly, the failure of an air carrier to return baggage entrusted to it warrants the application of this doctrine.884 The doctrine of res ipsa loquitur may be utilized to prove not only negligence but conversion as well.885

[3] Accidents Caused by Mishandling of Baggage

Airline passengers have a natural anxiety about losing baggage and a desire to avoid the congestion of the baggage retrieval process. There have even been a number of cases involving accidents at baggage pick-up areas.886 Airlines have responded by providing larger overhead storage compartments. Unfortunately, these have been known to create a dangerous condition, and on numerous occasions passengers have been injured by baggage887 —especially briefcases888 and laptop computers889 —falling from overhead compartments. Although the courts have been reluctant to find air carriers liable for failing to restrict the use of overhead storage compartments,890 some courts have done so.891 The standards of care are, generally, those arising from the rules and regulations of the FAA.892 Special consideration has been shown to unusual problems,893 including crutches and canes.894

[4] Transporting Pets and Service Animals

Some passengers travel with their pet animals895 or, if disabled, with their service animals.896 Notwithstanding their desire to have a favored pet share an airline seat with the passenger,897 those airlines having provisions for transporting pets require that they travel as cargo. The terms and conditions under which pet animals are transported vary among airlines,898 and the treatment of pet animals may be less than humane.899 The liability of airlines for the death or destruction of animals will depend on the circumstances and the enforceability of disclaimers limiting liability.900 Part 245-Domestic Baggage Liability Rule901 sets the monetary liability of domestic air carriers to $2,500 per passenger pets,902 which was raised to $2,800.903 In addition, the aggrieved pet owner may file a complaint with the U.S. Department of Agriculture (USDA) claiming a violation of the Animal Welfare Act (AWA).904

[a] 2014 Final Rule on Transportation of Dogs and Cats

Over two million pets and other live animals are transported by air every year in the United States including pet dogs905 and cats and other interesting animals such as allegedly pet rats58 and cockatoos.907 As demonstrated by the sad demise of Willie the Bulldog, conditions on board commercial aircraft have been problematic. For example, in Reeves, When Dogs Must Fly908 it was reported that "The [A.S.P.C.A.] . . . [warns] of the dangers of flying dogs in the cargo hold of planes-including overheating or freezing, suffocating and being mishandled, lost or loose." Conditions for pets seem to have improved in recent years. "According to (DOT) airlines reported five incidents involving the loss, death or injury of pets while traveling by air in December 2012 which was the last reported data. The incidents involved one pet death and four pet injuries. For all of last year, carriers reported 30 pet deaths, 27 pet injuries and one lost pet. In 2011, carriers reported 35 pet deaths, nine pet injuries and two lost pets."909

[i] Categories of Animals Transported

The Final Rule910 notes that "There are three categories for animals transported in scheduled passenger air transportation: 'unassigned in the cabin,' 'accompanied baggage' and 'live cargo shipments.' Animals categorized are 'unassigned in the cabin' are usually small pets that remain with the owner in the cabin for the duration of the flight. Air carriers may allow a limited number of passengers per flight to transport their animals as 'unassigned in the cabin.' Pursuant to 14 CFR Part 382, service animals accompanying individuals with a disability are not included in this category. Animals categorized as 'accompanied baggage' are pets traveling with passengers on the flight that are checked as baggage, remain in the custody of the air carrier for the duration of the flight, and are transported in the cargo compartment. Animals categorized as 'live cargo shipments' are animals that are not associated with passengers on the flight and are transported in the cargo compartment. While 'accompanied baggage' and 'live cargo...

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