Compensation for ''Accompanied Cargo''

Copyright 2008, Traffic World, Inc.

Q:

After attending Air Cargo China 2008, my colleague and I were to return to India on a flight from Shanghai to Mumbai a few days ago. However, owing to a technical snag, this flight was delayed for nearly 24 hours and left the next day.

Our baggage, checked in early in the morning the day of the flight, was supposed to leave and be retained by the airline from then on. But it was not delivered to us at Mumbai when we landed.

A property irregularity report for the missing baggage was filed, and up to the moment of writing there is no news of the same.

A claim for travel delay and baggage loss has also been filed with an independent insurance company, from which an overseas policy was taken for this trip. One column about a claim form pertained to how much money the airline had paid us and said this was to be subtracted, to arrive at the net loss value.

My questions are:

(1) Are the insurance people justified in asking what other compensation we have received, especially when their maximum liability, under this policy, is fixed at $500 U.S. dollars?

(2) What is the reasonable time the airline must be allowed to trace our baggage before we insist on settlement of compensation from their end?

I hope you are familiar with the rules and regulations for "accompanied cargo" and can guide us in this matter.



A:

It''s not often I receive a question from a foreign reader concerning non-U.S. law, and I''m flattered that you chose to consult me.

I also don''t ever recall having received a question relating to a passenger''s lost luggage (nor having heard it called "accompanied cargo"). But yes, I''m familiar enough with the applicable law to attempt an answer.

In fact, it''s not exactly "law" that applies here, but rather the Warsaw Convention, an international treaty to which I understand India and China are both party. And if you expect compensation from the airline under this treaty you need to get moving right now.

You gave me the specific dates, and as I write this (and e-mail you an advance courtesy copy) it''s been five days since your flight arrived in Mumbai and your luggage should have been there with you. That gives you, I''m afraid, just two more days to file a formal claim with the airline.

Filing the property irregularity report was the proper move for you, but that''s only a "tracer" form - a notice to the airline that your luggage was lost and the carrier should hunt for it. It doesn''t take the place of an actual claim.

And Warsaw provides that claims for lost goods, including luggage, must be filed within seven days from the date the shipment arrived (or was supposed to arrive) at the destination airport. As I say, you have only two days left of this very abbreviated time limit and need to get your claim filed immediately.

Nor can you skip that step. In order for you to have the right to file suit against the airline Warsaw says you must first have filed a timely claim. You''ve plenty of time to sue after that - Warsaw gives you two years - but you may not do so unless you''ve got your claim in.

So don''t wait any "reasonable time" for the airline to turn up your bags; instead, assume it won''t find them and act quickly on that assumption. You can always withdraw the claim if it does, belatedly, locate and deliver them; but if you let the seven-day limit expire, you''ll never have another window in which to present your claim for monetary damages.

As to your first question concerning your private insurer''s inquiry about any other compensation you may have received, I obviously can''t answer fully without reviewing the details of your policy. However, I can tell you the question was an appropriate one for your insurer to ask.

Policies of this nature come in two flavors. One sets a ceiling value - here $500 - only on the insurer''s liability to you, while the other accompanies that ceiling with the right of subrogation against anyone else who may be co-liable to you for the covered loss.

In the first case you must show the actual value of what you''ve lost - the bags and their contents. Then you deduct whatever the airline pays you, which will be around $9-10 per pound maximum. If there''s a balance remaining, the insurer pays you that balance up to its $500 cap.

The other way, though, it''s much worse. Actual value doesn''t enter the picture; the insurer gets credit for every penny you receive from the airline, and only owes you whatever amount (if any) the airline''s payment falls short of the $500 coverage.

You''ll have to check the details of your policy to know which way it works.

But either way, get that claim in to the airline right now. If you don''t the insurer may well argue that failure to timely claim against the carrier constitutes negligence on your part and, since you carelessly lost your chance to collect from the airline, that this voids any obligation it might otherwise have to pay you anything at all!



-- Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, (843) 559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the 536-page compiled edition of past Q&A columns, published in 2001, at $80 plus shipping. Later compilations by request.





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