Pursuing claims under the Montreal Convention
This column will deal with how to go about making a claim under the Montreal Convention. The Montreal Convention (formerly known as the Warsaw Convention) is a treaty with more than 90 countries subscribing to it. It is applicable to cases involving the shipment of cargo among the subscribing countries, meaning that it applies to many international flights.
You will want to make sure that you have a copy of the air waybill (AWB), which is the contract of carriage. If you are going to make a claim against an airline, you should be aware of the timely notice provision of the Montreal Convention. If you do not complain about the condition of the cargo when it is delivered to you, it will be presumed that it was delivered in good condition.
If you discover a problem, you should complain to the air carrier as soon as possible. Under the Montreal Convention, the time period for filing damage claims is 14 days and for delay of cargo, it’s 21 days. You can lose your claim if you do not file it in a timely manner. You should gather up various documents such as the AWB, invoice, packing lists, survey reports and delivery receipts.
In making a claim, it is a good idea to specify the amount of damages and fully describe what the issue is as far as delay, if applicable.
You should send the claim in writing. In this modern era, you can do this by way of certified return receipt mail, regular mail, hand delivery, fax or email. You should try to get a receipt so that there is no dispute later about the forwarding of the claim to the carrier.
When you have a claim, it is a good idea to contact a surveyor – someone to inspect the cargo. If your shipment is insured, your certificate of insurance may give you the name of a surveyor at destination, particularly in a foreign country. If you do have insurance, make sure the insurance company receives notification as soon as possible, as well as the representative listed on the insurance certificate or policy.
It is possible that both the airline and the shipper/insurance carrier might have a surveyor. The surveyors from the insurance company should be experienced about surveying cargo damage.
If you are dealing with a shipment delivered to the U.S. and you do not have a surveyor, you might be able to find a cargo surveyor through the National Association of Marine Surveyors or through the Society of Accredited Marine Surveyors. They have members who concentrate on cargo, whether it is sea or air.
Another issue to keep in mind is that there is a two-year statute of limitations from the date of when the cargo arrived, or should have arrived, in which to file suit. This becomes important because in many states such as Florida, the time limitation for filing a breach of contract action is more than 2 years.
If you are the airline, you need to monitor these time limitations carefully to see if the claimant has in fact made a proper claim against you.
Another issue becomes the limitation of liability. The claim could be limited to US$12.29 a pound unless the shipper declares a higher value on the cargo. This is something that can be raised by the air carrier. It is also worth noting that the Montreal Convention can also apply to airfreight forwarders as well, particularly if they have issued an AWB.
A good many of these claims are insurance subrogation claims, which means that it is the insurance company trying to recover funds that it paid to the shipper or consignee who suffered the loss.
This is intended as a basic guideline so you can at least look at some of the key issues in handling aviation cargo claims.
(Editor’s note: Daniel W. Raab is a Miami-based attorney specializing in transportation issues. He is the author of Transportation Terms and Conditions, Chapter 47 of the New Appleman Practice Law Guide, Chapter 5 of the Benedict on Admiralty Desk Reference Book, and a contributing author to Goods In Transit.)