May 2011: Newsletter – Aviation

Flieger A., attorney at law, Flieger Law Office bvba

with the cooperation of Stijn Brusseleers, attorney at law, Flieger Law Office bvba

Judgment of the Court of Justice May 6th  2010

                                         Axel Walz versus Clickair SA premilary ruling

         Lost checked luggage: limitation of liability includes material and non-material damages


A question usually raised by passengers of an airline with respect to the loss of checked luggage is if they can claim, next to the material damage for the loss of their luggage, as well the non-material damages.

The Court of Justice of the European Union pronounces itself  in this issue very clearly in a decision of May 10th, 2010.


Axel Walz brought an action against Clickair in April 2008 claiming damages for the loss of checked baggage which he checked for a flight from Barcelona, (Spain) to Oporto (Portugal) operated by Clickair.

He claimed an amount of € 2.700,00 for the value of the lost baggage and € 500,00 for non-material damages resulting from that loss.

The airline opposed the claim, maintaining that the damages claimed exceed the limit of liability of loss of baggage of 1000 SDR as mentioned in Article 22(2) of the Montreal Convention.

The Court of justice was very clear by stating that the term ‘damage’ which underpins Article 22(2) of the Montreal Convention says that the limit of an air carrier’s liability for the damage resulting from the loss of baggage must be interpreted as including both material and non-material damage.

Indeed one can agree with this sentence the more that as regards the liability of European Union carriers for the carriage of passengers and their baggage by air in the territory of the Union, Regulation No 2027/97 implements the relevant provisions of the Montreal Convention. As well we recall Article 3(1) of the Regulation 2027/97 that the liability of European Union air carriers in respect of passengers and their baggage is to be governed by all provisions of the Montreal Convention relevant to such liability.

One will also recall that the Montreal Convention has been an integral part of the European Union legal order from the date the convention entered into force, the Court of justice has jurisdiction to give a preliminary ruling concerning its interpretation.


In respect of the interpretation of the term ‘damage’, the court refers to the fact that the Montreal Convention does not contain any definition of the term ‘damage’, and therefore the term must be given a uniform and autonomous interpretation.

In that connection Article 31 of the convention of the Law of Treaties, signed in Vienna on 23 May 1969, which  codifies rules of general international law, states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.

The court proceeds with an investigation of the words “préjudice” (cf. French language version of the Montreal Convention and other authentic language versions) and concludes that “luggage” and baggage is used without distinction to designate both the prejudice and the dommage

In addition, Article 22 of the Montreal Convention limits a carrier’s liability in the case of destruction, loss, damage or delay, which implies that the nature of that damage sustained by a passenger is irrelevant in that regard.

And lastly, in order to determine the ordinary meaning to be given to the term ‘damage’ in accordance with the Convention of the Law of Treaties it is recalled that there is a concept of damage which does not originate in an international agreement and is common to all the international law systems and sub-systems. Without going in depth into further interpretation of the Articles on Responsibility of States for International Wrongful Acts, drawn up by the International Law Commission of the United Nations, the Court says that it should be noted that there is nothing in the Montreal Convention to indicate that the contracting States intended to attribute a special meaning to the concept of damage. 

It follows that the term ‘damage’ as mentioned in chapter III of the Montreal Convention must be construed as including both material and non-material damage.

This is indeed an application of the system of strict liability for air carriers.


Specifically it should also be noted that under Article 17(2) of the Montreal Convention  a carrier is presumed liable for that damage, upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in charge of the carriers.

A system of strict liability of that kind implies an equitable balance of interests be maintained in particular as regards the interests of air carriers and passengers.

In order to maintain such a balance it is convened by the contracting States that, in accordance with Article 22(2) of the Montreal Convention in the case of destruction, loss, damage or delay of baggage, the liability of air carriers is limited. The resulting limitation of compensation must be applied per passenger.

It is indeed required that there be clear limits on compensation relating to the total damage sustained by each passenger in each of the situations, regardless of the nature of the damage caused to that passenger.

Indeed a limitation of the compensation so designed by the Convention enables passengers to be compensated easily and swiftly, without imposing a very heavy burden of damages on air carriers, which would be difficult to determine and to calculate.  Dealing otherwise would undermine, and even paralyse the economic activity of those carries.

So the various limitations of compensation as mentioned in Article 22(2) of the Montreal Convention must be applied to the total damage caused, regardless of whether that damage is material or non-material.

One should also not forget that Article 22(2) provides that the passenger may make a special declaration of interest at the time when the checked baggage is handed over to the carrier… However few people know such…..

For further information and comments, please contact Arthur Flieger at, Website:, telephone: 03/238.77.66 – fax: 03/216.18.44


Copyright A. Flieger

This is not a legal opinion.