Substantially Exceeded – Delay as a Legal Issue

By: Alex Klein

Whoever chooses an aircraft as a means of transportation usually wants to save time. This should be true for both the transportation of passengers and cargo (baggage or goods) alike. Delay or non-performance of carriage, therefore, are quite unpleasant events for both the passenger and the consignor, and may cause considerable damage.

In modern day aviation, as well as in any other period of aviation an unchanged and often recurring factor remains the delay of aircraft. It not only happens to passengers but also to goods or baggage and it accounts for an always repeating discussion between the carrier, the party taking care of the transport, and the injured party, this being either the passenger, the consignor or the consignee of goods.

Since the early days of aviation law, law-makers all over the world have dealt with the problem. The ‘bible’ of aviation law, the Warsaw Convention signed in October 1929, has an article dedicated to delay. This article 19 states: “The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage or goods.” Not surprisingly this article has re-mained unchanged since then. Because of Its open wording the article has obtained much of its meaning through jurisprudence, explanations given to the wording of the article by courts. Since the Warsaw Convention is an international treaty, courts’ opinions are as spread as the countries having to deal with the interpretation of the Convention’s articles.

Where delay is governed by the Convention, the applicable national law on the other hand, governs non-performance of carriage. As a contract of carriage should be seen as a result-related agreement -contrary to an effort-related agreement- in which the achievement of the result agreed upon is binding, non-achievement of this result can be interpreted as a failure to perform according to the conditions of the contract, thus leading to a so-called wrongful act.

The Warsaw Convention does not however tell when a delay in the carriage occurs, but is limited to the regulation that if a delay occurs during the car-riage by air, the carrier will be liable for the resulting damage.

The definition
Delay may be defined as the untimely fulfilment of the contract of carriage by air, meaning that the time usually needed for similar transportation under the same conditions is ‘substantially exceeded’. The legal explanation of delay then reads that a carrier is liable for the delay due to any loss of the airwaybill or customs documents during the transportation by air, provided that the loss of these documents can be blamed on him, and the loss of these documents results in a delay in clearing customs and in a profit loss to the consignor because of its inability to make timely delivery of the shipment.

If the consignor takes care of the shipping, an injured consignee will always hold him responsible for any shortcoming in observing the terms of the agreement, simply because the consignor is his contracting partner.

To make these definitions workable a practical elaboration must be found. A possible solution given by IATA stipu-lated that carriage not exceeding the flight times set out in a schedule by more than fifty percent were to be regarded as punctual. While this could be acceptable on short distances, on long distances it is out of the question. On a journey lasting ten hours, a five hour delay would then be acceptable?!

Therefore, looking for a fixed standard, any standard, is not practical. Another solution is to use the following scale as as-sistance; in some commentaries on the Warsaw Convention it has been accepted as a reasonable solution. With a scheduled flying time of 1 hour, a 15 minute delay is still acceptable; 25 to 30 minutes is acceptable with a flying time of 2 to 4 hours; a 40-45 minute delay can be allowed when the flying time is between 5 and 8 hours and exceeding this flying time one should take a 10 percent delay into account as reasonable.

Any reasonable person will agree to the fact that a delay can never be fully ruled out and such a person will allow greater divergences from the schedule for long distance flights than for short distance flights anyway. With long dis-tances one may also face the fact that several stops on the way to refuel, clean the aircraft or for catering purposes can cause one major delay in the end. This leads to yet another definition of delay saying that whenever the period of time a reasonable passenger or consignor takes into account is exceeded unreasonably, a carriage may be considered to be delayed. It is the carrier who gives its customers certain expectations when it comes to the duration of a flight and flight schedules are issued or advertisements promise the public punctuality. The carrier, as a more experienced party, knows the average duration of the particular flights he offers, so it is his task to offer times that are feasible. So a carrier issuing a flight schedule should take responsibility for any fail-ure to meet the times indicated therein.

If flight schedules have not been issued or no fixed time has been agreed upon, one may take the average journey time of other carriers on the same route as an indication to calculate the time needed for the completion of the journey.

General Conditions of Contract
Still, carriers try to rule out any possible claims by excluding their liability for delay in the General Conditions. Such a condition can read as follows: “Times mentioned in time schedules or elsewhere are ap-proximate and not guaranteed and form no part of the con-tract of carriage. No time is fixed for the commencement or completion of carriage. Carrier assumes no obligation to carry the goods by any specified aircraft or over any particular route or routes, or to make connections at any point according to a particular sched-ules, and Carrier is hereby authorised to select or deviate without notice from the route or routes of consignment, not-withstanding that the same may be stated on the face of the airwaybill.”

A clause in the General Conditions of Carriage stating that the carriage is not bound to take place on a particular date can only mean that the carriage was not to be performed within a fixed or determinable period of time. Nevertheless the car-riage must be performed within a reasonable period of time. And if the airwaybill does not provide a clear date on which the cargo should be carried, the carrier is only compelled to carry the cargo as soon as pos-sible. The consignor may ex-pect transportation to start promptly or at least within a reasonable time, even if no specific time has been agreed on.

When reading the accumulations and build-ups of conditions carriers, being the stronger party consumers de-pend upon, come up with to get round a claim for delay, one must bear in mind that passen-gers and consignors choose air carriage as the fastest means of transport, and that they must pay several times the amount that any other means of transport would cost them. Therefore the time advantage will usually be the decisive factor and a restrictive interpretation by courts of law of this so-called small print seems appro-priate.

Delay and liability
When reading the wording of article 19 of the Convention only delay ‘’in the transporta-tion by air” can lead to liability. In article 18(2) of the Convention this period is defined as “…the period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in case of landing outside an airport, in any place whatsoever.” Outside this pe-riod the carrier can only be liable under the law of the country. Two criteria are mentioned here: first, the place where the goods are and second the fact that the carrier is in charge. The Convention thus defines the period of liability differently from most other fields of transport law where the carrier’s liability extends from the time it accepts the cargo until the time of delivery. This would strictly mean that any delay caused outside the period of time defined by the ‘actual’ carriage, would not be carrier’s responsibility.

Another opinion on this matter relates to the grammatical in-terpretation of the term “in charge”. It does not only mean ‘having custody of an object ’ belonging to someone else, but can also imply the legal duty to protect and exercise due care and supervision in respect of the cargo, thus clearly defining the period of time during which the carrier is responsible for the goods, because the consignor and consignee cannot dispose of them. Instead of taking the exact meaning of the article, one can also look at the pur-pose of it; as long as the cargo is within carrier’s sphere of control so that he is able to prevent the cargo from being damaged or lost, he is liable… This goes beyond the period of time carrier is merely a holder of the goods.

This latter opinion is also confirmed by the meaning usually given to the term transportation. The term transportation can best be explained when the action is analysed in three steps: first, the acceptance of the goods, then the actual transport and finally the delivery.

Acceptance will define the act of taking delivery by the carrier either to take possession or custody of the cargo for the purpose of transportation. The actual transport by air com-mences when the carrier has accepted the goods and thereby taken charge of them. If cargo is delivered to the carrier for storage in its bonded ware-house at the airport, the carrier is considered to have taken the cargo into his charge and there-fore will be liable for loss. Even before the actual carriage takes place. Any intermediate stops or any handling by some-one other than the carrier does not cancel any possible liabil-ity. This is even demonstrated by another article of the War-saw Convention, being article 25, reading that a carrier shall not be entitled to avail himself if the damage is caused by any agent of the carrier acting within the scope of his employment. The question whether or not the carrier and its -contracted- agents have taken all the precautions, necessary to prevent the damages from the delay, will first be addressed after it is determined that a delay has occurred during carriage.

The act of delivery is generally defined as the operation by which the air carrier gives up the charge of the goods, with the implied or expressed consent of the person entitled to delivery. This shows that the mere arrival of the cargo at the place of destination does not constitute delivery, neither does the unloading of the aircraft. Liability also extends to the period during which the carrier stores the cargo until the act of delivery to the consignee has taken place. It follows from this that the contract of carriage by air covers the whole period during which the cargo is in the charge of the carrier and carrier’s contractual obligations are fulfilled when the cargo is handed over to the consignee. If a consignee refuses to take delivery of the cargo the liabil-ity does not end, but the con-signee is then obliged to give further instructions, under penalty of loss of any further claims.

Case law
As said before the convention does not define the term ‘de-lay’. Case law and legal authors commonly define it as ‘the untimely arrival at the place of destination’. A speci-fication of the term ‘arrival’ is the time of disembarking -when applying to passengers- because from this time on one can determine whether or not the passenger has time enough to catch a connecting flight; in the case of baggage or goods the time of delivery is qualifying. Where baggage is concerned delay occurs where the baggage is not delivered within the period of time that is normally needed for it to be taken from the aircraft to the baggage claim area. Any delay at de-parture time is not enough to hold carrier liable for any dam-ages if the time of arrival is met punctually. But at what point can one suppose that arrival was untimely?

A possibility to find an answer to this question is to look at the terms of the transport agreement, since the agreement itself may state any fixed times. Accompanying the agreement, as supplements are the ticket or the airwaybill, as proof of the contract. Any other documents indicating any agreed times of departure or arrival can also be binding.

The burden of proving any de-lay lies with the injured party, the less protected weaker party, who must also proof what would have been a reasonable time. This burden can be stated as a Condition of Carriage and could read as follows: “Except as the Warsaw Treaty or other applicable law may otherwise require, carrier is not liable to the shipper or to any other per-son for any damage, delay or loss of whatsoever nature aris-ing out of or in connection with the carriage of goods or other services performed by Carrier incidental thereto, unless such damage, delay or loss is proved to have been caused by the negligence or wilful fault of the Carrier against whom the claim is made, and there has been no contributory negligence of the shipper, consignee or other claimant.

The proving party may refer to all possible means of proof, like flight schedules, airway-bills or any other documents. Then this party must demon-strate that this reasonable time has been exceeded signifi-cantly. The air carrier must then rebut this presumption of delay.

In scheduled air services the flight schedule containing, as one could reason fixed times for departure or arrival, may be relevant, since airlines under-taking such services could be under an obligation to stick to these flight schedules. Al-though the General Conditions of Carriage of the airlines will generally include a clause stating that no binding prom-ises are made with regard to flight times and that especially times given in timetables or any other flight schedules are not binding. Still, it is unac-ceptable if an airline uses its General Conditions in such a way that all liability for delay are excluded. This would be a violation of article 23 of the Convention, stating that “any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision shall not involve the nullity of the whole contract, which shall remain subject to the provi-sions of this convention.”

The kind of damage qualified for compensation is not men-tioned by the Convention. So either the national law which the contracting parties may have agreed upon or the law applied in accordance with the rules of the conflict of laws. A typical American judgement granted compensation for in-convenience and mental suf-fering because as a result of delayed delivery the plaintiffs had not been able to dress properly for a reception. Once, even a case of illness which was said to be have been caused by waiting for the de-layed departure, was accepted as damage under article 19 of the Convention. Compensation for loss of earnings on the other hand is not always granted. In the case of so called ‘moral damage’ certain amounts of money have been granted, although setting an exact amount is difficult.

Sustaining the liability for damage occasioned by the de-lay must be viewed as a so called ‘conditio sine qua non’: without the delay the damage would not have occurred. A judgement in this context held a carrier liable for delay that had been caused by an unnec-essary division of the cargo with transportation of the sepa-rate parts. The division had been the cause of the delay of the second cargo load.

Delayed live stock
A nasty problem I encountered some time ago is the delayed carriage of live stock. It is a problem acknowledged world-wide and is usually dealt with in the agreement between par-ties. During a visit I paid to a cargo company at Schiphol Airport I actually saw with my own eyes the degrading conditions animals undergo when it comes to carriage of live stock. The supervisor showing me around heard a buzz I could not yet detect, somewhere further in the export building and walking closer by the sound grew stronger. On a pallet stood a large amount of card-board boxes piled around twenty boxes high, the boxes being around one by one meter wide and fifteen centimetres high. The boxes were packed with these small yellow feathery bales creating a large cloud of dust around them. It is a sad thing to see, purely based on an economical consideration trying to put as many of these little chicks as possible in a certain space, thus lowering the costs of carriage and the marketprice. Standing there I was told that nowadays agreements are being made between the carrier and consignor as to the period of time live stock is caged in such a way. Usually the pallets with live stock are brought in at the last possible moment, keeping this uncomfortable situation to a minimum. Although this can be seen as a generous aim, a flight to for example the Far East will last about 10 hours anyway, apart from what’s in store for them anyway…

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