Claims & Complaint Handling, Air Cargo Law, Insurance
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It is generally accpeted that the main contractual obligations of the carrier are to deliver a shipment:
- -In the same state in which they were accepted, undamaged
- -Complete: in number of colli, and in contents (contents only as far as checked and agreed)
- -On time
Based on the original air waybill copies, the shipper and consignee have the right of disposition over the cargo shipped under the air waybill.
In case the customer of the carrier is not happy with the services delivered, he can file a complaint or a claim:
What is a Complaint?
-A complaint can be defined as: An official statement from a customer about his unhappiness with the service or operation of the service provider. A complaint can be issued in the form of a letter, an e-mail or a phone call, generally directed to the customer service organisation of the carrier.
-A claim can be defined as: A written complaint about any aspect of the performance of an organisation in relation to a contract, combined with a demand for financial compensation. Main categories for claims are:
- -Damage : physical damage to the shipment
- -(Partial) loss : loss of an entire shipment, or one or more entire parcels from a larger shipment
- -Theft / pilferage) : loss of items out of a parcel, or a (partial) loss of a shipment that is certainly caused by theft
- -Delay : delivery of the shipment later than the agreed or reasonably expected delivery time
Claims from an end-customer to a forwarder, or from a forwarder to an airline or, in more general terms, also from a carrier to a subcontractor, must be filed timely according to the applicable transport conditions, either as a full claim or as a preliminary claim notification. It is important to always mention the air waybill number and flight / routing when a claim is filed. And it is important for the forwarder / airline / carrier (or other parties in the chain) to immediately back-up the related shipment and operational information from the IT-systems involved.
The right to claim is laid down in the contractual conditions and applicable law.
Applicable law vs conditions
-Apart from the contractual conditions, almost all international transportation by air is regulated by international treaties known as the Montreal Convention or the Warsaw Convention (with several amending Protocols).
-National Aviation laws may also apply. They cannot overrule the international treaties, only extend regulations not specified in the Montreal or Warsaw Convention.
-For the air transport, or airport-to-airport part, the contracting carrier (= the carrier who’s (master)air waybill is used) as being the prime contractor is responsible towards shipper and consignee for the acts and omissions in the execution of the contract performed by its own employees and/or its agents. It is basically the task of the forwarder (as the agent for the shipper and/or consignee or end-customer), to file a claim at the airline in case something goes wrong.
For the forwarding, or the door-to-airport or airport-to-door part, the contracting forwarder (= the forwarder or NVOCC who’s (house)air waybill is used) as being the prime contractor is responsible towards shipper and consignee for the acts and omissions in the execution of the contract performed by its own employees and/or its agents or subcontractors. In case something goes wrong in the whole contracted door-to-door transport, the party who contracted the forwarder (e.g. the shipper or the consignee) should claim a file at the forwarder for this.
-The liability of the carrier is limited ; allowed claims are compensated with a standard amount per kilogram. This is unless grove negligence, wilful misconduct or fraud on the part of the carrier can be proven, or when the air waybill is missing.
-Because the standard compensation of allowed claims will often be lower than the actual financial loss, the customer can consider additional insurance. This can be arranged for a specific shipment via the air waybill if the carrier provides this additional service, or by means of a separate (overall or specific) company transport insurance.
-International carriage by air is subject to international law as laid down in the Warsaw Convention (1929) for all countries that have ratified this international treaty. Several amendments were made afterwards, of which the most important ones are:
- -The Hague Protocol (1955)
- -The Montreal Protocol # 4 (1975, but effective only since 1998).
In 1999 international legislators (read: governments) came together again in Montreal for an entire revision of the convention, in which several industry standards issued by IATA (= airlines!) were incorporated. This time, the result was not a further protocol to the Warsaw Convention, but a new ‘Montreal Convention’. This convention became effective on November 4th, 2003 between the thirty states that had ratified it until that date. Further ratification by individual states remains open for each of those Conventions and Protocols.
-A very limited number of countries have never ratified any international treaty with regard to air transportation. Carriage to and from such countries is therefore not ruled by international law. In such cases the Conditions of Contract as printed on the reverse of the Air Waybill and the General Conditions of the carrier apply. These conditions also apply to all carriage governed by the Warsaw / Montreal Conventions as far as they do not conflict with the applicable version of the law.