Lost & Delayed Baggage: Your Rights Under the Montreal Convention

In the current context of travel, it’s not uncommon to see images of airports brimming with stacks of unclaimed luggage, with each of those bags belonging to someone who would prefer to have their belongings with them instead of in a massive heap.

Unbeknownst to many travellers, if your bag is damaged, delayed, or lost during transit, you can claim reasonable expenses incurred as a result of your bag not arriving with you. Plus, these expenses cover a lot more than a toothbrush and a new pair of socks — if there’s something in your lost/delayed bag that you need, in most cases, you can claim it.

While some jurisdictions spell out passenger protections for lost/delayed baggage, such as the Air Passenger Protection Regulations in Canada or EU261 in Europe, the Montreal Convention is a lesser known treaty that spells out air carriers’ liabilities in the event of damaged, delayed, or lost luggage (amongst other circumstances).

Let’s have a look at what the Montreal Convention is and why you should know about it.

What Is the Montreal Convention?

The Montreal Convention is a treaty which has been signed and ratified by 132 nation states and the European Union.

The Montreal Convention provides uniform rules and regulations for the international carriage of passengers, cargo, and baggage. Signed in Montreal in 1999 and effective as of 2003, it is an update to the 1929 Warsaw Convention and 1955 Hague Protocol.

In Canada, the Montreal Convention is not only ratified, but it’s also incorporated into the country’s laws under the Carriage by Air Act.

The treaty provides consistency in the rules related to the international carriage of passengers, baggage, and cargo.

For example, under the Montreal Convention, if an air carrier injures or causes the death of a passenger, they are liable to pay damages of up to roughly $175,000 (USD).

This amount could be greater, but if the airline can prove that the damages caused were not due to their negligence or caused by a third party, they won’t be liable for a greater amount.

During the carriage of cargo, should the airline damage the contents of the cargo, they are liable to cover damages.
The most frequent application of the Montreal Convention, though, is for damaged, delayed, or lost baggage.

When Does the Montreal Convention Apply?

If you are travelling from a country that has signed and ratified the Montreal Convention to another country that has signed and ratified the Montreal Convention, the Montreal Convention applies.

For example, since both Australia and Canada have signed and ratified the Convention, the Montreal Convention applies when travelling between the two countries. The same is true for travel between Canada and the United States.

If your departure and arrival points are within a country the has signed and ratified the Montreal Convention and there is not a planned stopover in another country, the Montreal Convention does not apply.

For example, travelling from Vancouver to Toronto, the Montreal Convention does not apply.

Note, however, that Canada’s Air Passenger Protection Regulations essentially extend the Montreal Convention’s guidelines for baggage to domestic flights. Therefore, even flying domestically within Canada, you are covered for damaged, delayed, and lost baggage.

If your departure and arrival points are within a country that has signed and ratified the Montreal Convention and you have a planned stopover in a country that has signed and ratified the Montreal Convention, the Montreal Convention applies.

For example, if you plan to do a stopover in an island in Micronesia, a signatory of the Montreal Convention, while doing the United Island Hopper, the Convention applies if you start and end your journey between Guam and Honolulu – both of which are part of the United States.

If your departure and arrival points are within a country that has signed and ratified the Montreal Convention and you have a stopover in a country that has not signed and ratified the Montreal Convention, the Montreal Convention applies.

For example, if you are travelling from Almaty to Nur-Sultan (within Kazakhstan, which is a country that has signed/ratified the Montreal Convention) via Tashkent (Uzbekistan has not signed/ratified the Montreal Convention), the Montreal Convention applies.

Damaged, Delayed, or Lost Baggage

If your bags have been destroyed, lost, or damaged while they were under the airline’s care, and if the damages were not caused due to defective or poor quality baggage (e.g., a cardboard box), you can claim damages under the Montreal Convention as long as your flight routing qualifies.

Carry-on baggage is also covered by this provision, although it is difficult to think of a situation where the airline could lose, damage, or delay your carry-on baggage – unless, of course, you were forced to check your bag at the gate.

In the event that your checked baggage has not been delivered to you by 21 days after its original date of arrival, it is considered lost, and you can claim damages that result from the loss of your baggage.

But what if your bags are just delayed and not lost?

Article 19 states that the carrier is liable for damage caused by delays to passengers and baggage during air travel. There is, however, a qualifying statement that suggests that the carrier is not liable for damages from delays that are outside of its control.

Websites that offer (paid) assistance for claims with airlines list inclement weather, political/civil unrest, union/airport personnel strikes, bird strikes, and other reasons as situations where airlines are not liable for damages caused due to delay.

While the language around delays to passengers is quite murky, delayed luggage is quite clear: if you dropped your bag off at the departure airport and it doesn’t arrive at the destination airport, you have yourself a delay!

Let’s have a look at what the Montreal Convention states in regard to luggage delays.

Article 22 states the liability limits that carriers are subject to in the event of a delay. You’ll notice that the amounts are stated in Special Drawing Rights, which is a “basket” of currencies created by the International Monetary Fund and the value is based on the U.S. dollar, the Chinese renminbi, the Japanese yen, the euro, and the British pound sterling.

Carriers are liable for up to 1,288 Special Drawing Rights in the event of destruction, loss, damage, or delay to your baggage. At the time of writing, that is equivalent to around $2,280 (CAD), which seems like a substantial amount for a lost or delayed bag.

Indeed, this is certainly greater than any airline would volunteer to cover when you originally file a baggage claim. In the event of delayed luggage, depending on the lost baggage staff you speak to, you may be told that you’re covered to go and buy basic necessities but nothing more, which clearly is not the case.

It is important to note that just because the airline is liable for 1,288 SDR doesn’t mean that you are entitled to claim the full amount. Rather, this means that you can claim damages of up to 1,288 SDR in the event of a lost or delayed bag.

You can also submit damages of more than 1,288 SDR if you can substantiate your claim.

What Are Damages?

When you incur additional costs that arise as a result of the loss, damage, or delay to your bag, you have incurred damages. In other words, this covers any time when you have to spend money that you wouldn’t have otherwise spent due to your baggage not arriving on time.

If you packed your toothbrush and other hygienic supplies in your checked luggage, and you are now without them at your destination and have to purchase new ones, you now have damages that arose as a result of your lost or delayed luggage.

If you are headed to a beach resort and your bathing suit was packed in your checked luggage, the new bathing suit that you will need to buy, that you wouldn’t otherwise have had to buy, as a result of the delay or loss of your baggage counts as incurred damages.

Maybe you have an important business meeting and your suit was in your delayed/lost suitcase. You may be able to make a claim for a replacement suit that you wouldn’t have otherwise had to purchase.

To make a claim, you must be able to reasonably justify your expenses, and you’ll need to retain receipts for all of the incurred damages.

In other words, buying a new winter coat when your bag doesn’t arrive in the Maldives isn’t a reasonable expense. Buying some sunscreen, a bathing suit, and a sun hat would be reasonable expenses if those items were in your delayed bag and you would have otherwise needed them at your destination.

If you’re headed for a ski vacation and your equipment is delayed, buying expensive ski gear might be hard to justify as well, but you can always rent gear in the meantime and claim for the rental costs.

The keyword with all claims is “reasonable.” You should use your best judgment in your purchases, being cognizant of the fact that the airline will scrutinize them, and you may need to justify why the purchase was necessary.

A Real-Life Example

A few years ago, my wife and I flew from Dublin to Split via London with British Airways. When we arrived in Split, my bag came out on the carousel, but hers did not.

We filed a property irregularity report (PIR) at the airport in Split and headed to our hotel, Le Méridien Lav.

The weather in Split was much different than the weather in Dublin and all her warm weather clothing was in her checked luggage, so my wife had to buy some toiletries and appropriate clothing that she otherwise would not have had to buy had her baggage arrived on time.

The luggage was located later on that day, and was set to be delivered to our hotel on the evening of the day after we arrived.

In the meantime, she took a cab to the nearest shopping centre, claimed some reasonable expenses, and kept all documentation relating to her purchases.

We submitted the receipts and a detailed claim form to British Airways, citing the appropriate parts of the Montreal Convention that she was claiming damages under.

Upon receipt of the bag, we also noticed significant damage and filed a separate claim under the Montreal Convention. The airport staff were helpful throughout the process.

In the end, all of her claimed damages, including toiletries, a bathing suit, a few outfits, and shoes, as well as taxi fare to and from the shopping centre, were covered. Additionally, she received compensation for the damage to her bag, as well as a £100 British Airways voucher for the inconvenience.

She spent around $500 (CAD) total, and everything was reimbursed. The money was deposited directly in our bank account in a reasonable amount of time.

What to Do If Your Bag Is Delayed or Lost

If your bag doesn’t arrive with you at your final destination, the first thing to do is to know what your rights are. You should read through the Montreal Convention and your airline’s tariff, which spells out the agreement between you and the airline, keeping in mind that the Montreal Convention and other relevant laws take precedence over the airline’s tariff.

The next thing you’ll want to do is file a property irregularity report (PIR) at the airport. The baggage desks are usually located close to the luggage carousels, but in the rare case when there’s no desk or personnel available for your airline, there will be an online report form for you to fill out instead.

After filing out the report either in person or online, you’ll be provided with an acknowledgement and a tracking number for your bag.

Then, at this point, you can now start claiming damages for reasonable interim expenses that you wouldn’t have otherwise had to make if you had your baggage. Be sure to keep detailed receipts, rather than just credit card charge slips, as you are going to need them when you make a claim in writing to the airline within 21 days of arrival.

There is an excellent step-by-step guide (with detailed information for air passenger rights in general) for Canadians at the Air Passenger Rights website.

The last step is to wait for the result of your claim. This may take some time, so you’ll have to be patient.

Depending on the outcome, you will either receive some or all of the damages that you claimed, or you may need to escalate your claim further if you are not satisfied with the result.

In Canada, you can also file a claim with the Canadian Transportation Agency who will mediate the dispute (you will need patience here as there is often a significant backlog of cases, and this may take a couple of years), or you can escalate the claim to your jurisdiction’s small claims court.

Leveraging Your Travel Insurance

In the event that the airline denies part of your claim amount which it believes to be beyond reasonable or outside of its liability, you may claim the excess through your travel insurance, which you could have through your credit card or as a standalone policy.

Keep in mind that unlike standalone insurance policies that you purchase, lost and/or delayed baggage insurance coverage through credit cards is only effective if you charge the full cost of the flight to the card – or in the case of award bookings made on airline co-branded and rewards cards, if you charge the taxes and fees of the award booking to the card.

Now, there’s a time limit of usually 60 days for you to file a claim with the insurance provider, and since claims with airlines often take a long time, it would be prudent for you to open concurrent claims with both the airline and the insurance provider. Your insurance provider will then wait for the results of your claim with the airline before deciding what they will cover.

It also bears repeating that your insurance provider, as a last payor, will usually only pay what the airline doesn’t cover. This means you can’t and mustn’t make a claim with the insurance provider alone – you must always first (or concurrently) make a claim with the airline.

To be sure of what’s included with your insurance coverage, it’s important to read and understand the welcome kit that comes with your credit card or your standalone policy.

Conclusion

While lost or delayed baggage is certainly frustrating, knowing the details of what airlines are liable for can certainly alleviate your luggage woes.

By being aware of the Montreal Convention and other rights as an air passenger, you now know that you can claim damages if your bag is lost, damaged, or delayed.

While the inconvenience of being without your stuff is annoying, coming back with a new toothbrush, Speedo, or three-piece suit is an optimal outcome for having suffered damages.