Supreme Court
Action No. 219 of 1982
18th May, 1983
Moe, C.J.

Mr. Dean Lindo S.C., for the Plaintiff.
Mrs. Lois Young Barrow, for the Defendant.

Contract - Airline ticket - Carriage of goods - Damages for loss of baggage - Quantum of damages - Applicability of Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air.

J U D G M E N T

The Plaintiff claims from the Defendant damages for the loss of certain goods which he says the Defendant contracted to carry for him from New Orleans, U.S.A. to Belize but failed to do. The Defendant denies that it contracted to carry the goods concerned and further that it is not liable for the loss of the goods concerned since they were not baggage within the terms and conditions of the contract of carriage between the parties.

On 17th July, 1981 the Plaintiff purchased a ticket in Los Angeles which ticket entitled him to a passage on Pan-Am Airlines from Los Angeles to New Orleans and then on Taca Airlines from New Orleans to Belize. At Los Angeles he handed 11 boxes containing certain goods to Pan-Am for carriage; the boxes were checked to the Belize destination. He received from Pan-Am baggage tags in respect of the 11 boxes. He travelled by a Pan-Am plane from Los Angeles to New Orleans and from New Orleans to Belize by a plane of the Defendant.

The evidence is that at New Orleans the Plaintiff went to a TACA counter and submitted the tickets he had purchased in Los Angeles. The Pan-Am baggage tags were on the ticket jacket. The Plaintiff did not tell TACA he had boxes coming from Los Angeles to go to Belize and TACA said nothing about the boxes. At Belize the Defendant received for the flight on which the Plaintiff travelled, a manifest which gave information of the passengers and baggage carried. The Plaintiff was listed as a passenger but no boxes were listed for him. It is also clear from the evidence that the manifest listed no boxes for the Plaintiff because he did not hand over to TACA any boxes at New Orleans nor did he inform TACA that there were boxes coming from Los Angeles to go to Belize. On arrival at Belize the Plaintiff did not get his boxes.

The Plaintiff took up the matter with the Defendant. In a conversation with one of the employees of the Defendant, that employee told the Plaintiff that the Defendant's office in Belize received a telex saying that the Defendant accepted they received the boxes.

The Defendant eventually handed to him eight of the boxes which he handed in at Los Angeles. He did not receive 3 boxes for which he had Pan-Am bagge tags No. 857394, 857395 and 857397.

I turn first to the question whether the Defendant contracted to carry the 3 boxes concerned. The Plaintiff's claim is that he became a passenger to be carried with 11 boxes including the 3 boxes by the Defendant in its airplane from New Orleans, U.S.A. to Belize. He clearly was a passenger carried on the Defendant's airplane. But can it be said that the Defendant agreed to carry the 3 boxes from New Orleans to Belize.

The Plaintiff urged two points. First, that at Los Angeles, Pan-Am acted on behalf of the Defendant when the boxes were checked to Belize and Pan-Am thus received to deliver to TACA. Secondly, that the Defendant's agent said that the Defendant received the boxes.

As to the first point, there was evidence from Mr. Coye, Station Manager for TACA at Belize who accepted that Pan-Am was acting on behalf of TACA when they sold the ticket to the Plaintiff, but denied that when Pan-Am received the boxes they were acting as agents for TACA. There is a further important factor. Mr. Coye gave the evidence that every ticket has a contract from point to point. That is a contract from Los Angeles to New Orleans and a contract from New Orleans to Belize. The eleven boxes handed to Pan-Am had a weight in excess of the weight allowance to the Plaintiff and as a consequence he paid Pan-Am about $400 U.S. for the carriage of the excess from Los Angeles to New Orleans. There is no evidence that TACA received payment to carry the excess. This is so because they did not receive the boxes from the Plaintiff and not in a position to charge for the carriage of the excess weight in keeping with the contract of carriage. With regard to the second point, while there was no objection to the Plaintiff's statement of what an employee of the Defendant said to him, I still have to decide whether the Defendant is bound by that statement of the employee and I am unable to decide on the evidence that the employee had authority to make the admission and was within the authority when the admission was made. In any event what does the statement mean? That TACA received the 11 boxes from the Plaintiff? Or that TACA received the 11 boxes from Pan-Am? Or that TACA received the 8 boxes which they eventually delivered to the Plaintiff and if so were they received from the Plaintiff or Pan-Am.

I hold that the Plaintiff has failed to established that TACA contracted to carry the 3 boxes concerned and his claim against the Defendant for loss fails.

I have however considered the question of the extent of liability for loss in case I am wrong in the above conclusion. It is agreed that the carriage of the box was international carriage and that the provisions of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air are applicable. The issue arose whether the boxes were carried as baggage or cargo. I find that the Plaintiff handed the boxes to Pan-Am as baggage and paid for the carriage of them as excess baggage. If TACA is to be held as also contracting to carry them, it would have to be held they contracted to carry baggage. On the basis that the boxes concerned were baggage, the limit of the Defendant's liability for loss of baggage would be governed by Article 22 (2) of the Convention which provides "In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogram unless the consignor has made at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery." From the evidence 250 francs are converted to $20.00 U.S. per kilogram. I find on the evidence that the three boxes not received by the Plaintiff weighed 210 pounds or 95-5/11 kilograms. The Defendant would therefore be liable to pay $1,909 U.S.

However in view of my findings above I enter judgment for the Defendant with costs.

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