A.
Unlike FedEx and UPS where the delivery date and even the delivery time is contracted, air transportation offered by legacy carriers are based on the Warsaw Convention or the Montreal Convention. The gist of the Warsaw/Montreal Convention is partly reproduced on the reverse side of the AWB. In Article 9, it says: “Carrier undertakes to complete the carriage with reasonable dispatch …….” . This means that the carrier is not under contractual obligation to complete the carriage within a fixed date or time. Needless to mention, if the shipment is unduly delayed beyond reasonable time frame, the carrier can be subjected to compensation for damages, i.e., extra expense incurred due to the delay, however, loss of expected profit or loss of value of the merchandise because of the delay and the like must not be included in the claim amount.

Under the Warsaw and subsequent Montreal Convention, the carrier is not responsible for inherent defects of the merchandise such as deterioration of fresh merchandise due to time lapse. If the delay had been caused by gross negligence or wilful misconduct on the part of the carrier, the carrier is obligated to compensate 19SDR/per kilogram of cargo. Again the claimed amount must not be the loss of value of the merchandise because of the delay or any amount of punitive nature.

For example, the claim must be confined to extra telephone expenses, extra customs clearance fees, or extra trucking costs all caused by the delay. Booking does not mean a contractual obligation to load the shipment on a particular flight. It is only for an internal operational purpose to maximize the capacity of the aircraft cargo compartments. However, if the carrier missed loading on the booked flight due to gross negligence or wilful misconduct, the carrier is responsible to pay for the extra expenses that was incurred but not the value of the merchandise. The carrier would need to prove that there was no gross negligence or willful misconduct, and that the carrier did all what was possible to avoid the delay.

On the other hand, the claimant must prove that there was gross negligence or wilful misconduct on the part of the carrier. A delay claim case is one of the most sensitive claim cases.