Article 31 of the Montreal Convention: Written Complaints for Damaged Air Cargo

Korean Supreme Court Precedent on Article 26(2) and (3) of the Warsaw Convention

Article 26(2) and (3) of the Warsaw Convention require a written complaint to be made to the air carrier in respect of damage to cargo. The leading Korean authority on these provisions is Supreme Court Decision 82Daka1372, 22 July 1986.

In Decision 82Daka1372, the Supreme Court held that if the consignee does not make a written complaint to the air carrier about the damage to the cargo within the time limit set by Article 26(2) of the Warsaw Convention, an action for damages against the air carrier must be dismissed, and that this is so even where the carrier already knew of the damage. The Supreme Court has continued to follow that decision (Supreme Court Decision 2002Da32523, 32530, 22 October 2002).

Korean Supreme Court Precedent on Article 31 of the Montreal Convention

There is as yet no Supreme Court decision on Article 31 of the Montreal Convention. However, Article 31 of the Montreal Convention adopts the wording of Article 26 of the Warsaw Convention almost unchanged, with only minor amendments. The Supreme Court’s decisions under the Warsaw Convention are therefore expected to apply equally to Article 31.

Who May Make a Complaint under Article 31 of the Montreal Convention

The person who may make a written complaint to the air carrier under Article 26 of the Warsaw Convention or Article 31(2) of the Montreal Convention, that is, the “person entitled to delivery”, is generally considered to be determined on the basis of the transport documents, namely the luggage receipt under Article 4 or the air waybill under Article 5.

In practice, however, the consignee named in the luggage receipt or air waybill usually entrusts a third party with taking delivery of the cargo.

The general tendency of foreign courts is to accept that persons who take delivery of the cargo on behalf of the consignee in this way may also make a complaint (Shah v. Western and Qantas, US District Court [W.D. Wash., 1982]; Air Zaire v. Kimo, Commercial Court, Brussels, 1976, RFDA 1977, 96; LG Frankfurt am Main, ZLW 1973, 306/308; Hanseatisches OLG, ZLW 1988, 362, 363).

It is also generally accepted that, where the consignee has appointed a third party for customs clearance or warehousing of the cargo, that third party may make a complaint (German Federal Court of Justice; TranspR 1986, 22/23; VersR 1985, 686).

Article 31 of the Montreal Convention: To Whom the Complaint Must Be Made

The Convention provides that the complaint must be made to the air carrier.

However, where several modes of transport are combined and several parties are involved in the carriage by air, the question may arise as to whom the complaint should be made. On this point, a US federal court held that a complaint made to a claim agent independent of the air carrier was not a valid complaint under the Convention (Shalt v. Western and Qantas, 17 Avi 17,101).

By contrast, a German lower court (Offenburg Regional Court) held that notice given to a subsidiary or affiliate at the destination which used the same trade name as the air carrier and formed part of a unified organisation was a valid complaint. Unlike the Warsaw Convention, Article 42 of the Montreal Convention provides that a complaint may be made to either the contracting carrier or the actual carrier.

Notations on an Inbound Cargo Inspection Report

In Korea, a ground handling agent sometimes records, at the time the cargo is released, that apparent external damage to the cargo was confirmed, in an inbound cargo inspection report or a similar document. The question is whether such a notation affects the complaint requirement under the Convention.

In Decision 82Daka1372, the Supreme Court relied on Article 26(3) of the Warsaw Convention, which provides that every complaint must be made in writing upon the document of carriage or by separate written notice dispatched within the prescribed time. On that basis, the Court held that the mere fact that a Korean Air employee had prepared and handed over a certificate confirming that the cargo was found to be in abnormal condition when it was brought into the cargo terminal did not amount to a complaint under Article 26(2) of the Warsaw Convention. Under the Warsaw Convention, therefore, it is firmly established by Supreme Court authority that a notation on an inbound cargo inspection report does not, by itself, constitute a complaint.

By contrast, Article 31 of the Montreal Convention omits the words in Article 26(3) requiring the complaint to be made upon the document of carriage, and provides only that the complaint must be made in writing. The point is therefore open to argument.

Separately, the Higher Regional Court of Munich (Oberlandesgericht München, an appellate court similar to a Korean High Court) has held that where the air carrier’s handling company recorded an ascertainment of damage on a Cargo Release Certificate, and this proved that the air carrier already knew of the damage to the cargo, a valid complaint under Article 26 of the Warsaw Convention was deemed to have been made (TranspR 1995, 118/119; ZUV 1996, 99, 101; NJW-RR 1995, 672/673).

Although that Munich decision was rendered under the Warsaw Convention, it is said that it is likely to be followed under the Montreal Convention as well (Elmar Giemulla, “Montreal Convention”, Article 31-7). It is questionable, however, whether this is appropriate, since it runs contrary to the express wording of Article 26 of the Warsaw Convention and Article 31 of the Montreal Convention.

Among the decisions of lower US courts, there is a case holding that the mere notation by an air carrier’s employee on the transport document reading “3 cartons retaped, apparent good order. Per Treasy” did not constitute a valid complaint (Lady Marlene Brassiere Corp. v. Irish International Airlines, N.Y. City Civil Court [N.Y. County, 1971], 13 Avi 17,428).

There is also a lower US court decision holding that an “Inspection and Claim Form”, similar to the Korean inbound cargo inspection report, did not constitute a valid complaint under Article 26 of the Warsaw Convention. Part of that form was to be completed by the consignee’s receiving agent, and at the bottom it stated: “The above is not a claim for legal notification of intent to file a claim” (Royal Insurance Co. v. Aerolineas Argentinas, New York Civil Court [N.Y. Co., 1987], 20 Avi 18,404).

Distinguishing Damage to Cargo from Loss or Destruction of Cargo

Article 26 of the Warsaw Convention and Article 31 of the Montreal Convention provide for complaints only in respect of damage to cargo and delay. The complaint requirement therefore does not apply to loss or destruction of cargo (for example, the death of live animals in transit).

The purpose of the complaint requirement under the Convention is to give the air carrier an opportunity to investigate the fact and the cause of the damage to the cargo. Where the cargo has been entirely lost or destroyed, that fact is self-evident, so there is no need to impose a duty on the consignee to make a complaint.

In the case of partial destruction of cargo (for example, where a number of live animals are carried and some of them die), however, the Frankfurt Regional Court in Germany (ZLW 1973, 306/308) and a Dutch court (Nieuw Rotterdam v. Thai Airways (1992)) held that Article 26 of the Warsaw Convention applies and that a complaint is required.

As to partial loss, the House of Lords, then the highest court in the United Kingdom, held that no valid complaint had been made where a passenger had given notice only of damage to the luggage and, after the time limit under the Convention had expired, gave notice of the loss of certain items from inside the luggage (Fothergill v. Monarch Airlines Ltd, 1980, 2 LLR 295).

By contrast, a Belgian decision (Air Zaire v. Kimo et Consorts, Tribunal de Commerce de Bruxelles, RFDA 1977, 96) and French decisions (Helvetia v. Alitalia, Tribunal de Commerce de Lyon [6e Ch., 1978], RFDA 1979, 89; Helvetia v. Air France, Tribunal de Commerce de Toulouse, RFDA 1981, 236) held to the effect that no complaint requirement applies in cases of partial loss.

Some German decisions likewise hold that no complaint requirement applies in cases of partial loss of cargo (ZLW 1981, 312; OLG Frankfurt am Main, TranspR 1987, 68).

In the United Kingdom, on the other hand, legislation expressly extends the complaint requirement under the Convention to partial loss of cargo (Carriage by Air Acts 1964; The Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002).