Both the Warsaw Convention (art. 19) and the Montreal Convention (art. 19) establish the liability of the air carrier in case of delay in passenger transportation.
These conventions set limits of liability but they do not specify the type of damages (direct damage, loss of profits, moral damage) to be indemnified.
What type of damages should be indemnified? Should moral damage be included? The answer has usually been found in the legislation of those countries where the issue has been legally discussed, and particularly the concept of what damages are recoverable under said legislation in respect of contractual claims.
It is interesting to analyse how this issue is treated in Argentina, one of the Latin American countries where aviation liability matters are more frequently debated and litigated. Two recent judgments provide some potential conclusions.
In Fairsten et al v Varig S.A. (2003), the National Chamber of Appeals for Civil and Commercial Federal matters gave judgment in a claim filed by Mr. Fairsten and his spouse. They experienced delays in transportation between Buenos Aires, Argentina and Búzios, Brazil, on both the outward and return flights. This affected the vacation they had planned as well as their dinner plans with their daughters for Father’s Day on their return.
The court established that the delay in the transportation constituted a negligent breach of contract. Therefore, damages were payable, including moral damage. However, because of the nature of the contractual breach in said delay, the indemnity was related to the immediate and necessary consequences of the breach. Therefore, although moral damage should be indemnified (as it was the immediate and necessary consequence of the delay), it only involved "loss of time — which is the loss of unrepeatable life, and even, detriment to personal freedom" arising from the aircraft’s delay in departure. However, no indemnity was granted to the couple for alleged "frustration" of the first day of their trip (since it was still possible for them to have their holidays despite the late arrival). Nor were they indemnified for not being able to celebrate Father’s day, damage which was classified as "extrinsic". The total indemnity amounted to $3,200 Argentinean pesos (US$1,030 app.), for moral damage.
In May 2005, in Mansilla et al v Iberia Líneas Aéreas de España S.A., the same court upheld the idea that the loss of time suffered by passengers constitutes moral damage which must be indemnified when it is the immediate and necessary consequence of breach of an obligation undertaken by the air carrier. The difference between this ruling and the previous one is that, since moral damage is an exception in contractual matters, in order to be indemnified, it must exceed the mere inconvenience naturally inherent to any contractual breach. The indemnity in this case was $9,000 Argentinean pesos (US$2,900 app.) in total for two passengers.
We can conclude then that Argentinean jurisprudence treats delays in the transportation of passengers as a contractual breach and, according to its internal provisions, only the direct and immediate consequences arising from delay should be indemnified. Among such consequences, there is moral damage but only arising from loss of time suffered by the passenger. This is the reason why compensation awarded by the courts has been limited to date.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.