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28 August 2013
Two professional tango dancers - Luciana Ana Boccucci and José René Paillaco - filed a complaint against Lan Airlines seeking indemnity or compensation for a two-day delay in the delivery of their bags following the cancellation due to bad weather of Lan Airlines Flight 622 from Buenos Aires to Santiago de Chile, which was scheduled for June 7 2007.
According to the plaintiffs, the purpose of their trip was to give a tango performance at the Temuco Theatre in Chile. When the flight was cancelled and the plaintiffs were unable to perform in Chile on time, they instead arranged three tango performances in Buenos Aires for June 8, 9 and 10 2007. They were ultimately frustrated in this plan as well, due to a delay in the delivery of their luggage.
At the time of the flight cancellation, Lan Airlines had offered the couple seats on another flight scheduled for the night of June 8 2007. However, the plaintiffs instead decided to cancel their trip, arguing that they would be unable to perform in Chile on time and stating that they had subsequently obtained a contract for the performance in Buenos Aires.
The passengers requested that the airline deliver their checked luggage to them. However, Lan Airlines did not make the delivery until two days later, thereby preventing the plaintiffs from performing in Buenos Aires as well.
The court of first instance held against Lan Airlines and granted the plaintiffs Ps15,000 (approximately $2,700) for material and moral damages, plus interest and court fees.
The court found that the airline's responsibility arose not from cancellation of the flight due to bad weather, but from the fact that the airline had failed to provide urgent accommodation on the next available flight or an endorsement of the plaintiffs' tickets to another carrier and thus did not comply with Ministry of Economy Public Works and Services Resolution 1532/98. The court also found that Lan Airlines was negligent in the delayed delivery of luggage, causing material and moral damages to the passengers that had to be compensated.
The case was governed by the 1929 Warsaw Convention concerning the unification of certain rules relating to international carriage by air, the Hague Protocol and the Montreal Additional Protocol 2 to the convention. According to the convention, the carrier is not liable if it can prove that the company and its agents have taken all necessary measures to avoid the damage, or that it was impossible for them to take such measures. However, in the case at hand, no evidence was produced to support the airline's allegations and to help to prove that Lan Airlines had taken all necessary measures to avoid any delay in the delivery of the luggage.
The plaintiffs and the defendant both appealed the first instance decision.
In a February 2013 decision(1) the Court of Appeals increased the amount granted for material damages by the lower court (a total of Ps3,000, approximately $550), in consideration that the evidence produced in the case revealed a higher economic loss due to the cancelled performances alleged by the plaintiffs. The court finally awarded each plaintiff Ps5,800 (approximately $1,100) in material damages.
The decision in this regard has been strongly criticised. The evidence produced in the case was arguably insufficient to prove the plaintiffs' allegations and the court may have based its decision on mere presumptions. No documentation was provided by the plaintiffs to prove the alleged contract to perform at the Temuco Theatre in Chile. Furthermore, no evidentiary support was provided to prove that they had arranged three tango performances in Buenos Aires for June 8, 9 and 10 2007. In the absence of documentary evidence, the court's decision was based on witness testimonies. In addition, it has been argued that if the plaintiffs were as sought-after as they claimed, it would be reasonable to believe that they would have had extra performance clothing available in Buenos Aires, their city of residence.(2)
With regard to compensation for moral damages, the Court of Appeals noted that in cases of contractual breach, in order for a party to be indemnified, moral damages must exceed the mere inconvenience naturally inherent to any contractual breach. In this case, the court found that the lack of urgent accommodation on the next available flight, the loss of time suffered by the passengers while waiting for their luggage and the cancellation of their dance performances constituted moral damages that required indemnification. The court upheld the first instance decision and confirmed the amount of Ps6,000 for each plaintiff (approximately $1,100).
Resolution 1532/98, following Article 520 of the Civil Code, sets forth that air carriers will be responsible only for the immediate and necessary consequences of the breach of an obligation undertaken by the air carrier. The ruling also affects the principle set forth in previous cases according to which only direct and immediate consequences arising from a delay should be indemnified.
Finally, the Court of Appeals rejected the plaintiffs' request to exclude the applicable limitation of the airline's liability under the Warsaw Convention. The court found that the plaintiffs should have proved Lan Airlines' wilful misconduct, but no evidence was provided in this regard.
For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991), fax (+54 11 4311 0852) or email (email@example.com).
(2) This was also the view of Carlos María Vasallo in his comment on the case in "Responsabilidad por incumplimiento de contrato. Cancelación de vuelo y demora en restitución de equipaje", Revista de Responsabilidad Civil y Seguros, Buenos Aires, Law, 2013, Volume XV, Issue 7, ISSN: 1666-4590 (pp 52-61).
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