The Liability of an Airline for Damages occasioned by a Delay

With the increasing number of airlines, that are now flying into Zimbabwe, there has equally been an increase in claims for damages occasioned by delay of flights. Under Article 19 of the Warsaw Convention which has been domesticated in Zimbabwe by Carriage by Air Act [Chapter 13:04] an airline may be liable for damages occasioned by delay in the carriage by air of passengers, baggage or cargo.

It is common cause in the transportation of passengers, baggage or cargo by air, that delays are bound to occur, for different reasons, which may be beyond the control even of the airlines. 18 It must be emphasised that delay, however long, is not the same as cancellation.

A delay under Article 19 of the Warsaw Convention refers to a situation where passengers, baggage or cargo did not arrive at an agreed time at a specific destination.

G Moens & P Gillies, International Trade & Business Law: Law, Policy and Ethics (Cavendish Publishing, Sydney, 1998) 311 state that:

‘The air carrier is liable for damage caused by delay to passengers, baggage and goods under Article 19 of the Convention. The carrier is presumed to be liable once the plaintiff shows that damage arose due to delay. The plaintiff must prove delay and damage and show delay as the proximate cause of the damage. Claims have to be made against the carrier in writing within 14 days under the convention and 21 days under the Hague Protocol.’