In Buenos Aires, on the 27th day of the month of November 2.001, the judges of Chamber I of this Court met in Agreement to issue a judgment in the proceedings mentioned in the epigraph, and in accordance with the order of the draw carried out, Judge Francisco de las Carreras said:
1. The judgment on pages 110/112 upheld the claim filed by PASCUAL POTENZA and VANESSA YANINA POTENZA against COMPAÑA NACIONAL AIR FRANCE, with the costs of the trial to be borne by the
defendant pursuant to art. 68 of the CPCC.
2. The airline appealed on pages 117, expressing grievances on pages 126/128, which were not answered by the plaintiff.
3. The appellant limits her position to the following:
A) The baggage receipt does not qualify the relationship with the airline. There is confusion between the nature of the agreement of wills by which the airline company consents to the transfer of the baggage jointly with the passenger. It was Alitalia, the airline that issued the ticket between Rome and Lamezia Terme, as it was a domestic air service, and the mere issuance of the baggage receipt to Lamezia Terme does not modify the autonomy of the contractual relationships entered into, with the obligations of the airline adjusting to those rights and obligations agreed upon in the tickets issued independently by both airlines. The baggage receipt is of an accessory nature to the main contract signed by Air France and Alitalia to cover the section between Buenos Aires and Rome and Rome and Lamezia Terme respectively. There is no basis for maintaining that it is a unitary obligation that was entered into by its client at the time when the plaintiff boarded at the Ministro Pistarini National Airport in the city of Buenos Aires.
B) The provisions of art. 30, paragraph "3" of the Warsaw Convention have not been complied with, and there is no evidence to consider that the baggage was the subject of a loss by Air France, for which reason the action had to be brought against Alitalia.
C) The autonomy of the will is not valid to establish the regulatory framework. It states that an inexcusable regime of compliance has been established, which is made evident in the non-derogable application of the subjective liability system, with reversal of the burden of proof, limited and with a
minimum public order. The parties cannot reduce legal time limits such as the protest time (art. 26 of the Warsaw Convention), and the incorporation of new causes of exoneration of liability and the implementation of a lower compensation limit are also prohibited (art. 23 of the Warsaw Convention).
D) No evidence has been provided to justify compensation of US$ 5.400 for luggage whose components have not been accredited even with a preliminary written proof, testimonial evidence or any other kind of evidence to demonstrate the magnitude of the compensation sought. There are no credit card statements, invoices, and even less a special declaration of value to support the quantification of the notebook computer reported by Dr. Potenza.
4. In the "sub lite" it is a successive transport, which is characterized by "being carried out by different means"
air carriers, one after the other with the aim of covering a specific route, which does not appear as such in any of them considered in isolation" (conf. Luis Tapia Salinas, "La señal jurídico del transporte aire", Madrid, 1953, p. 241), that is to say that "... that which is carried out in its entirety by means of aircraft, involving more than one airline and carrying out the link from one to another without solution of continuity as forming a single whole as a whole and it is irrelevant whether or not it is the same carrier that carries out the entire service (confr. Enrique Mapelli López, "Transportes Aéreas internacionales", Editorial Parainfo, Madrid, 1982, p. 140). It is therefore inferred from the above that "service... begins to be provided by a carrier who, in one or more sections of the journey, is replaced by another or other carriers of the same nature, and although it is not a requirement that they be subject to a single contract, it may arise from the conclusion of a series of agreements, which must be linked to each other and understood by the parties as being integrated into a whole. That is, judged as a single operation despite the fact that multiple airlines are involved in the full execution of the itinerary..." (cfr. Sala II, case 24.541/94 of 15.9.95, Sala III, case 3427 of 23.9.85; Videla Escalada, F. "Treaty on Aeronautical Law", first edition, Vol. III, page 321 et seq.).
This type of air transport is provided for in Article 30 of the Warsaw Convention of 1929, a regulation which, in its third section, provides that both the last air carrier and the carrier that carried out the transport in the course of which the destruction, loss, damage or delay occurred shall be jointly liable to the recipient of the goods.
5. It should be noted that, in terms of baggage, the airline has no possibility of knowing the
loss if it is not through the denunciation, complaint or claim of the owner, and that is why art. 26 of the Warsaw Convention requires the formulation of the protest, without its validity depending on sacramental forms (see Chamber II, cases 6868/92 of 22.12.92 and 20.478/96 of 4.5.99, among others).
In the case at hand, it is worth highlighting that the actors claim to have made their protest at the Air France counters and finally made the protest (PIR) at Lamezia Terme airport (see fs. 6), from which it follows that, according to what was stated by the "a quo", the protest is considered to be fulfilled when it is made to the last air carrier (see LL. 1991- E, p. 249). In our case, the last journey was made by Alitalia (Rome- Lamezia Terme), but according to the air tickets and the respective luggage checks (see fs. 4/back), Air France appears as the carrier to Lamezia Terme, thus corroborating the unity referred to in the successive transport.
It should also be noted that in this case it is irrelevant to determine whether the protest was against the delay or the lack of
delivery to Air France or Alitalia, since at the time when the plaintiffs made the claim they could not know whether the luggage was delayed or lost. It is important to note, then, that the defendant was already aware of the situation and that it was up to it to arrange all the means for the luggage to appear (conf. This Court, case 13.749/96 of 23.4.98).
6. Regarding the invocation of the Montreal Protocols of 1975 (I and II), it is important to remember that, by virtue of the way in which the parties have concluded their international air transport contract, they have been governed by the Warsaw-Hague Convention. This is evident from the airline tickets and is the basis of the defendant's position in replying to the letter on fs. 7 (cfr. fs. 8).
Although it is necessary to clarify that airlines issue the ticket and control baggage under the contracting conditions previously established by IATA, these conditions were clearly agreed upon under the Warsaw Convention of 1929 and the modifications introduced by the Hague Convention of 1955, omitting the modifications introduced by the aforementioned Protocols, despite the fact that these were in force at the time of the beginning of the trip by law 23.556 (see report on fs. 90).
Therefore, the defendant cannot now invoke the application of such protocols, when at the time of contracting it did not consider it as a matter governing the relationship. The judicial doctrine that establishes that "...no one can place themselves in contradiction with their own acts, exercising a conduct incompatible with another prior deliberate, legally relevant and fully effective..." is applicable in this regard, accepted since long ago by the Supreme Court of Justice of the Nation and recalled on numerous recent occasions (Rulings: 300:909, 305: 402; 307:469 and 307: 16029).
7. Given that the suitcase was lost during the period of the contractual relationship in which the defendant Air France was responsible for its custody, even though the contents of the suitcase have not been proven, Mr. and Mrs. Potenza are entitled to compensation, since it is unreasonable to think that the lost luggage had no value or contained the traveller's belongings that cannot be assessed for monetary value (cf. Chamber II, case 8479/92 of 24.2.95). In itself, the existence of damage is the natural consequence of the breach. In the ordinary course of things - in accordance with the analysis carried out in the "sub lite" - it is not conceivable that someone would transport a suitcase without any content or carrying inside it belongings of zero value (cf. Chamber II, cases 7034/91 of 25.11.94 and 20.478/96 of 4.5.99, among others).
8. That being so, the considerations made by the judge in the judgment on pages 110/114 concerning the reasons for the trip and the activity of the actors (especially that of Dr. Pascual Potenza) are indications that allow us to infer the kind of objects that they could have packed (cf. this Court, cases 6778 of 19.6.78, 2122 of 30.9.83, 5543 of 17.11.88, 13749/96 of 23.4.98). This may compensate for the lack of evidence that is difficult to produce, for which reason, prudence advises not to rely on the mere unilateral declaration of the person who claims to have suffered the loss (cfr. this Court, cases 4749 of 1.9.87, 727 of 16.4.90 and 13.749/96 cited). In this case, the evidence provided by the actors, tending to prove the assets actually lost, has been scarce, since there are no other elements other than their own statement and the credit card statements, which can illustrate the point.
It is clear that the person who files the claim is responsible for proving the missing item and its value (art. 377 of the Code of Civil Procedure). That is, at least providing sufficient circumstantial evidence, since it is not possible to issue a compensatory award based on mere conjecture (see Chamber II, cases 20.478/96 of 4.5.99 and 4268/97 of 16.5.00). In this regard, it should be noted that no evidence has been submitted to prove that the notebook computer - and the scientific value it had - was sent in the lost luggage.
9. In this order of ideas, it does not seem reasonable that someone who checks in a suitcase with items of subjective economic and professional importance, as is the case here for the actor (according to his statements), in addition to other goods, fails to previously report this circumstance to the airline, declare it to customs or take some kind of precaution to cover the risk of loss, since this is not ordinary luggage, but rather one whose value has increased considerably. To this we must add that, in the case of a laptop computer (an item that is considered indispensable for the actor's participation in the congress), it does not seem that a suitcase to be checked in as accompanied luggage is the most appropriate means of transporting it, without taking any precautions as to the value it represents and the care that the material requires in handling and transporting. If Dr. Potenza understood that it was an item of significant value, he should have informed the airline at the time of dispatching the luggage or at customs, in order to issue the relevant document, and thus he would have been able to prove its existence within the lost luggage.
It is worth remembering in this regard that it is public and well-known that airlines usually recognise a maximum value for the luggage they transport, so that if the person checking in a suitcase knows that it contains goods that exceed this value, without establishing any exceptional measure for this package, he is, in some way, assuming the risk claimed by the plaintiff (see my vote in the case "Almos, Alfredo and another v. American Airlines" of 1.8.2000).
Under such conditions, within the category of material damage, the claim for loss of the laptop cannot prosper.
10. As regards the value of the remaining items to be recorded as included in the lost luggage, I believe it is appropriate to adhere - to the extent that I will clarify - to the appraisal carried out by the expert appointed in the proceedings for this purpose (see pages 76/77), which is an objective element of valuation that in the sub lite should be preferred to the subjectivity of what was declared by the plaintiff.
In the cited opinion, it is important to highlight that the value of certain personal effects affected by coefficients of obsolescence and condition has been taken into account and that it has not merited challenge by the parties (see arts. 386 and 477 of the CPCC). But it is also worth highlighting that the expert report, even though it has not been challenged, does not formulate a detail of the valuation of the lost elements, but rather does so in a global manner, not being able to note the amount it establishes with respect to the computer, and the amount of compensation for the rest of the lost elements.
Likewise, note that among the goods that Dr. Potenza says were lost (point III on page 35) there are several articles used in the middle of winter and purchased in January, April, May and June of 1997, while he was traveling in September of 1997, which, as is known, was the end of the summer season in Italy (cfr. among others: pair of boots: $80; 2 winter pajamas: $85; 2 pairs of leather gloves lined with fur: $55; 4 t-shirts: $40; 3 sweaters: $150; 1 Corum leather jacket $400 and 2 scarves: $25); while in the case of Vanina Yanina there are at least six other articles -cfr. fs. 36-, (2 winter dresses: $265; 2 skirts and 1 pair of warm fabric pants: $80; Viento y Marea boots: $130; 3 sweaters: $150, 2 winter pajamas and a robe: $135 and 1 winter sports pants: $40).
Therefore, taking into account the evidentiary deficiencies mentioned, and mindful of the prudence with which the power recognized in art. 165, 3rd paragraph of the CPCC must be exercised, I consider it fair to modify the compensation for material damage to the sum of $1.500.
For all the above, I vote to modify the appealed judgment, reducing the compensation for material damage to the sum of $1.500, with the costs of this instance at 40% to be borne by the plaintiff and the remainder without costs, since there is no work by the plaintiff in this instance (art. 68, first and second paragraph, of the Procedural Code).
Judge Martín D. Farrell agrees with the preceding opinion.
In light of the grounds set forth in the Agreement transcribed above, the Court RESOLVES: to modify the appealed judgment and reduce the compensation for material damage to the sum of one thousand five hundred pesos ($1.500), with the costs of this instance at 40% to be borne by the plaintiff and the remainder without costs, since there is no work by the plaintiff in this instance (art. 68, first and second paragraph, of the Procedural Code).
Let the proceedings proceed to regulate fees. Only the undersigned intervene because the third position is vacant (art. 109 of the RJN).
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Martin D. Farrell Francisco de las Carreras
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