In Buenos Aires, on the 26th day of June 2.001, the judges of Chamber I of this Court met in Agreement to issue a judgment in the proceedings mentioned in the section, and in accordance with the order of the draw carried out, Judge Francisco de las Carreras said:
I. The judgment on pages 396/399 upheld the claim filed by MARIA C. SMELANSKI against DINAR LINEAS AEREAS SA, sentencing the latter to pay the plaintiff the sum of five
One thousand pesos ($5.000), plus interest calculated at the rate charged by the Banco de la Nación Argentina in its thirty-day discount operations, from the notification of the transfer of the claim and until payment, as long as it does not exceed the legal limit provided for in the Warsaw-Hague Convention of 1929 (in which case the corresponding equivalent will be paid) and the costs of the trial in accordance with art. 68 of the CPCC.
The "a quo" based its decision on the following:
A) Due to the accompanying documentation, it can be considered as proven that the tour to the Island of Aruba was contracted, with the flight to that destination being the responsibility of the defendant Dinar Líneas Aéreas SA, and it is also recognized that the luggage of the claimant and her daughter was not delivered to the passengers at their destination, but rather appeared at another destination (Margarita Island) and only when the claimant and her daughter returned to Buenos Aires, it was returned to them by the carrier.
B) Mrs. Smelanski had to purchase clothing, hygiene items and cosmetics for herself and her daughter to replace the luggage they did not have, in addition to the anxiety and inconvenience caused by the carrier's failure to comply, which gives rise to the obligation to compensate for moral damages.
C) There is little evidence provided regarding the expenses incurred, a circumstance that extends to the fact that the amount of cash that the plaintiff was allegedly given by her eldest daughter, who had come from New York to join her, in the form of a loan, is unknown.
D) The "loss of the end of the vacation", which the plaintiff focuses on the lack of the oncological remedy that she had to continue taking on her vacation trip, the "a quo" considers that it was not a remedy of common use such as a painkiller or a digestive. In effect, it was an oncological medicine that allowed the claimant to continue during the trip with the treatment that had been prescribed to her, so, in view of this, a minimum precaution - given the objectivity of the circumstance - imposed that this particular medicine be carried in the bag or hand luggage that the passenger
takes with him when boarding the plane, which means that this part of the request cannot be accepted.
II. The plaintiff appealed against this ruling at fs. 404, expressing grievances at fs. 415/416, which were answered by the defendant at fs. 420/421 and the defendant at fs. 402, who expressed
grievances on pages 417/418, which were answered by the plaintiff on pages 422/423.
III. The plaintiff limits her complaint to:
A) The damage caused by the inconvenience and distress suffered by her as a result of not being able to have the oncological medicines she had brought with her to continue her treatment at her destination. Although it is true that it was her decision, the choice of the place where she would transport the medicines does not exempt the carrier from liability. Even though her client could have carried the medicines or drugs in her hand luggage, the decision to keep them in the suitcases does not exempt the defendant from diligent and responsible conduct in any circumstance and
the result of which is always the proper arrival at the destination of the passenger and their luggage.
B) The limitation imposed by the judgment on the claimed items, as it subjects them to the limit
indemnification imposed by the Warsaw Convention. The present case would not be included within the limitations of liability established by that convention, and only the general rules on the carrier's liability would apply.
IV. The defendant also complains about the amount of compensation that has been set for damage that the plaintiff did not even have the will to prove in these proceedings. It claims that the plaintiff did not demonstrate the nature and content of her luggage, nor did she establish the weight and size of the two affected packages, an essential element for defining the amount of the limit of liability applicable in this case.
V. There can be no doubt that the plaintiff and Dinar Líneas Aéreas SA entered into an international transport contract (see the tickets and the facts of the dispute) which included the transfer of the luggage to the island of Aruba, which was delivered to the airline for such purposes. It is therefore clear that, regardless of where the suitcases disappeared (they were destined for Margarita Island and then returned to Buenos Aires), the Warsaw-Hague Convention (see Art. 1) and not the principles of our domestic law apply in the case at hand. Consequently, with the precision that I will indicate when dealing with the remaining grievances, the limit of liability invoked applies in this case.
VI. I consider that there is no room for doubt, as stated by the court a quo, that compensation should be awarded, since it seems unquestionable that suddenly finding oneself in a foreign country - for only a week and with the intention of enjoying a holiday - without any of the items that make up the usual luggage of a traveller, entails an emotional disturbance of a not inconsiderable nature, especially if one considers that the fact of not receiving the luggage at destination caused the plaintiff, her daughter and even her other daughter who was in New York, an obvious investment of money destined to the acquisition of the essential items for their clothing, footwear and hygiene.
Under these conditions, it is noted that in a certain sense, the international trip was clearly disrupted, both by the loss of time required to replace the missing effects and the lower imposition of foreign currency for other purposes, and by the fact that the plaintiff was forced to carry out various procedures to obtain compensation. And both of these extremes mean, in themselves, the
non-availability of all one's own hours to make personal freedom the enjoyment to which every human being has the right to do as he pleases. Now, although the evidence provided in this regard is scarce,
Regarding the expenses incurred, including the loan taken out by the plaintiff's daughter who lives in New York, according to the documentation provided which includes the credit card summary (found on page 7), I consider, as established by the "a quo", that the damage was demonstrated, and therefore the sum established by the judge in relation to the compensation for material damage must be confirmed.
VII. Now, with respect to the oncological medication that the plaintiff had to take during her stay in Aruba in order to continue with her treatment (see diagnosis on page 24 and record on page 29 -both reserved in a large envelope-, testimonial statement by Dr. Guillermo Luis Lenzo on pages 189/190, which details the treatment given to the patient affected by breast cancer, medical expertise on pages 208/210 and the official response on pages 228/232), it is worth noting that, in the case of a breach of a baggage transport contract, there are hypotheses in which the spiritual injury arises from the same circumstances in which said breach is configured (conf. ED 141-566, among others), that is to say that it is evident that during her stay on the island the plaintiff was affected by the concern of not being able to continue with the diagnosed treatment and the fact that she did not take the relevant remedies. in hand luggage or cabin baggage does not exempt the carrier from its liability for failure to deliver the luggage to its true destination.
It is therefore a matter of examining whether this delay in the delivery of the luggage, and specifically in the case of oncological medication, had, in the situation at hand, a damaging impact that could give rise to an obligation to compensate in the patrimonial sphere.
For my part, I consider that with regard to compensation for moral damage in cases of loss of luggage or delay in its delivery, the jurisprudence - as in so many other matters - has not been uniform. What can be affirmed, in general terms, is that with the predominance of the compensatory thesis of that compensation (supported by Chamber II, since case 4412 of 1.4.77), the courts have adopted a more flexible criterion and inclined to recognize the existence of the damage, whether in the order of the
contractual liability (art. 522 of the Civil Code) or within the scope of Aquilian liability (art. 1078 of the Civil Code).
Reality is so rich in nuances that prudence teaches us to distinguish the peculiarities of each case and
resolve, of course, following certain general guidelines, case by case, according to the features that distinguish them (conf. Sala II, case 8460/95 of 12.9.96 and its citations), since it is not the same to experience the lack of a suitcase with essential items for a vacation stay.
What is true in all cases is that what is compensable is moral damage and not any annoyance or inconvenience that naturally accompanies both certain unlawful acts and certain breaches of contract. For this reason, it has been stated in this Court on repeated occasions that moral damage is not a title to make any anxiety or disturbance of the mind compensable.
since its recognition is not intended to increase the compensation for material damages, but to mitigate the pain or injury to the principles most closely linked to the dignity of the physical person.
and the fullness of the human being.
In the "sub examen", the damage does not consist of bad temper or lack of peace, the damage is given by the temporary loss of the chance to enjoy life in freedom. The defendant's breach of contract, therefore, unlawfully forces me not to enjoy the things I want and to temporarily replace them with others (conf. case 8560/95 cited).
These varied and accumulated breaches - all in a single contract - produce emotional disorders, which in my opinion are perfectly protectable, since they result from repeated and excessive defective conduct on the part of the defendant - which goes beyond all reasonable standards - in fulfilling its obligations in the transportation of the person and the goods, as well as in the particular way in which the plaintiff spends her time (see art. 522 of the Civil Code, this Chamber, my vote in case 2610/97 of 4.3.99 and my dissent in "Toporovsky" of 7.3.96).
It does not matter that this situation did not exceed a week, because in any case it is due to the negligent actions of another that this period of the plaintiff's life was deprived of enrichment and
correlatively constrained to be wasted.
I believe that the deprivation of medication is a certain and not conjectural damage that undoubtedly occurs outside the scope of economic or patrimonial damages.
It is pure moral damage and certainly compensable (art. 522 of the Civil Code).
It is not easy to translate a spiritual injury into pesos. In many cases, this Court has pointed out the obvious difficulties that exist in measuring non-patrimonial damage in money. However, as this is the means chosen by the positive legal system (articles 522 and 1078 of the Civil Code) and is not available to them,
Since judges are allowed to abstain from sentencing (art. 15 of the Code), I am inclined to reduce the compensation for moral grievance or moral damage to the sum of one thousand pesos ($1.000).
VIII. The limit of liability in Article 22 of the International Convention in question is designed to cover the loss of material effects and does not extend to other compensable damages such as moral damages. Therefore, the amount recognized for this concept falls outside the limit provided for in the aforementioned international text, which must be subject to strict interpretation.
IX. For all the above, I vote to confirm the judgment in the main part that it decides and to modify it with respect to compensation for moral damages, which is reduced to the sum of one thousand pesos ($1.000), with costs.
Judge Martín D. Farrell says: As in Case No. 1364/99, decided on today's date, I find configured here - due to the circumstances of the case - an exceptional assumption that authorizes
to compensate for moral damages in a transport contract. For this reason, and also considering the other arguments set out in the previous vote, I agree with it.
In light of the grounds set forth in the Agreement transcribed above, the Court RESOLVES:
to confirm the judgment in the main part and modify it with respect to compensation for moral damages, which is reduced to the sum of one thousand pesos ($1.000), with costs. Only the undersigned intervene.
the third position being vacant (art. 109 of the RJN). The proceedings shall proceed to regulate fees.
Register, notify and return.
Martin D. Farrell Francisco de las Carreras
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