[Federal Register Volume 74, Number 61 (Wednesday, April 1, 2009)]
[Notices]
[Pages 14837-14838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7264]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary


Providing Guidance on Airline Baggage Liability and 
Responsibilities of Code Share Partners Involving International 
Itineraries

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Notice.

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SUMMARY: The Department is publishing the following notice on Airline 
Baggage Liability and Responsibilities of Code Share Partners Involving 
International Itineraries.

FOR FURTHER INFORMATION CONTACT: Nicholas Lowry, Attorney, Office of 
Aviation Enforcement and Proceedings (C-70), 1200 New Jersey Ave., 
SE.,Washington, DC 20590, (202) 366-9349.
    This notice is intended to give guidance to U.S. and foreign air 
carriers on two tariff matters: First, tariffs relating to liability 
for lost, stolen, delayed or damaged baggage carried on international 
itineraries; and second, tariffs that appear to assign responsibility, 
in code-share service, to the operating carrier rather than the selling 
carrier (i.e., the carrier shown on the ticket).
    We have become aware of tariff provisions filed by several carriers 
that attempt, with respect to checked baggage, to exclude certain 
items, generally high-cost or fragile items such as electronics, 
cameras, jewelry or antiques, from liability for damage, delay, loss or 
theft. A typical provision found in carrier tariffs and disclosed on 
carrier Web sites states that the carrier does not assume liability for 
loss, damage, or delay of ``certain specific items, including: * * * 
antiques, documents, electronic equipment, film, jewelry, keys, 
manuscripts, medication, money, paintings, photographs * * *.''
    Such exclusions, while not prohibited in domestic contracts of 
carriage, are in contravention of Article 17 of the Montreal Convention 
(Convention),\1\ as revised on May 28, 1999. Article 17 provides that 
carriers are liable for damaged or lost baggage if the ``destruction, 
loss or damage'' occurred while the checked baggage was within the 
custody of the carrier, except to the extent that the damage ``resulted 
from the inherent defect, quality or vice of the baggage.'' \2\ Article 
19 provides that a carrier is liable for damage caused by delay in the 
carriage of baggage, except to the extent that it proves that it took 
all reasonable measures to prevent the damage or that it was impossible 
to take such measures. Although carriers may wish to have tariff terms 
that prohibit passengers from including certain items in checked 
baggage, once a carrier accepts checked baggage, whatever is contained 
in the checked baggage is protected, subject to the terms of the

[[Page 14838]]

Convention, up to the limit of 1000 SDRs (Convention, Article 22, para. 
2.).\3\ Carriers should review their filed tariffs on this matter and 
modify their tariffs and their baggage claim policies, if necessary, to 
conform to the terms of the Convention. In addition, carriers should 
ensure that their websites do not contain improper information 
regarding baggage liability exclusions applicable to international 
service.
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    \1\ Convention for the Unification of Certain Rules for 
International Carriage by Air, adopted on May 28, 1999 at Montreal.
    \2\ The quoted language might absolve a carrier from liability 
for a fragile item that is damaged during transport. It would not 
absolve the carrier from liability for the item's loss or theft.
    \3\ Article 22, para. 2 also allows the passenger to declare 
excess value for baggage, subject to payment of a supplementary fee 
if the carrier so requires. Some tariff provisions state that the 
higher declared value shall not apply to a list of valuable articles 
including ``money, jewelry, silverware, negotiable papers, 
securities, business documents, samples, paintings * * *.'' Such 
rules are also inconsistent with the Convention.
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    A second issue of concern stems from airline tariffs related to 
code-share service. As a condition for approval of international code-
share services, the Department has as a matter of policy required that 
``the carrier selling such transportation (i.e., the carrier shown on 
the ticket) accept responsibility for the entirety of the code-share 
journey for all obligations established in the contract of carriage 
with the passenger; and that the passenger liability of the operating 
carrier be unaffected.'' (Order 2008-5-19, OST-2008-0064).\4\ 
Notwithstanding this clear language, several carriers have filed tariff 
provisions that purport to apply the terms and conditions of the 
operating carrier's contract of carriage generally, or in certain areas 
such as check-in time limits, unaccompanied minors, carriage of 
animals, refusal to transport, oxygen service, irregular operations, 
denied boarding compensation, and baggage acceptance, allowance and 
liability. Others state that passengers on code-share flights ``may be 
subject'' to the operating carrier's baggage charges. A number of 
carriers have no clear tariff rule on the subject. The intent of this 
DOT code-share approval provision may not be circumvented by tariff 
provisions attempting to allocate responsibility and contract of 
carriage provisions in different ways by the carriers involved, or by 
silence on the subject. As with the exclusionary provisions cited 
above, carriers should review their tariffs and practices and make 
revisions, if necessary, to reflect the conditions imposed in the 
Department's orders approving code-share service.
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    \4\ Similar language occurs in numerous other approvals of code-
share services.
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    As a matter of policy, the Aviation Enforcement Office will 
consider the subject tariff provisions noted above involving 
exclusionary baggage provisions to be of no effect and in violation of 
the Convention and those involving code share relationships to be in 
violation of pertinent Department approvals of those code-share 
services. The tariffs and their application, and similar practices, in 
the view of the Aviation Enforcement Office, also constitute unfair or 
deceptive business practices and unfair methods of competition in 
violation of 49 U.S.C. 41712. Carriers should, therefore, review their 
tariffs and practices with respect to these two areas and, if 
necessary, immediately modify their practices to conform to the 
Convention and Department code-share conditions and, within 90 days of 
this notice, revise their respective tariffs and modify appropriately 
the statements of their baggage and code-share policies on their Web 
sites. After that date, the Aviation Enforcement Office will pursue 
enforcement action in appropriate cases. This disclosure guidance, it 
should be noted, also extends to ticket agents. Questions regarding 
this notice may be addressed to the Office of Aviation Enforcement and 
Proceedings (C-70), U.S. Department of Transportation, 1200 New Jersey 
Ave., SE., Washington, DC 20590.

     Dated: March 26, 2009.
    By:
Samuel Podberesky,
Assistant General Counsel for Aviation Enforcement and Proceedings.
    An electronic version of this document is available at http://www.regulations.gov.

 [FR Doc. E9-7264 Filed 3-31-09; 8:45 am]
BILLING CODE 4910-9X-P