- The Washington Times - Tuesday, April 14, 2009

Forget frequent-flyer miles — air passengers seeking rewards just got one: the right to sue international airlines for losing or destroying their luggage.

Judge Nicholas G. Garaufis of the Eastern District of New York ordered last week that a federal class-action lawsuit could go forward against British Airways PLC, also known as British Air. In the lawsuit, a dozen American passengers say the company’s baggage handling system is operated “recklessly and with knowledge that damage would probably result.”

“While providing repeated, false assurances to their travelers, British Air simultaneously routes tens of thousands of passengers’ baggage to auction houses,” the class-action lawsuit said. “British Air fails to provide any notice to its passengers concerning this practice.”

The decision means that any American flying on a foreign-owned aircraft overseas can sue and seek more than the $1,500 per bag in damages set by international treaty.

That is, the judge ruled, if the passengers can prove that the loss was “done with intent to cause damage or recklessly and with knowledge that damage would probably result” as laid out in the Montreal Convention.

According to Mark Firmani, a spokesman with law firm Hagens Berman Sobol Shapiro that is handling the case, this lawsuit is the first class-action case to go after an international airline for damages above the Montreal pact’s $1,500 per bag limit.

The treaty spells out liabilities paid to families for death or injury aboard aircraft, and also fixes the amount of money that should be paid for lost or damaged luggage. Under the treaty, passengers could only claim damages.

British Airways argued that passengers cannot prove that losing or damaging luggage was “reckless” or that the company acted “with knowledge that damage would probably result.”

The airline also argued that the term “probably” as stated in the treaty - “that damage would probably result” - must mean that more than half of all bags get damaged, a claim the judge rejected.

Judge Garaufis said the complaint against the airline “plausibly suggests that the stated injuries were the result of recklessness on the part of BA, and that BA was subjectively aware of an unjustifiable risk of injury to its passengers’ baggage.”

The victims in this case, most of whom live in Washington state, traveled on the airline between September 2005 through September 2007.

Phillip Sanford of Seattle checked his bicycle for a cycling vacation in the Swiss Alps, but his bike never arrived and his cycling trip was ruined.

“Instead, he was coldly informed that 10,000 to 12,000 lost bags were being processed at any given time, and there was little they could do,” according to the class-action lawsuit.

“Mr. Sanford spent his pre-paid cycling tour riding on uncomfortable, ill-equipped bicycles lent out of generosity by others, with what equipment he was able to purchase, and at times simply sitting in a van,” the lawsuit said.

Joan Smith traveled to Italy for a romantic vacation with her husband and was deprived of nearly all of her travel items including asthma medicine when her baggage was lost, and had to spend vacation time shopping. Her husband spent hours on the phone with BA attempting to locate their baggage.

After the two-week vacation, the Smiths returned to Naples airport and insisted on searching the lost baggage section where they found the missing suitcases but it was “damaged by water beyond repair,” the suit said.

“Neither the luggage nor any of the items inside were salvageable,” the suit said.

When the Smiths contacted customer service agents to advise them how to get compensation for their damaged baggage, the agents “treated them with utter and complete disrespect, refusing to provide employee identification, and informing them that ‘no manager or supervisor’ was ‘interested’ in meeting with them about their concerns,” the complaint said.

According to the Air Transport Users Council cited in the lawsuit, British Air loses both temporarily and permanently 23 bags per 1,000 passengers carried, more than 60 percent higher than the industry’s average rate.

Having carried more than 645 million passengers in the past two years, that translates to more than 1 million lost items of baggage.

“The defendant failed to warn travelers or provide any notice whatsoever of its inability to make good on its promise to transport personal property to its assigned destination,” the lawsuit said.

“In the complete absense of such notice, many thousands of American passengers have relied, to their detriment, upon the assurances that both they and their property would arrive at their expected destinations. British Air’s recklessness in handling its passengers’ baggage has resulted in significant amounts of damaged and/or lost property, not to mention the scores of ruined vacations and damaged or lost treasured personal items, often sold off to the highest bidder at auction,” the lawsuit said.

“In fact, multiple reports indicate premature sale at auction of scores of personal items, such as iPods, digital cameras, computer laptops, and mobile phones, each removed from luggage which is auctioned separately.

“According to auction employees, these auction sales increased throughout 2007, and often included items which had only been ‘missing’ for a few weeks,” the lawsuit said.

• Audrey Hudson can be reached at ahudson@washingtontimes.com.

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