Kuwait Court of Cassation principle number 367

Summary: - An air carrier's liability in the carriage of checked baggage and goods. Assessment of compensation is determined by the weight of the consignment regardless of its contents. It is assessed at 250 francs per kilogram of baggage, on the basis that the franc contains 65 mg of gold of 900 thousandths fineness. It may be converted into figures in each national currency. It is deemed predetermined compensation for damage foreseeable at the time of contracting. Assessment of compensation on the basis of actual value. Its condition: establishing that the contents of the consignment exceed this predetermined assessment, by the consignor stating, upon delivery of the consignment to the carrier, the importance he attaches to its contents, specifying the type of goods and their actual value and paying the prescribed additional charges. The Warsaw Convention of 1929 for the Unification of the Rules of International Carriage by Air and its two amending Protocols at The Hague in 1955 and Guatemala in 1971, signed at Montreal in 1975, to which Kuwait acceded by Law No. 20 of 1975. Rule: It is established in the jurisprudence of this Court that the provision in the second paragraph of the Warsaw Convention of 1929 for the Unification of Certain Rules of International Carriage by Air and its two amending Protocols, the first issued at The Hague in 1955 and the second at Guatemala in 1971 and signed at Montreal in 1975, to which Kuwait acceded by Law No. 20/1975—applicable to the facts of the action—that (In the carriage of checked baggage and goods, the carrier's liability shall be limited to 250 francs per kilogram unless the consignor declares his interest in delivery upon handing the package to the carrier and pays an additional charge if required; in that event, the carrier shall be liable to pay compensation up to the amount stated unless it proves that this amount exceeds the consignor's actual interest in delivery" indicates that the general rule in assessing compensation arising from an air carrier's liability in the carriage of checked baggage and goods is to determine it on the basis of the weight of the consignment, regardless of its contents, with compensation of 250 francs per kilogram of checked baggage or goods, on the basis that the franc contains 65 mg of gold of 900 thousandths fineness, convertible into round figures in each national currency, the legislature considering that this compensation represents the damage foreseeable at the time of contracting. On the other hand, however, it considered that the value of the consignment's contents might exceed this limit based on a predetermined assessment. It therefore permitted the consignor, if he so considers, to state to the carrier upon delivery of the consignment the importance he attaches to its contents, specifying the type of goods and their actual value and paying the prescribed additional charges; compensation is then assessed on the basis of the actual value.