Liability of the air carrier

The case has involved a claim against United Airlines Inc. and the Argentine Government -Argentine Air Force- for the payment of the sum of US$ 119,013.40 plus interest and costs as both were considered liable for shortages in a shipment of gold contacts addressed to American Chemical. This case was unusual in that the shipment was stolen within the boundaries of Ezeiza International Airport while it was being transported in a van belonging to United Airlines Inc. from the storage depot operated by Edcadassa to the aircraft on which it was to be carried. During the journey the van was intercepted by a person wearing a uniform similar to those used by the Aeronautical Police and the cargo was stolen, and as a consequence the insurer compensated the policyholder by making payment of the sum claimed, becoming subrogated in relation to all rights and actions as laid down in section 80 of the Insurance Act.

The claim was based principally on the following grounds: (i) United Airlines failed to take all necessary measures to prevent the loss, such as requesting additional guards from the National Aeronautical Police , hiring of special private guards and appointing personnel specialized in security for the transfer of the cargo, considering its high value and the security and surveillance deficiencies in the area to be covered until reaching the aircraft; and (ii) the Argentine Air Force failed to fulfill its obligations, as in the area where the robbery took place the National Aeronautical Police exercises its specific functions on an exclusive and continuous basis, and is responsible for guarding and maintaining law and order; preventing, investigating and curbing the committing of crimes and misdemeanors; controlling persons, aircraft, air crew and goods being transported, in matters regarding their safety (in accordance with Law 22,521, sections 2, 4 para. 2, and 12 para. 2 and 5).

As a central argument to its defense, the airline alleged (i) that it acted with due diligence when handling the cargo, having taken all the reasonable measures to avoid the loss; (ii) that the robbery of the cargo represented a fortuitous event of force majeure and (iii) the liability for the robbery lay exclusively with the Argentine Air Force.

The Air Force denied liability, comparing the claim to those made by persons attempting to hold the Federal Police liable for the occurrence of street crimes. Furthermore, it claimed that the robbery was due to the negligent attitude of the airline, as it had not adopted all necessary and reasonable security measures, such as requesting the National Aeronautical Police for additional security for the cargo.

Both the First Instance Judge and the Court of Appeal, accepting the argument on which the claim was based, determined the several liability of the two defendants. On the matter of their individual liability, they were each required to pay compensation amounting to 50% of the total amount awarded to the plaintiff for principal and interest.

In the case of the airline, it was determined that it had not taken the precautions that the specific circumstances of persons, things, time and place demanded (sections 512 and 902 of the Civil Code). Specifically, it was considered that the airline was made aware sufficiently in advance that it was about to receive a shipment of gold for export valued in millions, and that it also knew the conditions regarding time and place for the cargo to be transferred to the aircraft (that the movement would take place at night, in a badly-lit sector of the airport where security conditions were inadequate). Faced by this higher risk, it was considered that the airline should have strengthened its usual security measures, for example, by assigning specialized security personnel for the transfer and custody of the cargo, hiring additional private security guards and requesting special National Aeronautical Police custody for the cargo, among other steps. As none of these measures were taken, the exoneration of liability laid down in section 20 para. 1 of the 1929 Warsaw Convention could not be considered to apply (“...The carrier is not liable if it proves that it and its agents have taken all necessary measures to avoid the damage or that it was impossible for it or them to take such measures....”).

In the case of the Air Force, it was ruled that it had not fulfilled its specific duties in relation to security and surveillance within the airport area, as required by Law No. 21,521 setting up the National Aeronautical Police, which it was required to exercise within a clearly demarcated area, and to that end it was equipped with its own human and economic resources. Specifically, it was noted that control, surveillance and security systems at the airport for which the Air Force was liable did not cover the area where the events took place and did not provide the necessary safeguards, and that the control over the access and movement of persons in restricted areas was inadequate. The liability of the Air Force was based on the objective concept of the lack of service, which the Supreme Court has ruled to be operative through subsidiary application of section 1112 of the Civil Code, that equates the actions and omissions of civil servants in the exercise of their functions when they perform their legal duties in an irregular manner as illicit acts.

Furthermore, on the basis of the arguments detailed above, the Court of Appeal ruled that the robbery did not, in this instance, constitute a fortuitous event or one of force majeure which would discharge the defendants’ liability, as the elements constituting such situations were not proven, namely that the event were to have been unforeseeable, insurmountable or inevitable, that is to say that the situation would not have been attributable to or be able to be blamed on the party invoking the fortuitous event (section 514 of the Civil Code).

In short, even though the loss took place in a sector outside the control of the air cargo carrier, the Federal Court considered that such a situation was in itself insufficient to exonerate it from liability, as the goods had already been received by the carrier, were in its custody at an airport and it had not taken all necessary measures to prevent the damage.