New developments of Kuwaiti Court Perspectives Compensation as per MC99
Transport & Insurance Focus
Passant MansourAssociate,Transport & Insurance
The Montreal Convention of 1999 (MC99) standardizes the liability of international air carriers, ensuring passengers are compensated for death, injury, or baggage damage during international flights. While many countries have adopted MC99, its implementation varies. The Convention outlines the rights and responsibilities of passengers, shippers, and airlines in the event of accidents, delays, or other incidents during international flights. It applies to all international transportation of passengers, baggage, and cargo, including both paid and gratuitous aircraft.
As Kuwait is a signatory to the Montreal Convention, it has been applied in Kuwaiti courts. Recently, we have observed that Kuwaiti courts have become increasingly familiar with the application of MC99, particularly with the limitation of liability related to delays and baggage as outlined in Article 22. This increased familiarity is due to the growing number of aviation claims filed before them. Article 22 states the following:
In cases of damage caused by delay, as specified in Article 19 concerning the carriage of persons, the carrier's liability for each passenger is limited to 4,150 Special Drawing Rights (SDR).
In the carriage of baggage, the carrier's liability in cases of destruction, loss, damage, or delay is limited to 1,000 SDR for each passenger, unless the passenger has made a special declaration of interest in delivery at the destination and paid a supplementary fee. In that case, the carrier will be liable for an amount not
exceeding the declared sum, unless it can prove that the sum is greater than the passenger's actual interest in delivery at the destination.
Despite the review of liability limits by ICAO, the revised limits established under Articles 21 and 22 were increased effective December 28, 2019, to 5,346 SDR (from 4,150 SDR) for passenger delays, and 1,288 SDR (from 1,000 SDR) for baggage delays. However, until the beginning of 2025, Kuwaiti courts and experts continued to apply the previous limits of 4,150 SDR and 1,000 SDR, respectively, instead of the revised amount
Although the number of aviation cases has increased recently, there are several challenges we are facing with the court, including the following:
The Convention outlines the rights and responsibilities of passengers, shippers, and airlines in the event of accidents, delays, or other incidents during international flights. It applies to all international transportation of passengers, baggage, and cargo, including both paid and gratuitous aircraft.
In Kuwait and according to several judicial precedents that the liability of the air carrier is based on presumed fault until the air carrier can prove that they took the full measures to avoid such damage or to prove that the damage which happened was due to force majeure which means that the action which happened and affected the flight was completely out of the air carrier’s control.
As such, air carriers have two options to release from the above-mentioned liability according to Article 19 of MC which stated that” The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”.
To implement the above article practically before the Kuwait courts, the air carrier has to prove to the courts one of the below two options:
Option one: proving to the court that they took the full measures such as: providing the passenger with an alternative flight, hotel Accommodation and meals to reduce the damage which will be causing the passengers.
Option two: Proving that such action happened due to force majeure such as: technical error exposure to the airplane.
That being said, even though the air carrier provides the court with a detailed report proving that the flight experienced a technical error, the standard by which the court applies technical faults to exempt the airline from liability varies from one judge to another. Some courts view such an error as force majeure or an unforeseen event beyond the air carrier’s control.
However, other courts take a different perspective, maintaining that the air carrier remains liable. They argue that if proper maintenance had been carried out, the error would not have occurred, and therefore the airline cannot be exempt from its responsibility.
The standards applied by the court in determining whether the air carrier has taken all necessary measures to minimize any damages suffered by the passenger are quite challenging. Some courts view the alternative flight arranged by the air carrier in case of delays as an appropriate measure, while others consider it a standard obligation, as the air carrier is responsible for transporting passengers to their final destination. Consequently, the court may compensate passengers for the delay of the flight.
On the other hand, we have observed that the court's perspective changes when the air carrier arranges HOTAC (Hotel Accommodation) for the passenger due to a flight delay. This suggests that alternative flights are no longer seen as strong evidence by courts to prove that the air carrier has taken all necessary measures, which would therefore exempt it from its obligations and responsibilities.
Furthermore, in many recent cases, we have observed that the courts consistently support the passenger under all circumstances, even if the passenger fails to provide sufficient proof of any material damages. Instead, the courts assume that, as long as a delay has occurred, the passengers have suffered material damages.
The most challenging issue we have recently encountered with Kuwaiti courts is moral compensation. This means that even if the passenger (the claimant) fails to prove that they have incurred any damages, the court still awards them moral compensation, which may even exceed the liability limits—typically around 1,000 KWD per passenger. This is based on Article 231 of Civil Law No. 67 of 1980, particularly the article which states that”
Indemnity for the unlawful act shall involve the detriment, even if it is moral.
The moral detriment included, in particular, the physical or psychological harm incurred to a person due to infringement to his life, body, freedom, chastity, honour, reputation or his social or moral position or his financial considerations. The moral detriment shall also include the grief and sorrow which a person feels and loss off love and sympathy because of the death of a dead person.
Finally, we are committed to challenging the courts regarding the high amount of moral compensation, despite knowing that there is no specific limit under Kuwaiti law, as it is entirely at the court's discretion. However, we have recently observed that the courts tend to exercise this discretion in favor of the passenger, even in the absence of sufficient evidence. In some cases, we have successfully convinced the higher courts, after challenging the lower court's judgment, to reduce the amount of moral compensation.
On the other hand, the most important role/ obligation of the seller is when it comes to providing the buyer with the related documents of the shipment such as a clean Bill of Lading which might enable the buyer to sell or mortgage the shipment ( even before the actual shipment is arrived at the port of discharge) which meant that we need to highlight a very interesting point in the CIF marine contract which is that what matters in the delivery of the shipment is the actual receipt of the relevant documents – B/L and not the actual delivery of the goods itself.
As we mentioned earlier, that both contracts are being executed at the shipping port where in both contracts the seller will be liable for any damage/loss occurred to the shipment till the moment of that such goods will crossing the barrier of the vessel then, the buyer will be liable from that point. However, the CIF and FOB contracts are different in several obligation which are as below:
Firstly, In the FOB contracts, the seller will not be liable for arranging for a carrier or insurance which accordingly effect the price of the goods itself because it will not be including the cost of transportation or the freight. However, the buyer will be arranging directly from his side a carrier or/and an insurance company.
On the other side, in a CIF contract, when the seller is contracting with a carrier to ship the cargo from the shipping port to the port of discharge and arrange as well for an marine insurance for such cargo, this type of agreements are a part of the main CIF contract where if the seller will fail to comply with such obligation, the buyer will have the total right to terminate the contract. However, in the FOB contracts, essentially, the seller is not obligate for such agreements but if he will arrange for the same, we cannot consider any of these agreements as a main part of the FOB contract, but we can say that the seller represented the buyer. Hence, any breach or failure in implementing any of the agreements, the buyer will not have the right to terminate the contract.
Secondly, In terms of the importance of the documents related to shipment itself, as we mentioned earlier, any relevant document in CIF contract is very important to be delivered to the buyer before the shipment itself, particularly, the Original Bs/L in order to enable the buyer to trade or deal with the shipment even before its actual arrival date. However, in FOB contracts because such arrangement is being done by the buyer himself where for sure he will be having such documents in his hands because he is arranging for the carrier will be responsible for issuing the B/L which will be handed over to the buyer immediately,
We are always keen to request either the buyer or the seller companies to be aware when exactly the responsibility of each one starts and when it ends according to Kuwait law because by understanding the obligations of each party of the sale contract will definitely be easy to avoid any future risks.
Therefore, Al Tamimi & Co is always happy to assist you in reviewing such contracts and to make all parties fully aware of their rights and obligations to avoid any risks and financial loss in the marine trade.
For further information,please contact Passant Mansour.
Published in April 2025
