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Lost baggage is not a new problem in Indonesia. The common thing we do when we find out our baggage is missing is to file a report to the airline. If you are lucky, the baggage will be returned, even though it requires an uncertain time, as the process can be fast or slow depending on the case. However, in other cases, there is baggage that is lost and not found. If something like this happens what can we do? What we can do is ask for compensation related to our lost baggage. How is the calculation? Are there existing regulations in Indonesia that address this matter?

Indonesia has ratified the Convention for the Unification of Certain Rules for International Carriage by Air or better known as the 1999 Montreal Convention, which is an amendment to the 1929 Warsaw Convention that was established by the International Civil Association Organization (ICAO).

The ratification of the 1999 Montreal Convention has adopted into Indonesian national regulation through the Presidential Regulation of the Republic of Indonesia Number: 95 of 2016 dated 21 November 2016 concerning Ratification of the Convention for the Unification of Certain Rules for International Carriage by Air. That Presidential Regulation came into force on 23 November 2016.[1]

With the ratification of the 1999 Montreal Convention, Indonesia can apply the provisions stipulated in the 1999 Montreal Convention to its national regulations and also as a form of protection for Indonesian citizens if they become victims affected by losses on international flights.

The latest compensation value of carrier responsibility is in accordance with what has determined in the 1999 Montreal Convention are:[2]

  1. Amount of compensation for passengers in case of death or bodily injury due to aircraft accidents up to 113,100 Special Drawing Rights (SDR) in accordance with Article 21 paragraph (1);
  2. If the passenger wishes to submit a claim exceeding the 113,100 SDR limit, the principle of liability based on fault applies. The carrier must prove that there were no negligence or other wrongful act on its part in accordance with Article 21 paragraph (2);
  3. In the case of losses caused by aircraft delays, the carrier obliged to provide maximum compensation of 4,694 SDR in accordance with Article 22 paragraph (1);
  4. For the destruction, loss, damage of luggage and baggage, carrier responsibility is limited to a maximum of 1,131 SDR in accordance with Article 22 paragraph (2);
  5. For cargo shipments, in the case of destruction, loss, damage or delay of the cargo, the consigner is entitled to maximum compensation of 19 SDR per kilogram in accordance with Article 22 paragraph (3);

(1 SDR is equivalent to around 1.38 USD based on IMF data as of 2 January 2020)[3]

In Indonesia, the national law governing domestic flights is regulated in the Ministry of Transportation Regulation No. 77 of 2011 on Liability of Air Carriers (“MOTR No. 77/2011”).

In Article 2 MOTR No. 77/2011 stated that:

An air carrier will be liable for damages resulting from:

  1. Passengers who face death die, permanent disability, or injury;
  2. Lost or damaged cabin baggage;
  3. Lost, destroyed, or damaged of checked baggage;
  4. Lost, destroyed or damaged cargo;
  5. Delay;
  6. Losses suffered by the third party.

Article 2 letter c of PM 77/2011 states that “lost, destroyed, or damaged of checked baggage”. The definition of checked baggage itself contained in Law No. 1 of 2009 on Aviation (“Aviation Law”). The definition of Checked Baggage and Cabin Baggage is stated in Article 1 numbers 24 and 25 Aviation Law and stated below:

Article 1 number 24 Aviation Law

Checked Baggage is any passenger’s baggage submitted by the passenger of an aircraft to the carrier and to be transported by the same aircraft.

Article 1 number 25 Aviation Law

Cabin baggage is any good/baggage carried by the passenger and under the supervision of the passenger himself/herself.

Moving on from the definition of cabin baggage and checked baggage, we proceed to the matter of the amount of compensation that should be paid by an air carrier operating domestic carriage to the passenger who has lost, destroyed, or damaged their checked baggage. This is regulated in Article 5 of MOTR No. 77/2011, namely:

Article 5 MOTR No. 77/2011

  • The amount of compensation towards passengers who experience loss, destroyed or damaged checked baggage as mentioned in Article 2 letter c are determined as follows:
  • loss of checked baggage or contents of checked baggage or destroyed baggage compensated for IDR 200,000.00 (two hundred thousand Rupiah) per kg and a maximum IDR 4,000,000.00 (four million Rupiah) per passenger; and
  • damaged checked baggage compensated according to the type, size, and brand of checked baggage.
  • The checked baggage considered lost as referred to in paragraph (1), if not found within 14 (fourteen) calendar days from the date and time of arrival of the passenger at the destination airport.
  • Carrier is obliged to provide waiting money to passengers for checked baggage that has not been found and cannot be declared lost as referred to in paragraph (2) of IDR 200,000.00 (two hundred thousand Rupiah) per day, no later than 3 (three) calendar days.

However, according to Article 6 paragraph 1 and paragraph 2 MOTR No. 77/2011, the airline is exempt from a claim for compensation for valuable goods stored in checked baggage, except at check-in process the passenger has stated and indicated that the baggage contains valuable items or valuable goods, and the airline agrees to transport them. And if the airline approves valuable goods in the checked baggage, the airline will usually ask the passenger to insure the baggage.[4]

Apart from the things mentioned above, according to Article 176 of the Aviation Law, passengers, cabin baggage owners, checked baggage owners can file a lawsuit against the carrier in an Indonesian district court using Indonesian law.[5] This is stated again in Article 23 of MOTR No. 77/2011, namely the amount of compensation set forth in this regulation does not close the opportunity for passengers, heirs, cargo recipients, or third parties to sue the carrier to a district court within the territory of the Republic of Indonesia or through arbitration or other alternative dispute resolution in accordance with statutory provisions.

As an example of a lost baggage case, the author will take an example of a lawsuit between Mahsin and Garuda Indonesia with flight number GA 830 on the Cengkareng-Singapore-Kualanamu route.

Reported from kumparan.com, while at Changi Airport, Singapore, Mahsin lost a suitcase weighing 11 kg. Mahsin filed a lawsuit to the Consumer Dispute Settlement Agency (Badan Penyelesaian Sengketa Konsumen – BPSK) of Medan. In its decision, Medan BPSK asked Garuda Indonesia to pay compensation of IDR 38,520,000.00 minus 40 percent depreciation or IDR 23,124,000.00. Garuda Indonesia sued the Medan BPSK’s decision at the Medan District Court. However, the Medan District Court strengthens the Medan BPSK decision. Responding to the Medan District Court’s decision, Garuda submitted an appeal to the Supreme Court. The Supreme Court Panel of Judges led by Mahdi Soroinda Nasution again strengthened the previous decision.[6]

In Decision number 1317 K/Pdt.Sus-BPSK/2017, the Supreme Court Judge considered that Garuda Indonesia had been negligent in supervising passenger baggage since it was a checked baggage that was under Garuda Indonesia’s supervision. It was placed in the baggage section and became the responsibility of Garuda Indonesia during the flight. Therefore, Garuda Indonesia as an air transport company that has operated air transport carrier is responsible for the losses suffered by passengers on these flights.

The conclusion is, Indonesia is already equipped with national regulations related to the loss of baggage with domestic flights and has also ratified international conventions governing compensation in international flights. So, if you are an Indonesian citizen who lost baggage both in domestic or international flights, you are already protected by regulations regarding compensation by the airline.

Hope it is useful

FREDRIK J PINAKUNARY LAW OFFICES


[1] RATIFIKASI KONVENSI MONTREAL (MC) 1999, INDONESIA MENINGKATKAN DAYA TAWAR DI PENERBANGAN INTERNASIONAL, http://hubud.dephub.go.id/?id/news/detail/3019, 16 February 2017.

[2] Ibid.

[3] SDR Valuation, https://www.imf.org/external/np/fin/data/rms_sdrv.aspx

[4] Kompensasi Bagasi Hilang saat Penerbangan yang Harus Kamu Tahu, https://medium.com/pergi-com/kompensasi-bagasi-hilang-saat-penerbangan-yang-harus-kamu-tahu-85892614af35, 17 July 2014

[5] Ketentuan Ganti Kerugian Jika Bagasi Hilang atau Rusak di Pesawat, https://www.hukumonline.com/klinik/detail/ulasan/lt4e6e6e4b7943d/ketentuan-ganti-kerugian-jika-bagasi-hilang-atau-rusak-di-pesawat/, 14 September 2011

[6] Lalai, Garuda Indonesia Harus Ganti Rugi Bagasi Penumpang yang Hilang, https://kumparan.com/kumparannews/lalai-garuda-indonesia-harus-ganti-rugi-bagasi-penumpang-yang-hilang, 22 Januari 2018.


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