The ZRp’s litigation team (Miss Idza Hajar Ahmad Idzam, Nan Muhammad Ridhwan Rosnan and pupil Mohammed Mifzal Mohd Murshid Kieron) acted for the Defendant, AirAsia Berhad, the Cargo Service Provider and the Carrier.

Brief Facts:
The Plaintiff’s claim against the Defendant is in relation to the losses and damage to cargo delivered by the Defendant through flights in 2014 and 2015. By way of quotation letters between the Plaintiff and the entity, the Plaintiff had appointed the entity for freight forwarding services.

As a result of the losses and damage to the cargo, the Plaintiff allegedly suffered losses and then commenced a suit against the Defendant as the Carrier. The Defendant filed in a striking out application on the Plaintiff’s claims on the basis that the Plaintiff’s claims are barred by limitation under the provisions of the Carriage by Air Act 1974 (CAA) and Article 29 of the Carriage by Air (Application of Provisions) Order 1975 (Order 1975).

Court’s Findings:
Having heard both parties, the Sessions’ Court Judge, Puan Hakim Ruzilawati agreed with the solicitors for the Defendant that the Plaintiff’s claims were in fact barred by limitation under the provisions of CAA and Order 1975. The Defendant referred the Judge to Section 12 of the CAA wherein by virtue of the same section, the Yang di-Pertuan Agong had brought into operation Order 1975. Paragraph 3 of Order 1975 and Part I of the Schedule to Order 1975 stipulates that this Order governs domestic carriage. 

The Defendant pointed out that Article 29 of Order 1975 is almost identical to Article 35 of the Montreal Convention 1999, and the former stipulates that:
The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carrier stopped.”

For the reasons stated above, the presiding judge concluded that it was evident that the Plaintiff’s claim was barred by limitation and allowed the Defendants’ striking out application with costs. 

Law Alert : The provisions of the Montreal Convention was adopted by Malaysia in the CAA in respect of claims against carriers for international flights in line with the Federal Court case of Wang Bao’ An & Ors v Malaysian Airlines System Bhd & Other Cases [2018] 7 CLJ 371. For claims against carriers on domestic flights, the applicable law would be theCarriage by Air Act (Application of Provisions) Order 1975, which adopted the provisions of the Montreal Convention with a few modifications. The limitation provisions contained in both CAA and Order 1975 will override the limitation provisions contained in the Limitation Act 1953 in respect of claims arising thereunder.