Facts
On July 31, 1996, UBS entrusted Finnair with a 2.3 kg package containing 1,500,000 DEM for transport to Tallinn, Estonia. The package disappeared during the return transport to Helsinki. Winterthur Schweizerische Versicherungs-Gesellschaft, which had indemnified UBS, brought a recourse action against Finnair before the Commercial Court of the Canton of Zurich.
The Commercial Court condemned Finnair to pay 824,800 CHF to Winterthur Schweizerische Versicherungs-Gesellschaft. Finnair appealed to the Federal Tribunal, requesting the annulment of the judgment and the dismissal of the claim.
Considerations
The Federal Tribunal examined Finnair's liability under the Warsaw Convention for the Unification of Certain Rules Relating to International Air Transport. The Warsaw Convention provides for objective liability of the carrier in case of loss or damage to goods during air transport.
The Federal Tribunal considered that the Warsaw Convention applies to this case, as the air transport took place between Switzerland and Estonia, and Finnair is an air carrier that concluded a transport contract with UBS. The Federal Tribunal also considered that Winterthur Schweizerische Versicherungs-Gesellschaft has the capacity to bring a claim for damages, as it indemnified UBS for the loss of the package.
The Federal Tribunal examined the conditions for the carrier's liability under Article 25 of the Warsaw Convention, which provides for unlimited liability in case of gross negligence or wilful misconduct. The Federal Tribunal considered that Finnair committed gross negligence, in particular by not taking sufficient security measures for the transport of the package, and by not informing UBS of the loss of the package.
The Federal Tribunal also examined the…