THE ESSENTIALITY OF A LARGE HAND LUGGAGE 365 may still exempt themselves from liability if they can prove that the damage was also caused by an unlawful act or omission by the passenger themselves17. The air carrier can therefore invoke to total or partial “contributory negligence,” which is the negligence of the passenger themselves, relieving the carrier of some or all liability towards the damage or loss. The relevant issue to be analysed isn’t so much about the responsibility of the airline towards passenger luggage, which is not disputed, but rather to the essential character that the “large hand baggage” assumes within the discipline of the air transport contract. By taking into consideration internal, international and community rules, it’s easy to deduce the essential character of the ancillary supply of carry-on baggage in favour of travellers in the transport industry in general, and especially in air transport18. In fact, in the cases considered within this chapter, the Authority does not doubt the importance of the transportation of carry-on baggage, but rather considers it essential to guarantee passengers a minimum set of dimensions for their luggage, so that they are of a certain utility for the traveller; which is precisely one of the points on which the Lazio Regional Administrative Court does not agree. In the cases considered here, in the opinion of the Authority, the consumer is deceived on the actual price of the ticket since the carrier has extrapolated from the basic tariff (the minimum, which must still include all the performances guaranteed by type of contract) an essential element of air transport, which is the transport of ‘large hand baggage’. The Authority declares that “the request for a supplement for the transport of large hand baggage entails the ex-ante separation from the rate of a 17 On carrier liability see, among others: A. Antonini, La responsabilità del vettore aereo per il trasporto di persone e cose nella più recente normativa: protocolli di Montreal, Varsavia-Montreal, Regolamento comunitario (The responsibility of the air carrier for the transport of people and things in the most recent legislation: Montreal, Warsaw-Montreal protocols, Community Regulation), in La nuova disciplina del trasporto aereo, atti del convegno di Ispica – Ragusa del 29 agosto – 4 settembre 1999 (The new discipline of air transport, acts of the convention of Ispica – Ragusa of 29 August – 4 September 1999), Messina, 2000; S. Vernizzi, La perdita del bagaglio: responsabilità del vettore e della società di gestione dei servizi aeroportuali (Loss of baggage: liability of the carrier and of the airport services management company), in P.G. De Marchi (ed.), I diritti del consumatore e la nuova class action (Consumer rights and the new class action), 2010, pp. 203 et seq. 18 See A. Cusmai, Le sanzioni amministrative nel traporto dei bagagli (Administrative penalties in the transport of luggage), p. 198, in A. Cagnazzo, S. Toschei & C. Pozzi (ed.), Le sanzioni in materia di trasporto marittimo, aereo, terrestre e codice della strada (Sanctions on maritime, air, land and road traffic regulations), Tourin, 2012. The two companies claim to the contrary that “the non-essential baggage is always an optional and priced item as a possible element of the transport contract”, so in PS11272 and in PS11237 of 20 February 2019, in Bulletin 8/2019 of 25 February 2019.
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