Decision No. 107-C-A-2007

March 8, 2007

File No. M4370-3/06-06648

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COMPLAINT

[1] On September 22, 2005, Jhonny Dandoy filed with the Complaint Investigations Division (hereinafter the CID) the complaint set out in the title. On October 11, 2006, Mr. Dandoy confirmed that he wished to pursue this matter formally before the Canadian Transportation Agency (hereinafter the Agency), given that the parties had been unable to reach a satisfactory agreement.

[2] On November 16, 2006, both Mr. Dandoy and Corsair were advised of the Agency's jurisdiction in this matter. The parties were also requested to advise whether they agreed to have the comments they had filed with the CID considered as pleadings before the Agency.

[3] On November 22 and December 1, 2006 respectively, Mr. Dandoy and Corsair advised that they agreed to have the comments they had filed with the CID considered as pleadings before the Agency.

ISSUE

[4] The issue to be addressed is whether Corsair has properly applied the terms and conditions relating to the limits of its liability regarding checked baggage as set out in the carrier's International Passenger Rules and Fares Tariff No. SS-1, NTA(A) No. 507 (hereinafter the Tariff) in effect at the time of the incident, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

FACTS

[5] On August 12, 2005, Mr. Dandoy travelled on Corsair Flight No. SS901 from Montréal to Paris, en route to Belgium by train. Upon his arrival in Paris on August 13, 2005, Mr. Dandoy noticed that his baggage was missing. As he had to take the train from Paris to Belgium that same day, he had to leave without his baggage. As soon as he arrived in Belgium, Mr. Dandoy contacted Corsair to inquire about his baggage and to determine whether he could purchase clothing and other replacement items. Seven days later, on August 20, 2005, his baggage was found and he went to pick it up at the Paris airport. In compensation for damages, Corsair offered Mr. Dandoy EUR400 for clothing and other replacement items, which he refused.

POSITIONS OF THE PARTIES

[6] Mr. Dandoy submits that when he contacted Corsair upon his arrival in Belgium to find out what items he could buy, he was told that it was normal procedure to buy essential items. However, no one was able to define the term "essential items".

[7] Mr. Dandoy states that on August 15, 2005, he called Corsair again to inquire about his lost baggage and to obtain details regarding the definition of essential items and the amount authorized for purchasing replacement items. Mr. Dandoy indicates that no one could provide him with an answer but he was told to buy whatever he needed.

[8] According to Mr. Dandoy, he purchased a few items on August 16, 2005, including clothing he needed to attend his great-uncle's wedding anniversary celebration. Mr. Dandoy provided supporting documentation for these purchases. On that same day, he contacted Corsair again and was told that his baggage had been found and that consequently, he could not purchase any more replacement items. He was also told that an agent from the Brussels airport would be contacting Mr. Dandoy that evening to make arrangements to pick up his baggage.

[9] Mr. Dandoy submits that two days later, on August 18, 2005, he again contacted Corsair as no one from the Brussels airport had contacted him. He was told that his baggage was still missing, but that someone would call him that evening to give him an update. Mr. Dandoy indicates that once again, no one called him. He advises that he then contacted the Brussels airport directly and was told that his baggage was not in Brussels.

[10] Mr. Dandoy submits that on August 19, 2005, he contacted Corsair one more time, with no success. He then called the Paris airport and was told that his baggage was in Lyon and that it would arrive in Paris the next day at the latest. Mr. Dandoy adds that he went to the Paris airport the following day to pick up his baggage.

[11] Mr. Dandoy points out that shortly before the end of his vacation, he learned that Corsair would reimburse him the equivalent of EUR24 per day, for a total of EUR168. Mr. Dandoy found the offer unacceptable and asked that the amount be reconsidered. Further, upon Mr. Dandoy's return to Montréal, a Corsair agent contacted him to inform him that Corsair would reimburse him a total of EUR185.

[12] Mr. Dandoy submits that on his return trip, Corsair lost his two suitcases and one of them was missing for 16 days.

[13] Corsair indicates that on February 3, 2006, it informed Mr. Dandoy that it was maintaining its offer of EUR185.49 in compensation as this reflected the amount allocated for purchases resulting from the late delivery of his baggage. Corsair also informed Mr. Dandoy that "a suit can not be considered an essential item."

[14] Corsair submits that on February 28, 2006, in response to a letter from the CID dated February 9, 2006, Corsair referred to the Montreal Convention to support its claim that the carrier's liability in case of destruction or loss of, or of damage to or delay in transporting checked baggage is limited to 1000 Special Drawing Rights (hereinafter SDR). Corsair explains that this is the maximum amount of the carrier's liability and that, as a result, it can compensate between 0 and 1000 SDR per passenger. In that same letter, Corsair reiterates that "a suit can not be considered an essential item."

[15] Corsair indicates that on June 12, 2006, it submitted a new compensation proposal to Mr. Dandoy, adding to its initial offer the reimbursement of 50 percent of the price of his shirt and suit (approximately 110 additional Euros), for a total of EUR300.

[16] Corsair adds that on September 27, 2006, in light of Mr. Dandoy's refusal of the EUR300 compensation proposal, Corsair made a voluntary, total and final offer of EUR400, which Mr. Dandoy once again refused.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[17] The Agency's jurisdiction in this matter is set out in subsection 110(4) of the ATR, which states that:

110.(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

[18] Paragraphs 113.1(a) and (b) of the ATR state that:

113.1 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariff, the Agency may
(a) direct the licensee to take corrective measures that the Agency considers appropriate; and
(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

The Tariff provisions

[19] With respect to the limits of Corsair's liability for baggage, the rule in effect at the time of the incident states that:

Rule 55(C) LIMITATION OF LIABILITY

Except as the Convention or other applicable law may otherwise require:

...

For the purpose of International Carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporation [sic] herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

Montreal Convention

[20] Article 19 and paragraph 22(2) of the Montreal Convention state that:

19. 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.

22(2).In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination.

ANALYSIS AND FINDINGS

[21] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency also reviewed Corsair's tariff which incorporates, by reference, the Montreal Convention, which has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C.,1985, c. C-26.

[22] The Agency notes that Corsair indicated that its maximum liability in cases of delayed delivery is EUR24 per day per late suitcase, up to a maximum of seven days, and that this maximum applies only to the replacement of essential items. The Agency also notes that Corsair indicated that pursuant to the Montreal Convention, a carrier can compensate a passenger between 0 and 1000 SDR.

[23] After reviewing Corsair's tariff, the Agency notes that the tariff does not support Corsair's arguments relating to the limits of its liability. In fact, Corsair's tariff refers to the provisions of the Montreal Convention, which states that the carrier is liable for damages occasioned by delay in the carriage by air of baggage, up to a maximum of 1000 SDR per passenger. The Agency notes that the Montreal Convention does not set out a maximum of EUR24 per day per late baggage or a restriction requiring a passenger to purchase only "essential" items.

[24] The Agency notes that in this case, the file shows that the damages proven by Mr. Dandoy were a direct result of the late delivery of his baggage. As Corsair failed to submit a valid reason that would relieve it of its liability pursuant to the Montreal Convention, Corsair must be held accountable for these damages pursuant to the provisions of the Convention.

[25] In light of the evidence on file, the Agency finds that the nature of the damages for which Mr. Dandoy is seeking compensation, as well as the amount claimed for the replacement items and other essential items, are reasonable and justified. Consequently, Corsair must reimburse to Mr. Dandoy the full amount of his claim.

CONCLUSION

[26] Based on the above findings, the Agency concludes that Corsair, by refusing to reimburse to Mr. Dandoy the full amount of his claim, did not apply Rule 55 of its tariff relating to the limits of its liability for lost checked baggage, in contravention of subsection 110(4) of the ATR.

[27] Consequently, pursuant to section 113.1 of the ATR, the Agency hereby directs Corsair to provide to Mr. Dandoy, within thirty (30) days from the date of this Decision, compensation in the amount of CAD$983.93, which is equivalent to EUR635.

[28] Corsair is required to advise the Agency once compensation has been provided to Mr. Dandoy.

Members

• Guy Delisle
• Mary-Jane Bennett