Decision No. 108-C-A-2017

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Jet Airways regarding the delayed delivery, loss of items and damage to their checked baggage. The applicants seek compensation in the amount of $2,643.50, which accounts for:

• damage to their two pieces of checked baggage;
• items missing from the first piece of checked baggage;
• time and aggravation spent without the contents of the baggage, having to purchase new items and borrow other items until the baggage was returned; and,
• compensation for expenses incurred in the filing of a police report relating to the incident.

[2] The applicants also request costs for attempting to resolve the matter both with Jet Airways and through the Agency’s dispute resolution services.

[3] The Agency will address the following issues:

1. Did Jet Airways properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), which incorporates by reference the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. If Jet Airways did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to the applicants?
3. Should costs be awarded to the applicants?

[4] For the reasons set out below, the Agency finds that:

1. Jet Airways did not properly apply the terms and conditions set out in Rule 55(C)(18) of its Tariff respecting damage to the applicants’ checked baggage and items lost from it;
2. The applicants are entitled to compensation in the amount of $2,143.50 for damage to their baggage and items lost from it;
3. There is no evidence that Jet Airways failed to apply its Tariff regarding the delayed delivery of one piece of the applicants’ checked baggage; and,
4. The applicants have not demonstrated that special or exceptional circumstances exist to warrant an award of costs in their favor.

BACKGROUND

[5] On September 11, 2016, the applicants travelled from Toronto, Ontario, Canada to Tel Aviv, Israel, via Amsterdam, Kingdom of the Netherlands. The applicants travelled with Jet Airways for the Toronto-Amsterdam segment of their trip, and with El Al Israel Airlines Ltd. (El Al Israel) for the Amsterdam-Tel Aviv segment. Upon their arrival in Amsterdam, they discovered that their first piece of baggage was damaged, and that the second piece of baggage could not be located. After the second piece of baggage was located, the applicants noticed that there were items missing from the first piece of baggage.

PRELIMINARY MATTERS

Request for an oral hearing

[6] On May 17, 2017, the applicants requested that a hearing be held in public to address their application. The Agency is of the opinion that an oral hearing is not warranted as the written record contains sufficient information to allow the Agency to render a decision in the current matter. The Agency therefore dismisses the applicants’ request for an oral hearing.

Agency jurisdiction over compensation for pain and suffering

[7] The applicants seek compensation in the amount of $500 for the time and aggravation in relation to the period of time spent without the contents of their baggage, including the fact that they had to purchase new items, and borrow other items until the baggage was delivered.

[8] On March 16, 2017, the Agency’s Secretariat advised the applicants that the Agency does not have the authority to award compensation related to aggravation, pain and suffering. Therefore, this matter will not be addressed in this Decision.

THE LAW

[9] The provisions of the Montreal Convention, statutory extracts, and Tariff provisions relevant to this matter are set out in the Appendix.

DID JET AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS OF CARRIAGE SET OUT IN ITS TARIFF, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION, WITH REGARD TO LIABILITY OF CARRIERS RESPECTING BAGGAGE, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties

THE APPLICANTS' POSITION

[10] Ms. Cohen states that upon her arrival in Amsterdam on September 12, 2016, El Al Israel directed her to Gate G10 to identify the applicants’ baggage before it was loaded on El Al Israel’s aircraft. Upon retrieving the first piece of baggage, Ms. Cohen noticed that it was torn, that the baggage lock was broken, and that pieces of clothing were sticking out of it. Ms. Cohen submits that security personnel ordered a roll of masking tape and assisted her in wrapping the baggage to seal it.

[11] According to Ms. Cohen, after waiting for over an hour, the second piece of baggage did not materialize. El Al Israel personnel therefore advised her to board the El Al Israel flight and provided her with a report and forms to fill out. Ms. Cohen filed a report for the both the delayed and the damaged pieces of baggage upon her arrival in Tel Aviv.

[12] The second piece of baggage was delivered to Ms. Cohen on September 19, 2016. At that time, she noticed that the baggage lock was missing, the baggage was permanently stained, and documents inside the baggage were damaged as well. Ms. Cohen states that she noticed at that time that items were missing from the first piece of baggage.

[13] According to the applicants, the second piece of baggage was delayed because the carrier omitted to put a travel sticker on the baggage when sending it down the chute, and as such, it was erroneously directed to another airline. To support their assertions, the applicants provided a notification document that they received from El Al Israel, which indicates that the second piece of baggage “was not loaded onboard this flight”. The applicants also filed an e-mail dated September 16, 2016 from Jet Airways, wherein Jet Airways states that it was looking for the lost baggage.

[14] The applicants request compensation in the amount of $2,643.50 as follows:

Women’s clothes, towels and sheets $1,000

Damage to the first piece of baggage $600

Damage to the second piece of baggage $400

Sewing machine foot pedal $82.50

CRA mileage rates $27

Cost of police report $34

Time, aggravation, etc. $500

[15] The applicants filed photographs of the damaged baggage, and copies of Property Irregularity Reports that they completed. The applicants also filed a police report dated November 9, 2016 and a receipt for the purchase of a replacement sewing machine foot pedal. The applicants state that they are unable to find any further receipts for the items claimed. They further submit that the baggage was damaged to such an extent that they were not repairable and were disposed of before returning home.

JET AIRWAYS

[16] In Decision No. LET-C-A-38-2017 issued on July 7, 2017, the Agency provided Jet Airways until July 28, 2017 to submit its answer to the application. On July 28, 2017, Jet Airways filed its answer; however, it did not provide a copy to the applicants.

[17] On July 31, 2017, the Agency’s Secretariat advised Jet Airways that it was required, pursuant to section 8 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104, to provide the applicant with a copy of its answer, with evidence that it has met that requirement. The Agency warned that failure to do so would result in the answer not being considered filed with the Agency. Jet Airways did not provide evidence that it had filed a copy of its answer with the applicants and as such, that answer will not be accepted or considered in these proceedings.

Findings of fact

[18] Based on the applicants’ uncontested evidence and submissions, the Agency finds that both pieces of baggage were damaged, and that there were items missing from the applicants’ first piece of baggage. The Agency further finds that the second piece of baggage was delayed in its delivery to the applicants, and that the applicants were not compensated for the loss, damage or delayed delivery of their baggage.

ANALYSIS AND DETERMINATION

Did Jet Airways properly apply the terms and conditions of carriage set out in its Tariff, which incorporates by reference the Montreal Convention, with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR?

[19] The onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its Tariff.

[20] Rule 55(C)(18) of Jet Airways’ Tariff incorporates by reference the Montreal Convention.

[21] Pursuant to Article 17(2) of the Montreal Convention, a carrier is liable for damage sustained in case of loss of, or damage to, checked baggage if the event that caused the loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.

[22] Paragraph 3 of Article 36 of the Montreal Convention provides:

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

DAMAGE TO THE FIRST PIECE OF BAGGAGE AND ITEMS MISSING FROM IT

[23] The Agency has stated in past decisions (e.g. Decision No. 227-C-A-2008) that if a carrier accepts checked baggage for transportation and the checked baggage is under the care and control of the carrier, the carrier assumes liability for the baggage in the event of loss and damage, notwithstanding the fact that the carrier has not agreed to carry items and the items are contained in the checked baggage with or without the carrier’s knowledge.

[24] According to the itinerary filed by the applicants, Jet Airways transported the applicants on the Toronto-Amsterdam segment of their itinerary. The photographs provided by the applicants show that the first piece of baggage was damaged before it was loaded onto the El Al Israel aircraft. The police report confirms that items were declared missing from the first piece of baggage.

[25] Based on the above, the Agency finds that since Jet Airways had care and control of the applicants’ baggage during the Toronto-Amsterdam segment of their itinerary, it is liable for the damage to the first piece of baggage and the items missing from it.

DAMAGE TO, AND DELAYED DELIVERY OF THE SECOND PIECE OF BAGGAGE

[26] Pursuant to paragraph 3 of Article 36 of the Montreal Convention, a passenger may file a claim for damage to baggage against either the first carrier, the carrier that performed the segment during which the loss, damage or delay occurred, or the last carrier. As noted above, Jet Airways was the first carrier on the applicants’ itinerary, and as such, the applicants have a right of action against that carrier in respect to the second piece of baggage.

[27] In accordance with Article 19 of the Montreal Convention, an air carrier is liable for the damage caused by the delay in delivering a baggage, unless it demonstrates that it took all measures that could reasonably be required to avoid the damage. Further, the amount of the compensation that may be due is subject to the limits provided for in Article 22 of the Montreal Convention.

[28] The applicants filed a copy of a document provided to them by El Al Israel, which states that the second piece of baggage was not loaded onto the El Al Israel flight. Jet Airways acknowledges in a September 16, 2016 e-mail to the applicants that it was still searching for the second piece of baggage. The applicants advise that the second piece of baggage was delivered to them on September 19, 2016, and provide photographs showing that it was damaged.

[29] Based on the uncontested evidence filed by the applicants, the Agency finds that the second piece of baggage was delayed in its delivery to the applicants, and that it arrived in a damaged state. Because Jet Airways was the first carrier on the applicants’ itinerary, the Agency finds that Jet Airways is liable to the applicants for the delayed delivery and damage to the second piece of baggage.

CONCLUSION

[30] The Agency finds that the applicants have proven, on a balance of probabilities, that by not compensating them for the damage to both pieces of baggage and loss of items from the first piece of baggage, Jet Airways did not properly apply the terms and conditions set out in its Tariff with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

[31] The applicants have provided no proof of quantifiable, out-of-pocket expenses incurred as a result of the delayed delivery of the second piece of baggage. As such, the Agency finds that there is no evidence to conclude that Jet Airways failed to apply its tariff in respect of the delayed delivery of the baggage. No compensation will be ordered in this respect.

If Jet Airways did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to the applicants?

[32] Article 22(2) of the Montreal Convention limits the carrier’s liability, in case of destruction, loss of, damage to, or delay of baggage, to an amount of 1,131 Special Drawing Rights (SDR) [approximately CAN$2,007] for each passenger.

[33] The applicants did not file an estimate from a repair shop of the cost of repairing both pieces of baggage. However, they state that the baggage was damaged to such an extent that they were not repairable and were disposed of before returning home. The Agency notes that Jet Airways would normally have had the right to ask for proof of all losses; however, the Agency finds that in light of the Property Irregularity Reports and the police report filed by the applicants, and in the absence of an answer to the applicants’ application from Jet Airways, it is appropriate to award the applicants in the amount of $2,143.50 for the expenses they incurred.

Should costs be awarded to the applicants?

[34] The Agency’s practice is to award costs only in special or exceptional circumstances. The Agency has reviewed the applicants’ submissions on the issue of costs, including their August 9, 2017 comments, and finds that this case does not constitute special or exceptional circumstances. Therefore, the Agency will not order the reimbursement of costs to the applicants.

ORDER

[35] Pursuant to section 113.1 of the ATR, the Agency orders Jet Airways to compensate the applicants in the amount of $2,143.50. Jet Airways is to pay this amount to the applicants as soon as possible and no later than January 29, 2018. Jet Airways is to advise the Agency Secretariat when the compensation has been paid.

---

APPENDIX

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

Article 17 – Death and Injury of Passengers – Damage to Baggage

2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. […]

Article 19 – Delay

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.

Article 22 – Limits of Liability in Relation to Delay, Baggage and Cargo

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,131 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.

Article 36 – Successive Carriage

3. As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

Air Transportation Regulations, SOR/88-58, as amended

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.

113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it to

1. take the corrective measures that the Agency considers appropriate; and
2. pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

Jet Airways (India) Limited’s International Passenger Rules and Fares Tariff, NTA(A) No. 521

Rule 55(C)(18) provides that:

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.