Decision No. 110-C-A-2020

SUMMARY

[1] Ms. Morry filed an application with the Canadian Transportation Agency (Agency) against Delta regarding her delayed piece of baggage and loss of baggage in Freetown, Sierra Leone, on December 26, 2019. She seeks compensation in the amount of EUR 1,130 for loss of enjoyment, inconvenience, pain and suffering.

[2] The Agency will address the following issues:

• Did Delta properly apply the terms and conditions set out in its International Passengers Rules and Fares Tariff No. DL-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Delta Air Lines, Inc. Carrying on Business as Delta Airlines, Delta, Delta Shuttle, Delta Connection Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points Throughout the World, NTA (A) No. 459 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) with regard to the liability of carriers respecting delayed baggage and loss of baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88‑58 (ATR)? If Delta did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[3] For the reasons set out below, the Agency finds that Delta properly applied the terms and conditions set out in Rule 55 of its Tariff when it compensated Ms. Morry for the total value of her missing items in her delayed piece of baggage. Therefore, the Agency dismisses the application.

BACKGROUND

[4] Ms. Morry held a round-trip ticket to travel from Vancouver, British Columbia, to Freetown, Sierra Leone, via Seattle, Washington, followed by Amsterdam, Netherlands, and Paris, France, on December 25, 2019, and returning to Vancouver via Conakry, Guinea, and Paris, France, on January 16, 2020.

[5] Ms. Morry arrived in Freetown on December 26, 2019, and filed a missing baggage claim. Her piece of baggage arrived 48 hours later with several belongings missing. Delta compensated Ms. Morry in the amount of CAD 265 for the total value of her missing items.

PRELIMINARY MATTERS

[6] Ms. Morry seeks compensation for non-material damages, including compensation for inconvenience, pain and suffering caused as a result of her missing items.

[7] The Agency does not have the jurisdiction to order compensation for inconvenience, pain, or suffering in respect of cases which involve alleged contraventions of carriers’ tariff-related obligations.

[8] Moreover, as set out in Thibodeau v Air Canada, 2014 SCC 67, compensation for inconvenience, pain and suffering and loss of enjoyment, not related to death or bodily injury, are not recoverable under the Montreal Convention.

[9] The Agency is not bound by the European Court’s decision in Axel Walz v Clickair S.A., Case C-63/09, European Court Reports 2010 I-04239, ECLI identifier: ECLI:EU:C:2010:251, which was cited by Ms. Morry in her application. In any event, as set out in Stuckless and Legge v Air Canada, 2017 CanLII 53798 (NL PC), para 15, the European Court’s decision did not widen the scope of recovery of damages for delay; rather, it merely limited the exposure to liability of the air carrier to the amount stipulated in the Montreal Convention.

[10] Accordingly, the Agency will not consider this issue.

THE LAW AND RELEVANT TARIFF PROVISIONS

[11] Subsection 110(4) of the ATR requires that a carrier operating an international service properly apply the terms and conditions of carriage set out in its tariff.

[12] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

(a) take the corrective measures that the Agency considers appropriate; and

(b) 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.

[13] Article 17, paragraph 2 of the Montreal Convention sets out the carrier’s liability in case of destruction, loss of, or damage to checked baggage:

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. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[14] Article 19 of the Montreal Convention states:

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.

[15] Article 22, paragraph 2 of the Montreal Convention sets out the limitations of liability in relation to baggage:

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.

[16] Rule 55(B)(4) of Delta’s Tariff establishes its liability in the case of destruction or loss of, damage to, or delay of checked and unchecked baggage.

[17] The relevant provisions of Delta’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Morry

[18] Ms. Morry admits that she was compensated for the cost of the missing items, including a yoga mat (CAD 98.56); black boots (CAD 28); running shoes (CAD 16.80); a video camera (CAD 31.25); a memory card (CAD 36.50); a knee tensor (CAD 34.99); disposable razors (CAD 7.83); and a nylon bag (CAD 11.20).

[19] Ms. Morry claims that, with the exception of the yoga mat, the items that were missing were meant to be gifts. In addition to the cost of replacing the items, she seeks compensation for the cost of shipping them from Canada to Sierra Leone. In the alternative, Ms. Morry seeks compensation in the amount of USD 150 for the purchase of a similar video camera in Freetown and USD 30 for additional expenses incurred to purchase the other missing items in Freetown.

[20] Ms. Morry also seeks compensation in the amount of EUR 500 as a result of being unable to regularly practice yoga and because the yoga mat, which was missing from her piece of baggage, is a discontinued model.

Delta

[21] Delta disagrees with Ms. Morry’s claim that she is entitled to compensation for pain, suffering, inconvenience and the replacement costs of gifts, instead of the expenses she incurred to purchase the items.

[22] Delta argues that the European case raised by Ms. Morry is “wrongly decided and poorly reasoned” and “is not the law” in Canada. Delta references multiple previous cases, such as Decision No. 31-C-A-2019 (Feng v Air Canada) and Decision No. 91-C-A-2019 (Neil v WestJet), and claims that precedents in Canada from both the Agency and case law state that only actual injuries, and not the injuries from what might have been or from inconvenience, are compensable.

Findings of fact

[23] It is undisputed that Ms. Morry’s piece of baggage was delayed and items were missing. Both parties agree that Delta compensated Ms. Morry for the total value of her missing items claimed (CAD 256) but refused to compensate her for other damages, including the non-material damages claimed (EUR 1,130).

ANALYSIS AND DETERMINATIONS

[24] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[25] Delta properly applied Rule 55 of its Tariff when it compensated Ms. Morry for the full value she attributed to the missing items as per Article 17, paragraph 2, Article 19 and Article 22, paragraph 2 of the Montreal Convention.

[26] With regard to Ms. Morry’s claim that the replacement costs would be higher in Freetown, Ms. Morry did not claim expenses or provide receipts demonstrating that she replaced the gifts or camera in Freetown. Had she replaced the items during her trip, she may have been able to claim the actual replacement costs of the items. Instead, she was compensated for the original cost of the items, which is reasonable in the circumstances.

[27] There is also no evidence that Ms. Morry incurred expenses to replace the missing items and then have them shipped to Freetown.

[28] Ms. Morry clearly states that she is seeking compensation for non-material losses, specifically, inconvenience, pain and suffering. While there is no doubt that Ms. Morry’s experience was extremely frustrating, the Montreal Convention does not provide compensation for inconvenience, pain or suffering, as mentioned above.

CONCLUSION

[29] In light of the above, the Agency finds that Delta properly applied the terms and conditions set out in Rule 55 of its Tariff. Therefore, the Agency dismisses the application.

---

APPENDIX TO DECISION NO. 110-C-A-2020

International Passenger Rules and Fares Tariff No. Dl-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Delta Air Lines, Inc. Carrying on Business as Delta Airlines, Delta, Delta Shuttle, Delta Connection Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points Throughout the World, NTA (A) No. 459

Rule 55 – LIABILITY OF CARRIERS

….

B. LAWS AND PROVISIONS APPLICABLE

….
4. The Carrier is liable for damages sustained in the case of destruction or loss of, damage to, or delay of checked and unchecked baggage, as provided in the following paragraphs:
  a. Except as provided below, the liability of the Carrier is limited to 1,131 Special Drawing Rights for each passenger in the case of
      destruction, loss, damage, or delay of baggage, whether checked or unchecked, under the Warsaw Convention or the Montreal
      Convention, whichever may apply….