Decision No. 111-C-A-2016

INTRODUCTION

[1] Magnolia Flores filed an application with the Canadian Transportation Agency (Agency) against American Airlines concerning the loss of certain items from her checked baggage while travelling with American Airlines on January 9, 2015, from Lima, Peru to Vancouver, British Columbia, Canada.

[2] Ms. Flores requests full compensation for her missing items, a refund of part of her ticket due to the alleged pain and suffering she incurred, and compensation for the extremely poor experience she had with American Airlines.

ISSUES

1. Did American Airlines properly apply the terms and conditions set out in Rule 55(C) of its International Passenger Rules and Fares Tariff, NTA(A) No. 273 (Tariff), governing the liability of carriers respecting baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. If American Airlines did not properly apply Rule 55(C) of its Tariff, what remedy, if any, is available to Ms. Flores?

RELEVANT TARIFF AND STATUTORY EXTRACTS

[3] The applicable tariff provision and statutory extracts relevant to this matter are set out in the Appendix.

POSITION OF MS. FLORES

[4] Ms. Flores advises that she filed a claim with American Airlines and received compensation in an amount of $425, which she believes was in Canadian dollars. She submits that this compensation is more than CAD$250 short of her claim.

[5] Ms. Flores requests compensation for the following items:

• fruitcake and bags of sweets purchased at Wong Bajada Balta (CAD$20.00);
• shoes purchased at Saga Falabella (CAD$74.71);
• shirt purchased at Kenneth Cole (CAD$80.26);
• make-up kit (CAD$65);
• Guess romper (CAD$100);
• Marciano shirt (CAD$70);
• Kenneth Cole holdall (CAD$100);
• Lululemon top and shorts (CAD$100);
• t-shirt, oven mitts and water holders (CAD$35).

POSITION OF AMERICAN AIRLINES

[6] American Airlines acknowledges the baggage loss, and asserts that such a loss is subject to the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), which the Tariff incorporates by reference. American Airlines advises that it paid Ms. Flores USD$425.00, which represents CAD$532.74 on March 2. American Airlines advises that this amount was meant to compensate Ms. Flores for the items, the value of which she could substantiate, and a further amount as a gesture of goodwill.

[7] American Airlines submits that it is prepared to offer CAD$112.23 (converted from USD$81.86 on the date of its submission, i.e. February 4, 2016) in additional compensation to fully cover Ms. Flores’s claim, which American Airlines has calculated to be CAD$644.97 in total.

[8] With respect to Ms. Flores’s claim to be compensated for what she experienced in processing her claim, American Airlines submits that awarding such compensation is beyond the Agency’s jurisdiction.

[9] With regard to Ms. Flores’s claim for a partial refund of her ticket, American Airlines refers to Rule 90 of its Tariff, governing refunds, which provides that refunds are given only where the carriage provided for is unused or partially used, which is not the case for Ms. Flores.

REPLY OF MS. FLORES

[10] Ms. Flores states that she did not receive an explanation as to what the cheque from American Airlines covered, that she was not advised that the cheque was in US dollars, and that as the events occurred more than six months ago, her bank refuses to provide information regarding the denomination of the cheque unless she pays a fee. Ms. Flores suggests that the outstanding amount owing for her lost items is $220.00 based on what others have told her and on what American Airlines has stated to her previously. With respect to the refund of her ticket, she argues that she should receive a partial refund because the contract between herself and the carrier included transportation not just for herself but for her baggage from point “A” to point “B”, and that American Airlines failed to deliver all of her belongings.

ANALYSIS AND FINDINGS

[11] The applicant must, on a balance of probabilities, establish that the carrier has failed to apply or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff. Furthermore, the applicant has a greater burden of proof than simply presenting facts.

Request for additional compensation for the missing items

[12] Ms. Flores states that she received a cheque in the amount of $425 from American Airlines. According to American Airlines, the cheque was in US dollars and therefore represents a payment of CAD$532.74. Ms. Flores argues that she was not told that the cheque was in US dollars, and was never advised by her bank of the mistake. Ms. Flores did not provide evidence to indicate that it was processed by her bank in Canadian dollars. In light of American Airlines’ submissions and the fact that it is a US carrier, the Agency is of the opinion that the cheque was more likely than not in US dollars.

[13] According to American Airlines, the initial payment represented compensation for the items that were substantiated by receipts, and a further amount as a gesture of “goodwill”. American Airlines is now prepared to fully compensate Ms. Flores for the items that she is claiming as missing in the amounts that she has provided, and no longer appears to take issue with the documentation submitted in support of the claim. The Agency has previously stated that other forms of evidence can be acceptable, and that formal receipts are not required when proving this type of loss (308-C-A-2010">Decision No. 308-C-A-2010 – MacGillivray v. Cubana).

[14] Ms. Flores has never precisely quantified the full amount of her claim, or the amount that she claims is outstanding following American Airlines’ initial payment. In her reply, she disputes American Airlines’ assertion that the amount of $112.23 would fully compensate her. Ms. Flores’s disagreement, however, is based on what others have told her or on what American Airlines has previously stated. Ms. Flores does not otherwise dispute American Airlines’ calculations. Having reviewed the submissions, the Agency agrees with American Airlines that the total claim is in the amount of CAD$644.97, and that an additional payment of $112.23 would fully compensate Ms. Flores for her lost items based on her claim.

Request for refund of ticket

[15] With respect to Ms. Flores’s request for a partial refund of her ticket, the Agency notes that, with reference to Rule 90 of the Tariff, a refund is provided if a ticket is not used or is partially used. The Agency also notes that American Airlines provided full carriage to Ms. Flores. Ms. Flores claims that the contract of carriage included transportation of herself and her belongings, and that she should therefore receive a partial refund because some of her items were not delivered to her. In this regard, the Agency is of the opinion that compensation for the value of the missing items is the appropriate remedy.

Request for compensation for inconvenience

[16] As stated in previous decisions, and most recently in 329-C-A-2015">Decision No. 329-C-A-2015 (Ayesha Nadakavukaran v. Etihad Airways), the Agency has no jurisdiction to order payment of compensation for pain and suffering or loss of enjoyment.

CONCLUSION

[17] Based on the Agency’s agreement with American Airlines regarding the total amount of the claim, and American Airlines’ acknowledgement of the baggage loss, the Agency finds that Ms. Flores has established, on a balance of probabilities, that in not fully compensating her for the total value of the lost items, American Airlines did not properly apply the terms and conditions set out in Rule 55(C) of in its Tariff, as required by subsection 110(4) of the ATR.

[18] More specifically, the Agency finds that an additional amount of CAD$112.23, as suggested by American Airlines, which represents the difference between the amount of CAD$532.74 already provided and the total amount of the claim of CAD$644.97, should be provided to Ms. Flores.

ORDER

[19] Pursuant to paragraph 113.1(b) of the ATR, the Agency orders American Airlines to compensate Ms. Flores, by May 12, 2016, in the amount of CAD$112.23 and to advise the Agency once the compensation has been tendered to Ms. Flores.

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APPENDIX 

American Airlines International Passenger Rules and Fares Tariff NTA (A) No. 273

Rule 55 – Liability of carriers

(C)(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:

1. 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.

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.