Decision No. 111-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding their lost piece of baggage on their travel from Nairobi, Kenya, to Toronto, Ontario, on June 22, 2019.

[2] The applicants seek between CAD 2,500 and CAD 3,500 in damages for the lost piece of baggage.

[3] The Agency will address the following issue:

Did the respondent properly apply the terms and conditions set out in the International Passenger Rules and Fares Tariff No. ET-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Ethiopian Airlines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the U.S.A./Canada and Points in Areas 2/3, NTA(A) No. 504 (Tariff), as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions set out in its Tariff. The Agency therefore dismisses the application.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[6] 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.

[7] The Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) is incorporated by reference in the Tariff. Article 17(2) of the Montreal Convention, regarding damage to checked baggage, sets out:

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.

[8] The relevant provisions of the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[9] The applicants purchased round-trip tickets from Toronto to Nairobi, via Addis Ababa, Ethiopia. They submit that when they arrived at the airport in Nairobi for their return flight on June 22, 2019, they were advised at the counter that one of the three pieces of baggage that they wanted to check was overweight. As the applicants were entitled to four pieces of baggage between the two of them, the applicants submit that they obtained a fourth piece of baggage in which they transferred some of their belongings, checked this piece of baggage, then completed their travel to Toronto.

[10] The applicants claim that this fourth piece of baggage was missing upon arrival in Toronto and that they filed a report with the respondent at the airport. The applicants allege that they were provided a lost baggage claim form that was already completed. The applicants claim that they provided the respondent with the corresponding baggage tag, which is why they were not able to produce it as part of their application.

The respondent

[11] The respondent submits that a total of three pieces of baggage, and not four, were checked by the applicants. In support of this claim, the respondent filed a passenger manifest for Flight No. ET305 from Nairobi to Addis Ababa on June 22, 2019, which is the initial flight on the applicants’ return portion of their trip. The manifest indicates that two pieces of baggage were checked under the minor child’s name and one piece of baggage was checked under Martha Rugendo’s name.

[12] The respondent disputes the applicants’ claim that the tag of the lost piece of baggage was taken by staff at the airport in Toronto, submitting that this is not standard practice and indicating that the lost baggage report provided by the applicants does not indicate any baggage tag number, only the description of the piece of baggage and an itemized list of contents.

[13] Finally, the respondent claims that the lost baggage report was created as a “courtesy” for tracing purposes but concluded that the applicants are not entitled to their claim, as there is no evidence of a lost fourth piece of baggage.

ANALYSIS AND DETERMINATIONS

[14] 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.

[15] When contradictory versions of events are presented by the parties, the Agency has previously ruled, as in Decision No. 7-C-A-2020 (Alsaadi v WestJet and Delta), that the burden of proof falls on the applicant to establish that their version is the most likely to have occurred. The Agency must determine which of the different versions is more probable, based on the preponderance of evidence.

[16] The applicants have not been able to produce a baggage tag or number to support their claim that they checked a fourth piece of baggage. The applicants maintain that the tag of their missing fourth piece of baggage was taken by staff in Toronto while creating the lost baggage claim form, but the respondent contends that it is not standard practice to do so in the event of lost baggage. The Agency notes that the applicants’ baggage claim form does not indicate a baggage tag number.

[17] In addition to the passenger manifest, which indicates that the applicants travelled with a total of three pieces of checked baggage, the respondent filed internal correspondence demonstrating that various employees investigated the applicants’ claim and concluded that the applicants only checked three pieces of baggage in Nairobi on June 22, 2019. Moreover, the parties agree that three pieces of baggage were delivered to the applicants upon arrival in Toronto.

[18] Based on the evidence, the Agency finds that the applicants have been unable to establish, on a balance of probabilities, that they checked a fourth piece of baggage in Nairobi for their flight to Toronto.

[19] Rule 55(B)(4) of the Tariff incorporates by reference the liability rules set out in the Montreal Convention, which state that a carrier is only liable for lost checked baggage if the event that caused the loss took place when the baggage was in the charge of the carrier. In this case, the applicants have not established that a fourth piece of baggage was checked and in the charge of the respondent.

[20] Given the Agency’s finding that the applicants have not established that a fourth piece of baggage was checked, it follows that the respondent did not fail to properly apply Rule 55(B)(4) of its Tariff when it declined to offer compensation for lost baggage.

CONCLUSION

[21] In light of the above, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 111-C-A-2021

International Passenger Rules and Fares Tariff No. ET-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Ethiopian Airlines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the U.S.A./Canada and Points in Areas 2/3, NTA(A) No. 504

RULE 1 – DEFINITIONS

 ….
CHECKED BAGGAGE, which is equivalent to registered luggage, means baggage of which Carrier takes sole custody and for which Carrier has issued a baggage check and baggage (claim) tag(s).

 

RULE 55 – LIABILITY OF CARRIERS

 ….
(B) LAWS AND PROVISIONS APPLICABLE

….
(4) 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.