Decision No. 161-A-2010

May 3, 2010

File No. M4110-38

INTRODUCTION

[1] The Montreal Convention, which came into force on November 4, 2003, and has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26, modernizes the liability regime governing international carriage, and consolidates the various instruments comprising the Warsaw System.

[2] On April 19, 2007, Delta Air Lines, Inc. carrying on business as Delta Air Lines, Delta, Delta Shuttle and Song (Delta) filed with the Canadian Transportation Agency (Agency) proposed tariff revisions to reflect the liability regime set out in the Warsaw System, the Montreal Convention and an inter-carrier agreement developed by the International Air Transport Association (IATA) called the Intercarrier Agreement on Passenger Liability. The revisions proposed by Delta represent tariff language developed by the Air Transport Association of America, Inc. (ATA).

[3] In Decision No. LET-A-104-2007 dated June 1, 2007, which was issued in response to Delta's proposed tariff revisions, the Agency stated that:

A preliminary review of Delta's proposed tariff filing suggests that certain provisions may be unclear, vis-à-vis those which appear in the Montreal Convention, and that the absence from the tariff filing of certain significant provisions that are set out in the Montreal Convention, results in Delta's tariff provisions lacking clarity. As such the Agency is of the preliminary opinion that the tariff provisions do not afford to passengers all of the rights that are extended by the Montreal Convention, thereby rendering such provisions unjust and unreasonable, contrary to subsection 111(1) of the ATR.

[4] The Agency stated further that:

The Agency is of the preliminary opinion that, in order to satisfy regulatory requirements, Delta's tariff provisions governing limits of liability must be worded in such a fashion as to allow consumers to easily understand all of the rights that are bestowed on them by the Montreal Convention and the Warsaw Convention, and that such provisions should accurately and fully represent that which is set out in these Conventions. With regard to the latter point, the Agency is of the preliminary opinion that, generally, it is unacceptable that a carrier's tariff refer to another document, unrelated to the tariff, that the reader must review to determine all of the terms and conditions applicable to travel, particularly when these terms and conditions relate to a matter as important as liability.

[5] Consequently, the Agency suspended the applicable tariff revisions, and provided Delta with the opportunity to show cause why the Agency should not disallow these revisions as being unreasonable, and therefore contrary to subsection 111(1) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

[6] On August 17, 2007, ATA responded to Decision No. LET-A-104-2007 on behalf of Delta.

[7] Staff of the Agency subsequently entered into discussions with ATA regarding certain tariff language that would be acceptable to the Agency.

[8] On June 25, 2009, ATA submitted proposed tariff language in an effort to address the Agency's concerns. ATA advised that the United States Department of Transportation (DOT) had informally approved such language and that, before proceeding with the formal DOT approval process, ATA wished to have the Agency's comments regarding the proposed tariff language.

[9] In response, Agency staff advised ATA that it had not yet addressed the Agency's concern that the tariff be a stand-alone document, not requiring references to other documents to establish a passenger's rights. Further discussions ensued between Agency staff and ATA.

[10] On October 7, 2009, ATA set out its concerns with the Agency's approach to this matter, and advised that it would file an application with DOT to implement ATA's tariff language.

[11] On November 9, 2009, DOT provided the Agency with a copy of ATA's application. On December 23, 2009, DOT approved the application by Order 2009-12-20, Docket OST-2005-22617.

ISSUE

[12] Is the tariff language submitted to the Agency on June 25, 2009 by ATA on behalf of Delta reasonable?

ANALYSIS

[13] The Agency notes that, in an effort to address the Agency's concerns, ATA made several revisions to its originally proposed tariff language. Among these revisions were:

• the addition of more specific language respecting limits of liability under the Warsaw Convention and the Montreal Convention
• the introduction of more specific language relating to the articles of the Warsaw Convention and the Montreal Convention which provide for limits of liability and the conditions under which these limits apply
• the addition of a provision which sets out the deadlines for filing of claims under the Warsaw Convention and the Montreal Convention

[14] The Agency recognizes that certain issues remain outstanding in the tariff language submitted to the Agency on June 25, 2009, all of which make a stand-alone tariff difficult to achieve. Specifically, these issues relate to the absence of:

• specificity respecting certain terms, limitations and defences set out in the Warsaw Convention and the Montreal Convention.
• certain limitations of liability appearing in the Warsaw Convention and the Montreal Convention
• certain terms and conditions concerning the circumstances under which limits of liability do not apply, when delayed baggage is considered lost, and services under codeshares.

[15] The Agency acknowledges that the revisions made by ATA were designed to respond to the Agency's concerns and recognizes that there are particular benefits associated with the tariff language which was submitted to the Agency on June 25, 2009. The proposed tariff language would be uniform for carriage to and from Canada and between international points, thereby avoiding any possible confusion as to the liability regime that may apply. The provisions proposed by ATA and approved by DOT also provide passengers with rights that are additional to those appearing in tariff provisions currently on file with the Agency.

[16] The Agency recognizes that attempting to resolve the remaining outstanding issues would take time and prevent these benefits from being realized immediately.

[17] Accordingly, the Agency is prepared, in the circumstances, to accept the tariff language submitted to the Agency by ATA on June 25, 2009. The Agency's acceptance is strictly limited to this language.

[18] The Agency remains committed to the principle, as articulated in Decision No. LET-A-104-2007, that a carrier's tariff should be a stand-alone document avoiding references to other documents unrelated to the tariff. Passengers should be able to fully understand their rights in law simply by reading the tariff and without reviewing specific articles of treaties to discern the terms and conditions that apply to their flight.

CONCLUSION

[19] In light of the above, the Agency:

1. Disallows the tariff filing submitted on April 19, 2007 to the Agency by the Airline Tariff Publishing Company, Agent on behalf of Delta, under Filing Advice No. 57454, International Passenger Rules and Fares Tariff No. DL-1, NTA(A) No. 304, proposing to revise Rule 55, Liability of Carriers, as being unjust and unreasonable, and therefore contrary to subsection 111(1) of the ATR.
2. Directs Delta, within 21 days from the date of this Decision, to file in the aforementioned tariff with the Agency, the tariff language submitted to the Agency by ATA on June 25, 2009 and approved by DOT by Order 2009-12-20, Docket OST-2005-22617, dated December 23, 2009. Consistent with all filed tariffs, this matter may be subject to further review on the Agency's own motion or in response to a complaint.
3. Expects ATA to advise immediately the carriers affected by Order 2009-12-20 to amend their tariffs filed with the Agency to reflect this language.

Members

• Geoffrey C. Hare
• Raymon J. Kaduck