Decision No. 17-C-A-2017

SUMMARY

[1] Ajay Kumar filed an application with the Canadian Transportation Agency (Agency) against Jet Airways (India) Limited (Jet Airways) with respect to the carrier’s failure to deliver Mr. Kumar’s baggage in a timely manner and its refusal to compensate him for:

• the cost of purchasing necessities during the seven days his baggage was delayed;
• the alleged damage to his baggage; and,
• the items that were allegedly missing from his baggage.

[2] Mr. Kumar is seeking reimbursement in the amount of CAD$2,904. Specifically, Mr. Kumar is seeking compensation for the clothing and necessities he had to purchase due to the delay in the delivery of his baggage, in the amount of CAD$300; the cost of the missing items, in the amount of CAD$2,105; and the cost of replacing his broken baggage, in the amount of CAD$499.

[3] The Agency will address the following issues:

1. Did Jet Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), with regards 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 set out in its Tariff, what remedies, if any, are available to Mr. Kumar?

[4] For the reasons provided below, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rule 55(C)(18) of its Tariff; therefore, the Agency orders Jet Airways to compensate Mr. Kumar in the amount of CAD$2,015, by March 5, 2017.

BACKGROUND

[5] Mr. Kumar purchased a one-way ticket from Jet Airways for travel departing on December 5, 2015, from Winnipeg, Manitoba to Toronto, Ontario on WestJet Flight No. 522, and from Toronto to New Delhi, India on Jet Airways Flight No. 229.

THE LAW

[6] The provisions of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), statutory extracts and Tariff provision relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES

[7] Mr. Kumar states that he checked his baggage at the Winnipeg airport and that it was checked through to New Delhi, but that upon arrival in New Delhi on December 6, 2015, he did not receive his baggage. Mr. Kumar alleges that when his baggage was delivered to him on December 12, 2015, it was completely open, broken and unusable, and some items were missing. Mr. Kumar adds that he had to purchase some clothing and necessities as a result of the baggage delay.

[8] Mr. Kumar submits that Jet Airways does not want to compensate him for the missing items, the broken baggage, or his interim expenses as, according to Mr. Kumar, the carrier believes that, under the Montreal Convention, compensation is provided by weight.

[9] Mr. Kumar did not provide the Agency or Jet Airways with a copy of a Property Irregularity Report nor with an estimate from a repair shop of the cost of repairing his baggage.

[10] Jet Airways did not file an answer to the application. Therefore, Mr. Kumar’s assertions are unchallenged and his evidence is uncontradicted.

ANALYSIS AND FINDINGS

[11] In accordance with a well-established principle on which the Agency relies when considering such applications, 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.

ISSUE 1: DID JET AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WITH REGARDS TO LIABILITY OF CARRIERS RESPECTING BAGGAGE, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

[12] 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.

[13] Mr. Kumar has submitted copies of receipts for the items missing from his baggage, the clothing and necessities that he had to purchase as a result of the delay in receiving his baggage, and the baggage he purchased prior to his trip. However, Mr. Kumar did not submit a Property Irregularity Report, pictures of the damaged baggage, or an estimate from a repair shop of the cost of repairing his baggage.

[14] Nevertheless, Mr. Kumar’s evidence, and his claim that his baggage was delayed and damaged and that items went missing from his baggage during the period for which it was in the charge of Jet Airways, are all uncontested by the carrier.

[15] In addition, Jet Airways has not proven that it and its servants and agents took all measures that could reasonably be required to avoid the damage occasioned by the delay in the delivery of Mr. Kumar’s baggage, or that it was impossible for it or them to take such measures.

[16] Given that Mr. Kumar’s evidence and claims are uncontested by Jet Airways, the Agency finds that Mr. Kumar has proven, on a balance of probabilities, that Jet Airways did not properly apply the terms and conditions set out in its Tariff with regards to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

ISSUE 2: IF JET AIRWAYS DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDIES, IF ANY, ARE AVAILABLE TO MR. KUMAR?

[17] Article 22(2) of the Montreal Convention limits the liability of the carrier in the case of destruction, loss, damage or delay of baggage to 1,131 Special Drawing Rights for each passenger (the equivalent of approximately CAD$2,015). The Agency notes that this limit is less than the amount that Mr. Kumar is seeking, i.e. CAD$2,904.

[18] 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 receipts provided by Mr. Kumar, in the absence of an answer to Mr. Kumar’s application from Jet Airways, and given that the amount claimed by Mr. Kumar exceeds the limit set out in the Montreal Convention, it is appropriate in these circumstances to award Mr. Kumar the maximum amount of compensation provided for under the Montreal Convention, i.e. CAD$2,015.

ORDER

[19] In light of the above findings, the Agency orders Jet Airways to compensate Mr. Kumar in the amount of CAD$2,015 by March 5, 2017.

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 an 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 reasonable 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.

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.