Decision No. 25-C-A-2018

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against China Southern Airlines with respect to its refusal to transport one of the applicants from Delhi, India to Vancouver, British Columbia, Canada on February 18, 2017.

[2] The applicants are seeking compensation in the amount of US$14,864.99 as per the following: US$3,404.16 for the unused portion of their original tickets from China Southern Airlines; US$600 for accommodation and transportation in Delhi; US$9,852.23 for new tickets purchased with Air India to travel from Delhi to San Francisco, California, United States of America; and, US$1,008.60 for tickets purchased to travel from San Francisco to Seattle, Washington, United States of America.

[3] The Agency will address the following issue:

Did China Southern Airlines properly apply the terms and conditions set out in Rules 25, 45 and 90 of its International Rules and Fares Tariff, NTA(A) No. 740 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If China Southern Airlines did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicants?

[4] For the reasons set out below, the Agency finds that China Southern Airlines properly applied the terms and conditions set out in Rules 25(A)(1)(b) and 45(B)(1) of its Tariff, but did not properly apply Rules 25(A)(3) and 90(E)(2)(b) of its Tariff. Therefore, the Agency orders China Southern Airlines to provide the applicant who was refused transportation with a refund as per Rule 90(D)(2)(b) of its Tariff, and provide a refund of the residual amount of the unused portion of the tickets to the applicants who chose voluntarily not to travel as per Rule 90(E)(2)(b) of its Tariff. China Southern Airlines is to advise the Agency of the amount refunded to each applicant, and how this amount was determined as soon as possible and no later than May 8, 2018.

BACKGROUND

[5] The applicants live in Seattle and drove to Vancouver where they travelled on China Southern Airlines’ Flight No. CZ330 from Vancouver to Delhi, via Guangzhou, China, on January 28, 2017.

[6] On February 17, 2017, the applicants arrived at the Indira Gandhi International Airport (Delhi Airport) in Delhi. One of the applicants was refused transportation by China Southern Airlines because he had an Indian passport and a Green Card and he had not obtained an Electronic Travel Authorization (ETA) to enter into Canada.

[7] As the applicants were unable to resolve the issue with China Southern Airlines, they spent the night in Delhi, and booked new tickets on the following day with Air India to travel from Delhi to San Francisco, in order to avoid a stop in Canada.

THE LAW

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

[9] 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:

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.

[10] Rule 25(A)(1)(b) of China Southern Airlines’ Tariff addresses the refusal to transport, and states that it will refuse to carry any passenger:

When such action is necessary to prevent violation of any applicable laws, regulations or orders of any state or country to be flown from, into or over

[11] Rule 25(A)(3) of China Southern Airlines’ Tariff, which also addresses the refusal to transport, states:

The sole recourse of any person who is refused carriage or removed en route for any reason specified above, shall be recovery of the refund value of the unused portion of his/her ticket as desired in Rule 90 (REFUNDS).

[12] Rule 45(B)(1) of China Southern Airlines’ Tariff addresses passports and visas, and states:

The passenger must present all exit, entry and other documents required by laws, regulations, orders, demands or requirements of the countries concerned. The carrier will refuse carriage to any passenger whose documents are incomplete or who has not complied with applicable laws, regulations, orders, demands or requirements. Furthermore, the carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision.

[13] Rule 90(D)(1)(e) of China Southern Airlines’ Tariff addresses involuntary refunds, and states:

As used herein, the term “involuntary refund” shall mean any refund to a passenger who is prevented from using the carriage provided for in his/her ticket due to:

e. removal or refusal to carry under conditions outlined in Rule 25, paragraph (A) (REFUSAL TO TRANSPORT–LIMITATION OF CARRIAGE).

[14] Rule 90(D)(2)(b) of China Southern Airlines’ Tariff addresses how the involuntary refund will be computed, and states:

When a portion of the trip has been made, the amount of refund will be either:

1. An amount equal to the one-way fare(s) and charges for the unused portion(s) calculated from the point of termination to the stopover/destination point or the point where travel resumed (less the same rate of discount, if any, that was applied in computing the original fare) via:

aa. the routing specified on the ticket, if the point of termination was on such routing; or

bb. the routing of any carrier operating between such points, if the point of termination was not on the routing specified on the ticket. In such case, the amount of refund will be based on the lowest fare applicable between such points.

[15] Rule 90(E)(2)(b) of China Southern Airlines’ Tariff addresses voluntary refunds, and states:

When a portion of the trip has been made, the amount of refund will be the difference between the fare paid and the fare for the transportation used less any applicable communication expenses (see Rule 60, paragraph (C) (RESERVATIONS)) and/or cancellation penalties (as outlined in the governing fare rule).

POSITIONS OF THE PARTIES

The applicants’ position

[16] The applicants, three of whom are citizens of the United States of America and one of whom is a citizen of India with a Green Card to work in the United States of America, state that when they drove from Seattle to Vancouver to get to the Vancouver Airport for their outbound flight, they were able to cross the border by land into Canada without incurring any problems.

[17] The applicants state that on February 18, 2017, they were scheduled to travel back to Vancouver from Delhi, but when they arrived at the check-in counter at the Delhi Airport, they were told by the China Southern Airlines agent that the applicant with the Indian passport and Green Card would not be able to travel on the flight to Vancouver without an ETA. The applicants claim, however, that they were led to believe that they would be able to quickly apply for the ETA and still be able to board their flight. According to the applicants, a China Southern Airlines agent informed them that they were not able to rebook or reroute them, and after waiting for three hours, they were asked to leave the airport as their flight’s boarding time had passed and the issue had not been resolved. The applicants state that consequently, they all missed the flight. The applicants also state that they called China Southern Airlines in the days leading up to the flight and that the requirement for an ETA was never mentioned.

[18] The applicants claim that while one member of the family attempted to resolve the issue with China Southern Airlines directly, the others stayed outside the Delhi Airport waiting for the local China Southern Airlines office to open. According to the applicants, the China Southern Airlines agent that they spoke to on the telephone told them that she did not have the authority to do anything with their tickets as the head office was closed until Monday (the call was placed on Saturday). The applicants submit that the agent checked again with airport staff as to whether they could help; however, the staff said that it was the applicants’ fault that they were in this situation and that China Southern Airlines would not assume any responsibility.

[19] The applicants state that they spent the night in Delhi and booked new tickets on the following day with Air India to travel from Delhi to San Francisco, thus avoiding a stop in Canada, as the ETA request had not yet been processed.

China Southern Airlines’ position

[20] China Southern Airlines claims that one of the applicants did not have the required ETA to enter into Canada, and therefore was denied boarding at the Delhi Airport. China Southern Airlines states that the applicants were advised to apply for an ETA for the affected applicant, and as a result, all the other applicants decided to seek alternate transportation to return to Seattle.

[21] China Southern Airlines states that it is not China Southern Airlines’ responsibility to inform, notify, or advise any passenger regarding the proper and valid travel documents required for travel, which would include passports and visas, and that it is the responsibility of the passenger to ensure that they have valid travel documents for all segments of their itinerary.

[22] China Southern Airlines submits that it had telephone discussions with its Delhi office agents regarding this particular case, and that the agents provided the following information: the applicants were advised at the Delhi airport that one of the applicants needed to obtain an ETA, and that once it was obtained, the Delhi office would then be able to rebook the applicants onto the next available China Southern Airlines flight to Vancouver. China Southern Airlines further submits that the applicants were holding special air fares, I class, and that as it was not China Southern Airlines’ fault that the passengers missed their flight, it could not “endorse the applicants to another carrier”. China Southern Airlines claims that its agents communicated this information to the applicants, and that there were a lot of arguments back and forth until the applicants eventually exited the airport.

[23] China Southern Airlines claims that the Delhi office was prepared to assist the applicants but they never returned to the office. China Southern Airlines submits that instead, the applicants chose other travel options.

[24] China Southern Airlines states that the carrier has the right to refuse carriage to passengers who fail to comply with applicable laws or who fail to present all the necessary travel documents, and that passengers cannot travel if they do not have all the required travel documents, such as a passport and visa. China Southern Airlines states that it firmly believes that it has not violated any part of the terms and conditions set out in its Tariff in this particular case.

Findings of fact

[25] It is undisputed by the parties that one of the applicants travelling from Delhi to Vancouver had an Indian passport and a Green Card, but did not have an ETA to enter into Canada.

[26] It is also undisputed that the other three applicants voluntarily chose not to travel after their family member was refused transportation by China Southern Airlines.

ANALYSIS AND DETERMINATIONS

[27] 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 the terms and conditions set out in its tariff.

[28] Rule 25(A)(1)(b) of the Tariff states that the airline may refuse to transport a passenger when such action is necessary to prevent violation of any applicable laws, regulations or orders of any state or country to be flown from, into or over.

[29] As one of the applicants scheduled to travel had an Indian passport and a Green Card but did not have an ETA, the Agency finds that China Southern Airlines properly applied the terms and conditions set out in its Tariff when it refused to transport the applicant.

[30] However, the Agency finds that China Southern Airlines failed to apply Rule 25(A)(3) of its Tariff, which addresses the recourse that a passenger is entitled to if they are refused transportation. The Tariff states that any person who is refused carriage shall be entitled to the refund value of the unused portion of their ticket, as per Rule 90(D)(1)(e). The Agency notes that China Southern Airlines did not provide the applicant who was refused transportation with a refund for the unused portion of the ticket.

[31] With respect to the other applicants who voluntarily chose not to travel because their family member did not have an ETA, the Agency finds that China Southern Airlines failed to apply the terms and conditions set out in Rule 90(E)(2)(b) of its Tariff, which addresses voluntary refunds, as the other three applicants were not provided with a refund for the difference between the fare paid and the fare for the transportation used less any applicable communication expenses (residual amount) of their tickets.

[32] Further to Rule 45(B)(1) of the Tariff, the Agency finds that China Southern Airlines is not liable for the following expenses incurred by the applicants: overnight accommodations in Delhi, the new tickets purchased by the applicants with Air India to travel from Delhi to San Francisco, and the tickets purchased to travel from San Francisco to Seattle, as the applicants incurred these costs due to the fact that the ETA for one of the applicants still had not yet been processed, and that they did not continue to try to resolve the issue with China Southern Airlines.

CONCLUSION

[33] The Agency finds that China Southern Airlines properly applied the terms and conditions set out in Rules 25(A)(1)(b) and 45(B)(1) of its Tariff, but did not properly apply the terms and conditions set out in Rules 25(A)(3) and 90(E)(2)(b) of its Tariff.

ORDER

[34] Pursuant to subsection 113.1 of the ATR, the Agency orders China Southern Airlines to provide the applicant who was refused transportation with a refund as per Rule 90(D)(2)(b) of its Tariff, and provide a refund of the residual amount of the unused portion of the tickets to the applicants who chose voluntarily not to travel as per Rule 90(E)(2)(b) of its Tariff. China Southern Airlines is to advise the Agency of the amount refunded to each applicant, and how this amount was determined as soon as possible and no later than May 8, 2018.