Decision No. 29-C-A-2005

January 26, 2005

File No. M4370/A896/01-2

---

COMPLAINT

[1] On July 3, 2001, Charanjit K. Gill filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title. However, due to the regulatory nature of the complaint, it was referred to the Canadian Transportation Agency (hereinafter the Agency).

[2] In its Decision No. LET-C-A-295-2002 dated October 8, 2002, the Agency requested Mrs. Gill to advise whether she wished to pursue the matter formally before the Agency and, if so, whether she agreed to have the comments she filed with the ATCC considered as pleadings before the Agency. Aeroflot - Russian Airlines (hereinafter Aeroflot) was requested to confirm with the Agency whether the carrier agreed to have its comments filed with the ATCC considered as pleadings before the Agency.

[3] On December 11, 2002, Mrs. Gill advised that she wished to pursue the matter formally before the Agency and agreed to have the comments she had filed with the ATCC considered as pleadings before the Agency.

[4] On December 12, 2002, a copy of Mrs. Gill's letter was sent to Aeroflot and the carrier was asked to confirm, within ten (10) days, whether it agreed to have the comments it had filed with the ATCC considered as pleadings before the Agency. Aeroflot failed to respond to that request. However, on December 20, 2002, Aeroflot filed a copy of a release dated October 19, 2002, signed by Mrs. Gill, and a copy of a cheque in the amount of CAD$1591.50 dated November 7, 2002, made payable to Mrs. Gill.

[5] In Decision No. LET-C-A-165-2004 dated June 23, 2004, the Agency advised Aeroflot and Mrs. Gill that the Agency's jurisdiction in this matter is set out in subsections 110(4) and (5) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), which provide that a carrier must apply the terms and conditions of carriage specified in its tariff. The Agency also advised the parties that, according to the relevant provisions of Aeroflot's International Passenger Rules and Fares Tariff NTA(A) No. 210, Airline Tariff Publishing Company, Agent (hereinafter Aeroflot's tariff), Aeroflot's liability for lost luggage is limited to $20 per kilogram in the case of checked baggage, unless a higher value is declared in advance and additional charges are paid, and that there appears to be a discrepancy in the Property Irregularity Report (hereinafter the PIR) filed by Mrs. Gill concerning the weight of her lost luggage.

[6] Accordingly, the Agency requested Aeroflot to show cause why the Agency should not find that, in paying Mrs. Gill CAD$1,591.50 for 50 kilograms of lost luggage, Aeroflot had contravened subsections 110(4) and (5) of the ATR. The Agency also requested Aeroflot to explain to the Agency how the release signed by Mrs. Gill on October 19, 2002, complies with Article 23 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, as amended (hereinafter the Warsaw Convention).

[7] Aeroflot was provided thirty (30) days from the date of receipt of Decision No. LET-C-A-165-2004 dated June 23, 2004, to file with the Agency, and serve on Mrs. Gill, a submission addressing the issues raised in that Decision. Mrs. Gill was given ten (10) days from the date of receipt of Aeroflot's submission to file a reply with the Agency.

[8] On July 19, 2004, Aeroflot filed its submission. Mrs. Gill did not file a reply.

[9] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

ISSUES

[10] The issues to be addressed are whether Aeroflot applied the terms and conditions of carriage relating to the limitations of liability for checked baggage specified in its tariff, as required by subsections 110(4) and 110(5) of the ATR, and whether the release form signed by Mrs. Gill on October 19, 2002 and filed with the Agency by Aeroflot on December 20, 2002, is valid.

FACTS

[11] Mrs. Gill travelled on Aeroflot Flight No. 535 from New Delhi to Moscow followed by Flight No. 303 from Moscow to Toronto, on March 7, 2001. When she arrived in Toronto, she discovered that her two checked bags were missing. Mrs. Gill filed a complaint with the ATCC and included with her letter of complaint both a copy of her airline ticket and the PIR which she submitted to Aeroflot upon discovering that her two checked bags had not arrived in Toronto with her. In compensation, Aeroflot offered Mrs. Gill CAD$1,591.50. She signed a release form indicating that this amount was acceptable, and Aeroflot paid that amount to her.

POSITION OF THE PARTIES

[12] Aeroflot states that the compensation paid to Mrs. Gill is in "strict accordance" with the Warsaw Convention and with Aeroflot's tariff. The carrier submits that the compensation is based on a total weight of 50 kilograms, and that the weight of the checked-in bags on the original of the PIR was "illegitimately corrected" from 50 kilograms to 64 kilograms. Aeroflot adds that the compensation paid to Mrs. Gill is based on a weight which was undisputed by her when she accepted Aeroflot's settlement. The carrier maintains that because of these factors, the Agency's suggestion that Aeroflot has contravened Article 23 of the Warsaw Convention is "uncalled-for" and the Agency's reopening of the pleadings is irrelevant and unreasonable. Mrs. Gill did not dispute Aeroflot's position.

ANALYSIS AND FINDINGS

[13] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined Aeroflot's limitation of liability applicable to the carriage of baggage between points in Canada and points outside of Canada as set out in Aeroflot's tariff in effect at the time of Mrs. Gill's complaint.

[14] The jurisdiction of the Agency in this matter is set out in subsections 110(4) and (5) of the ATR, which provide that:

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.

110(5) No air carrier or agent thereof shall offer, grant, give, solicit, accept or receive any rebate, concession or privilege in respect of the transportation of any persons or goods by the air carrier whereby such persons or goods are or would be, by any device whatever, transported at a toll that differs from that named in the tariffs then in force or under terms and conditions of carriage other than those set out in such tariffs.

[15] Further, if a carrier fails to apply the prices or terms or conditions of carriage specified in its tariff, the Agency may, pursuant to paragraphs 113.1(a) and (b) of the ATR:

1. direct the licensee to take corrective measures that the Agency considers appropriate; and
2. direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[16] The Agency has reviewed Aeroflot's tariff on file with the Agency. Rule 55 (C)(3)(b) of the tariff in effect on March 7, 2001, states that:

Any liability of carrier is limited to $20.00 (250 French gold francs, consisting of 65½ milligrams of gold with a fineness of nine hundred thousandths) per kilogram in the case of checked baggage and $400.00 (5,000 French gold francs) per passenger in the case of unchecked baggage or other property, unless a higher value is declared in advance and additional charges are paid pursuant to the carrier's regulations. In that event the liability of the carrier shall be limited to such higher declared value. In no case shall the carrier's liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.

[17] The above provision essentially reproduces Article 22 of the Warsaw Convention which has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26.

[18] Further, the Agency notes that Article 23 of the Warsaw Convention states, in part that:

(1) Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

[19] The Agency notes that, on the copy of Mrs. Gill's airline ticket which was faxed to the Agency, a large "2/50" is written by hand in marker over the printed text on the ticket. The Agency is of the opinion that such a notation usually indicates the number of bags and the combined weight of the bags with which a passenger is travelling. Beside the "2/50" is a very small notation, also by hand, which appears to read "64", but due to the quality of the copy faxed to the Agency and to the style of the notation, the 64 could also be interpreted as "kg". The same hand-written notations appear on the faxed copy of the baggage claim checks filed with the Agency by Aeroflot. Further, in the box on the PIR used to identify the number of bags with which a passenger is travelling, the number "2" clearly identifies the number of bags. However, in the box where the weight is to be written, the figure appears to have been altered, originally showing the number 50, but over-written with the number 64.

[20] Aeroflot states that it used the 50-kilogram figure to calculate the compensation it paid to Mrs. Gill. The Agency notes that Mrs. Gill did not take issue with this calculation.

[21] Based on the formula set out in Aeroflot's tariff as of November 7, 2002, the date of Aeroflot's cheque to Mrs. Gill, Aeroflot's liability for 50 kilograms of lost luggage was limited to CAD$1,553 and its liability for 64 kilograms of lost baggage was limited to CAD$1,987.84.

[22] The Agency has carefully examined the PIR, the tickets and baggage claim checks and has considered Aeroflot's argument that the original of the PIR was "illegitimately corrected" from 50 to 64 kilograms. The Agency notes that Mrs. Gill did not provide any evidence to dispute Aeroflot's position at any time during the course of this proceeding. As a result of the documentary discrepancies concerning the weight of Mrs. Gill's lost baggage, the Agency is unable to determine whether the actual weight was 50 or 64 kilograms. In the absence of any other evidence and given that Mrs. Gill accepted payment and signed a release, the Agency is of the opinion that it is not unreasonable for the compensation to be based on 50 kilograms.

[23] In light of the foregoing, the Agency finds that Aeroflot applied the terms and conditions of carriage relating to the limitations of liability for checked baggage specified in its tariff in paying Mrs. Gill CAD $1,591.50 in compensation for 50 kilograms of lost luggage.

[24] In light of the above findings, the issue with respect to the validity of the release signed by Mrs. Gill on October 19, 2002, is moot.

CONCLUSION

[25] Based on the foregoing, the Agency hereby dismisses the complaint.