Decision No. 308-C-A-2010

July 21, 2010

July 21, 2010

COMPLAINT by Alexandra MacGillivray against Cubana de Aviación S.A.

File No. M4120-3/10-00157


INTRODUCTION AND ISSUES

[1] Alexandra MacGillivray filed a complaint with the Canadian Transportation Agency (Agency) respecting the late delivery of her baggage while travelling between Toronto, Ontario, Canada and Varadero, Cuba, in May 2009.

[2] The International Rules and Fares Tariff NTA(A) No. 506 (Tariff) and statutory extracts relevant to this Decision are set out in the Appendix.

[3] The issues to be determined are:

  1. Did Cubana de Aviación S.A. (Cubana) properly apply the terms and conditions of carriage relating to the limits of liability for checked baggage as set out in Rule C55(N)(B)(5) of its Tariff, which incorporates the Montreal Convention by reference, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
  2. If Cubana failed to properly apply the terms and conditions of carriage specified in its Tariff, is Mrs. MacGillivray entitled to reimbursement?
  3. Is Rule C55(N)(C)(14) of the Tariff just and reasonable as required by subsection 111(1) of the ATR?

[4] As indicated in the following reasons, the Agency finds that:

  1. Cubana failed to establish that, with respect to the recovery of Mrs. MacGillivray's baggage, it took all measures that could reasonably be required to avoid the damage or that it was impossible for it or its servants and agents to take such measures, as required by Article 19 of the Montreal Convention;
  2. Compensation is due to Mrs. MacGillivray in the amount of CAD$77.08, which is the equivalent of CUP$74.50; and
  3. On a preliminary basis, Rule C55(N)(C)(14) of the Tariff is not just and reasonable as required by subsection 111(1) of the ATR.

BACKGROUND

[5] On May 2, 2009, Mrs. MacGillivray travelled with Cubana on Flight No. 183 from Toronto to Varadero for a one-week vacation. Mrs. MacGillivray checked one piece of baggage. Upon arrival at the Varadero airport, she discovered that her baggage was missing. She subsequently filed a lost baggage report at the airport.

[6] While in Varadero, Mrs. MacGillivray purchased some replacement items; however, she did not retain any receipts.

[7] On May 10, 2009, the day following her return from Varadero, Mrs. MacGillivray went back to the Toronto airport and was given access to the lost baggage room, where she located her baggage.

SUBMISSIONS

[8] Mrs. MacGillivray seeks compensation of up to 1,000 Special Drawing Rights (SDR) as she believes that Cubana made no effort to find and deliver her baggage to her, and therefore did not respect its terms and conditions of carriage respecting delayed baggage. She submits that due to the course of events, she did not enjoy her vacation, which was quite expensive.

[9] Mrs. MacGillivray indicates that during her seven-day vacation in Varadero, she called the Varadero airport several times and was told that there was no response from Cubana's representatives in Toronto regarding her baggage. In support of this assertion, Mrs. MacGillivray provided a copy of a hotel invoice containing telephone charges totalling CUP$14.50, which she submits accounts for the telephone calls that she placed to the Varadero airport.

[10] Mrs. MacGillivray claims that she was unsuccessful in her attempt to purchase clothing in Varadero, except for a bathing suit, flip-flops and sunscreen lotion, for a total price of approximately CUP$60. She adds that she does not have receipts for these items as they were purchased in the hotel gift shop. She contends that she spent the entire time wearing her husband's shirts and that she borrowed uniform pants from the hotel staff. Mrs. MacGillivray indicates that Cubana was willing to give her CUP$42 to cover her necessities, but she refused the offer as there would only have been CUP$2 left after she paid the cab fare to downtown Varadero to collect the funds at Cubana's office.

[11] Mrs. MacGillivray submits that upon her return to Toronto, she asked to see the airport's lost baggage room to try to locate her suitcase but was told that no one was available to show her that area. She asserts that she provided a description of the baggage to Cubana's representatives; however, they were unable to locate her baggage. Mrs. MacGillivray points out that she was given a telephone number to call, but, after a few calls, she was told that they were unable to find her suitcase.

[12] Mrs. MacGillivray explains that on the day following her return to Toronto, she drove to the airport and was able to access the lost baggage room, at which point she found her suitcase. She further points out that her suitcase was the only green one in the room, that it had her name on it and that it contained a book about Cuba, in which her name was inscribed.

[13] Cubana notes that it appears from Mrs. MacGillivray's complaint that she limits her claim against the carrier to consequential damages for loss of enjoyment of her vacation, and contends that the Agency should dismiss her complaint as the Agency does not have the mandate to award such damages.

[14] Cubana asserts that Mrs. MacGillivray cannot claim the indemnity set out in Article 22 of the Montreal Convention as her baggage was not lost, nor did Cubana admit to the loss of the baggage. Furthermore, the carrier points out that Article 29 of the Montreal Convention prevents Mrs. MacGillivray from taking any action for consequential damages.

[15] According to Cubana, its decision to deny Mrs. MacGillivray's claim is justified in light of its Tariff, as filed with the Agency, which provides, among other things, that the carrier shall not be liable for consequential damages arising from or connected in any way with any act or omission by the carrier or its agents.

[16] Cubana indicates that while it denies any liability in respect of Mrs. MacGillivray's complaint, for the sole purpose of keeping good relations with its clientele, the carrier offered her a 50 percent discount on the purchase of her next flight to Cuba on Cubana, in full and final settlement of the claim.

[17] Mrs. MacGillivray submits that she is not looking for consequential damages for loss of enjoyment of her vacation, as this could be done in a court of law if or when necessary. She adds that Cubana's offer of a 50 percent discount on her next trip to Cuba is not a fair offer as she does not intend to go to Cuba again.

[18] Mrs. MacGillivray asserts that while Cubana at no time admitted to the loss of her baggage, it did admit that the baggage did not arrive at destination and that she filed an appropriate report at the Varadero airport concerning the undelivered baggage. Mrs. MacGillivray refers to Article 19 of the Montreal Convention which, among other things, establishes a carrier's liability regarding the delayed delivery of baggage.

[19] Mrs. MacGillivray notes that while her baggage, which had her name and address on the exterior, was placed in the Toronto airport's lost baggage room on May 3, 2009, telephone calls placed by both herself and agents at the Varadero airport to the Toronto airport in efforts to identify the baggage were unsuccessful. She is therefore of the opinion that Cubana made no effort to locate her baggage.

[20] With respect to Article 19 of the Montreal Convention, Cubana submits that Mrs. MacGillivray is mistaken when she infers that the carrier never tried to locate her baggage. Cubana asserts that the destination tag on Mrs. MacGillivray's luggage was missing and that Handlex Toronto (Handlex), the carrier's baggage handling service provider, followed the usual procedures with respect to lost baggage. In support of its submission, Cubana provided correspondence from one of Handlex's employees, who points out that Mrs. MacGillivray's baggage was taken to the room used to store tagless baggage, as her baggage had no destination tag. The Handlex employee explains that without a destination tag, it was impossible to identify to whom the baggage belonged, and it was difficult to establish on which flight it should have been carried.

[21] The Handlex employee adds that tagless bags are entered into the WorldTracer system by color, type, any identification on the outside, and most importantly contents. The employee explains that in order for a match to be made, Handlex relies on "destinations" to input as much information as possible about contents in their missing reports to facilitate a match to their file. The Handlex employee notes that as every air carrier has access to the lost baggage room, the carriers sometimes take the baggage into their offices to try to match it with their passengers' lost baggage list, and that the baggage is then returned to the lost baggage room if no match is made.

[22] In response, Mrs. MacGillivray reiterates that her suitcase was the only green one in the room where she found it, and that it contained her name and address in the outside pouch. She submits that when she asked the person who worked in the room why they were unable to find the suitcase with her name on it, she got a shoulder shrug. She therefore questions if the handling service's staff followed proper procedure, why no one checked her name on the suitcase.

ANALYSIS AND FINDINGS

[23] In making its findings, the Agency has considered the evidence submitted by the parties during the pleadings. The Agency also reviewed the Tariff which incorporates, by reference, the Montreal Convention, which has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26.

1. Did Cubana properly apply the terms and conditions of carriage relating to the limits of liability for checked baggage as set out in Rule C55(N)(B)(5) of its Tariff, which incorporates the Montreal Convention by reference, as required by subsection 110(4) of the ATR?

[24] The Agency notes that Cubana indicated that as Mrs. MacGillivray's baggage was not lost, and that the carrier did not admit to such loss, Mrs. MacGillivray cannot claim the indemnity set out in Article 22 of the Montreal Convention, and that Article 29 of the Montreal Convention prevents Mrs. MacGillivray from taking any action for consequential damages.

[25] While the Agency agrees with Cubana's position, it is uncontested that Mrs. MacGillivray's baggage was delayed and did not arrive at destination. The Agency notes that Mrs. MacGillivray refers to Article 19 of the Montreal Convention, which provides that a carrier is liable for damage due to delay and places on the carrier the burden of establishing that it or its servants took all measures that could reasonably be required to avoid the damage occasioned by delay.

[26] Cubana maintains that the allegation that it never tried to locate Mrs. MacGillivray's baggage is groundless and provides evidence that a missing destination tag made it impossible to identify the passenger to which the baggage belonged and difficult to establish on which flight the baggage should have been carried. Nevertheless, the Agency notes that Mrs. MacGillivray submits uncontested evidence that her name was attached to the exterior of her baggage, that her suitcase was the only green one in the lost baggage room and that her baggage contained a book about Cuba, in which her name was inscribed. Cubana addressed none of these issues, nor did the carrier address the issue of why Handlex was unable to match the name on the outside of Mrs. MacGillivray's baggage with her name on the missing baggage report.

[27] The Agency finds that on a balance of probabilities, Cubana has failed to meet its burden of proving that it made reasonable efforts to reunite Mrs. MacGillivray with her baggage, as required by Article 19 of the Montreal Convention.

[28] Consequently, the Agency finds that by not compensating Mrs. MacGillivray for expenses related to the delayed delivery of her baggage, Cubana acted in a manner that is inconsistent with the Montreal Convention and its Tariff, and therefore contravened subsection 110(4) of the ATR.

2. If Cubana failed to properly apply the terms and conditions of carriage specified in its Tariff, is Mrs. MacGillivray entitled to reimbursement?

[29] Mrs. MacGillivray claims that she is entitled to compensation of up to 1,000 SDR under the Montreal Convention, as she believes that Cubana was negligent in the handling of her baggage. However, she provided no receipt or other proof to substantiate her claim that she incurred expenses in that amount.

[30] The Agency is of the opinion that a party, in endeavoring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. While the production of original receipts of purchase will generally adequately support proof of loss, circumstances may render it unreasonable to require this form of proof. In these situations, it may be unreasonable to expect that such proof is in an applicant's possession. Other methods such as a sworn affidavit, a declaration or the inherent reasonableness of the expenses claimed could, in some cases, assist in determining the validity of a claim. Furthermore, the Agency notes that Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase.

[31] Mrs. MacGillivray provided an invoice containing telephone charges totalling CUP$14.50 for telephone calls that she placed to the Varadero airport in efforts to locate her baggage. Also, she asserted that she purchased a bathing suit, flip-flops and sunscreen lotion totalling approximately CUP$60, but that she does not have receipts for these items as they were purchased in the hotel gift shop.

[32] The Agency accepts Mrs. MacGillivray's evidence in this respect as it accords with common sense and is reasonable, having regard to the circumstances.

[33] The Agency notes that Cubana was willing to give Mrs. MacGillivray, while she was in Varadero, an amount of CUP$42 so that she could purchase necessities.

[34] In light of the circumstances, the Agency finds that Mrs. MacGillivray is entitled to compensation for damages occasioned by the delayed return of her baggage, and that she has provided sufficient evidence to establish, on a balance of probabilities, that she incurred expenses totalling CUP$74.50. This amount represents the expenses for the clothing and necessities that she purchased and the telephone calls that she placed to the Varadero airport.

3. Is Rule C55(N)(C)(14) of the Tariff just and reasonable as required by subsection 111(1) of the ATR?

[35] The Montreal Convention has the force of law in Canada by virtue of the Carriage by Air Act and governs the liability limitations for loss, damage or delay of baggage as applicable to international carriage. Article 26 of the Montreal Convention states, in part: "Any provision [of a carrier's tariff] 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, [...]".

[36] The Agency notes that Rule C55(N)(C)(14) of the Tariff provides, in part, that the carrier has the right to disallow claims that are not supported by proof of loss in the form of receipts of purchase. The Agency is concerned that this Rule appears to be unduly restrictive inasmuch as it would preclude settlement of reasonable claims in the absence of receipts. As receipts of purchase are often not retained, this Rule subjects claimants to an overly onerous or impossible obligation in order to obtain compensation.

[37] Pursuant to paragraph 113(a) of the ATR, the Agency may disallow a tariff rule that it finds to be unjust and unreasonable. In addition, the Agency notes that the Montreal Convention does not require proof of loss in the form of receipts of purchase.

[38] Consequently, the Agency finds, on a preliminary basis, that Rule C55(N)(C)(14) of the Tariff is unjust and unreasonable within the meaning of subsection 111(1) of the ATR and contrary to Article 26 of the Montreal Convention, thereby rendering this tariff provision null and void.

CONCLUSION

[39] Based on the above findings and pursuant to section 113.1 of the ATR, the Agency directs Cubana to provide to Mrs. MacGillivray, within 30 days from the date of this Decision, compensation in the amount of CAD$77.08, which is equivalent to CUP$74.50.

[40] Cubana is required to advise the Agency once the compensation has been provided to Mrs. MacGillivray.

[41] The Agency provides Cubana with the opportunity to show cause, within 45 days from the date of this Decision, why the Agency should not disallow Rule C55(N)(C)(14) of the Tariff and require the carrier to amend such Rule to read: "Carrier may disallow any claim for loss or damage which contains misrepresentations, including false statements concerning whether or not the passenger has made previous claims with CU or other carriers and/or where the passenger fails to have the carrier's baggage claim declaration form notarized. Carrier may also disallow claims when the passenger fails to provide proof of loss."

Membres

  • Jean-Denis Pelletier, ing.
  • J. Mark MacKeigan

International Rules and Fares Tariff NTA(A) No. 506

Rule C55(N)(B)(5)

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.

Rule C55(N)(C)(14)

Carrier may disallow any claim for loss or damage which contains misrepresentations, including false statements concerning whether or not the passenger has made previous claims with CU or other carriers and/or where the passenger fails to have the carrier's baggage claim declaration form notorized. Carrier may also disallow claims when the passenger fails to provide proof of loss in the form of receipts of purchase.

Air Transportation Regulations, SOR/88-58, as amended

Subsection 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.

Subsection 111(1)

All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

Paragraphs 113.1(a) and (b)

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.

Montreal Convention

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 reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Article 22(2) – Limits of Liability in Relation to Delay, Baggage and Cargo

In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 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.

Article 26 – Invalidity of Contractual Provisions

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.

Article 29 – Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

Member(s)

J. Mark MacKeigan
Jean-Denis Pelletier, P.Eng.
Date modified: