Decision No. 333-C-A-2015

APPLICATION

[1]

Aaron de Mello filed an application with the Canadian Transportation Agency (Agency) against Jet Airways (India) Limited (Jet Airways) regarding the alleged loss of his baggage while travelling on Jet Airways on January 10 and 11, 2015 from Mumbai, India to Toronto, Ontario, Canada via Abu Dhabi, United Arab Emirates and Brussels, Belgium.

REMEDY SOUGHT

[2]

Mr. de Mello requests an amount of money equivalent to the value of his return ticket. He is of the opinion that it is more easily quantifiable than having Jet Airways evaluate the value of his baggage and its content.

ISSUES

1. Did Jet Airways properly apply Rule C55(C)(18), which relates to liability in case of lost baggage, of its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), 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 Rule C55(C)(18) of its Tariff, what remedy, if any, is available to Mr. de Mello?

ISSUE 1: DID JET AIRWAYS PROPERLY APPLY RULE C55(C)(18) OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Position of Mr. de Mello

[3]

Mr. de Mello submits that when he boarded his flight in Mumbai, he was informed by a crew member that there was no space in the overhead compartments for his carry-on baggage, and therefore it would need to be checked. Mr. de Mello states that he believed that it was a standard procedure, and he therefore handed over his baggage to the crew member, who did not provide him with a tag. Mr. de Mello adds that the crew member wrote Mr. de Mello’s seat number (10F) on the security tag of his baggage, and assured him that he would get it back at his next or final destination.

[4]

Mr. de Mello advises that his baggage was not on the baggage carrousel when he arrived at the Abu Dhabi airport. He submits that the baggage attendants informed him that all baggage had been unloaded off his flight and that his baggage was most likely in transit to his final destination, i.e., Toronto.

[5]

Mr. de Mello states that when he arrived in Toronto, he received his checked baggage, but not his carry-on baggage. He indicates that a Jet Airways representative at the baggage carrousel took down his contact information and flight details, and told him that he could leave the airport as nothing could be done right away. Mr. de Mello asserts that this person did not give him a complaint number or other tracking information, but advised him that he would be contacted.

[6]

Mr. de Mello advises that he contacted Jet Airways several times, but that each time, the carrier faulted him for not making an official lost baggage claim, and for not getting a tracking number for his carry-on baggage, despite the fact that he spoke to numerous Jet Airways staff members about his missing baggage during his travel from Mumbai to Toronto.

[7]

Mr. de Mello admits that he was at fault for not obtaining some method of tracking from the air crew for his carry-on baggage, but he was under the impression that the crew member who took his baggage to have it checked was following a standard procedure when situations of lack of space occur, and that his baggage would be handled with care and delivered to him at his next or final destination. He adds that he trusted Jet Airways’ staff members.

[8]

According to Mr. de Mello, the following items were in his carry-on baggage:

• Sennheiser headphones;

• an iPod Nano;

• a pen;

• several articles of clothing;

• some fruit and a drink; and,

• a Lenovo laptop adapter.

Position of Jet Airways

[9]

Jet Airways argues that there is no evidence that Mr. de Mello’s baggage was taken from him, that a tag was affixed to such baggage, or that a claim tag was given to him. Nevertheless, Jet Airways states that it has undertaken considerable efforts to search for the missing baggage in Abu Dhabi, Brussels and Toronto.

[10]

Jet Airways contends that it is not possible to settle a claim arising out of the mishandling of hand baggage in this case as there is no evidence of a tag being given or not being given to Mr. de Mello. Jet Airways states that it is a mandatory procedure that a “Limited Release Tag” be issued by an airport services representative, and that a claim tag be handed to guests at the aircraft door.

[11]

Jet Airways advises that it assumes no responsibility for the missing baggage or declared/undeclared content and, therefore, a refund of the return ticket is not possible.

Reply of Mr. de Mello

[12]

Mr. de Mello disagrees with Jet Airwaysʼ assertions that there is no evidence that his baggage was taken from him, and that Jet Airways has made considerable efforts to search for the missing baggage. Mr. de Mello submits that the security footage covering the boarding of his flight could provide evidence that he did, indeed, have a carry-on baggage with him during this time, and then no baggage while disembarking from the same flight. With respect to Jet Airways’ assertion that it made considerable efforts to locate his baggage, Mr. de Mello argues that the carrier has not provided any evidence to substantiate this assertion. He also alleges that Jet Airways has not provided any evidence that it contacted or interviewed staff members involved in the incident.

[13]

Mr. de Mello reiterates that he gave his carry-on baggage to the crew member, when requested to do so, because of the lack of space in the overhead compartments. He submits that if such a requirement is part of standard procedures, then it is Jet Airways’ responsibility to ensure that the baggage at issue was tagged accordingly and that he was provided with the means to track that baggage. However, Mr. de Mello states that, as admitted by Jet Airways, such tagging was not conducted and such procedures were not followed. According to Mr. de Mello, Jet Airways therefore has to assume responsibility for his missing baggage, as the loss is due to its failure to follow procedures.

Analysis and findings

[14]

Rule C55(C)(18) of the Tariff states 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.

[15]

Article 17(2) of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Convention) provides that:

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 the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[16]

In accordance with a well-established principle on which the Agency relies when considering 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.

[17]

Mr. de Mello advises that, upon request from a Jet Airways’ crew member, he relinquished his carry-on baggage, that he trusted the crew member when they assured him that he would get it back at his next or final destination, and that he was not provided with a tag to reflect that the baggage had been checked. He also points out that he provided information respecting his lost baggage to a Jet Airways representative at the Toronto airport.

[18]

Jet Airways states that there is no evidence that Mr. de Mello’s carry-on baggage was taken away from him and whether a tag was affixed to that baggage or a claim tag was given to him.

[19]

When contradictory versions of events are presented by the parties, the Agency has previously ruled, most recently in Decision No. 426-C-A-2013 (Gibbins v. Société Air France carrying on business as Air France), that the burden of proof falls on the applicant to establish that their version is the most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[20]

In determining which version is more probable, the Agency is guided by Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C.C.A.) (QL); [1952] 2 D.L.R. 354, where the test to be applied when credibility is at issue is well established. The following passage taken from paragraph 11 of Faryna v. Chorny sets out the test to apply:

[...] The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. [...]

[21]

The Agency finds that Mr. de Mello has provided a coherent account of events respecting what may have happened. It is plausible that during the distractions that may be associated with the boarding process, including the finding of seats by passengers, and the placement of baggage in the overhead compartments, a crew member could have taken Mr. de Mello’s baggage and neglected to provide him with any form of proof that that baggage had been checked. Mr. de Mello’s apparent failure to request such proof may have simply been the result of his belief that the Jet Airways crew member knew what they were doing, and that there was no need to make note of their name or to insist on a receipt.

[22]

Jet Airways apparently made no efforts to substantiate its assertion that Mr. de Mello’s baggage was not handed over to a Jet Airways staff member. In this regard, Jet Airways has not provided to the Agency any evidence such as statements from the crew of the flight on which Mr. de Mello was a passenger or a confirmation as to whether the flight was full and the baggage was removed from the aircraft cabin and placed in the aircraft’s bellyhold. Jet Airways asserts that it searched for Mr. de Mello’s baggage in various locations but, as Mr. de Mello points out, Jet Airways has provided no evidence to demonstrate this.

[23]

The Agency is of the opinion that Mr. de Mello’s account of events is coherent and convincing. Jet Airways has not provided any compelling evidence, such as statements from the crew members, to support its position that its crew members did not take Mr. de Mello’s baggage. The Agency finds that Mr. de Mello’s version of events is the most likely to have occurred and finds as a fact that Jet Airways has lost Mr. de Mello’s baggage.

[24]

Rule C55(C)(18) of the Tariff provides, in part, that Jet Airways is liable for damage sustained for loss of checked baggage. The Agency finds that Mr. de Mello has discharged his burden of proving, on a balance of probabilities, that by refusing to accept that it is liable in accordance with its Tariff, Jet Airways has not properly applied Rule C55(C)(18) of its Tariff, as required by subsection 110(4) of the ATR.

ISSUE 2: IF JET AIRWAYS DID NOT PROPERLY APPLY RULE C55(C)(18) OF ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. DE MELLO?

Analysis and findings

[25]

Section 113.1 of the ATR provides that:

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

(a) take the corrective measures that the Agency considers appropriate; and

(b) 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.

[26]

Rule C55(C)(14) of the Tariff, which relates to liability in case of lost baggage, provides, in part, that:

[Jet Airways] may […] disallow claims where the passenger fails to provide proof of loss in the form of receipts of purchase or other such reliable documentary evidence. It is however clarified that [Jet Airways] shall not be liable beyond the limits or its liability as per applicable Conventions and laws.

[27]

Article 22(2) of the Convention establishes a limit of liability of 1,131 Special Drawing Rights in case of destruction, loss or delay of, or of damage to, baggage, unless the passenger declares excess value.

[28]

In Decision No. 244-C-A-2014 (Cankech v. Brussels Airlines N.V./S.A. carrying on business as Brussels Airlines), the Agency stated that:

Mr. Cankech has not provided receipts to substantiate his loss. Brussels Airlines does not challenge the value of the loss claimed by Mr. Cankech. In Decision No. 308-C-A-2010 (MacGillivray v. Cubana), the Agency found it unreasonable to require forms of proof, such as receipts, as they may no longer be in an applicant’s possession. According to that Decision, 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, Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase. The Agency finds the value of the loss as stated in Mr. Cankech’s complaint to be acceptable in the present circumstances.

[29]

In that Decision, the Agency indicated that actual receipts are not required, but that other forms of evidence would be acceptable to prove the amount of the loss. Mr. de Mello has not provided any evidence that would allow the Agency to quantify his loss. In fact, in the application, Mr. de Mello states that he does not want Jet Airways to place a value on his baggage, preferring to request a refund in an amount equivalent to the value of his return ticket which he submits is more easily quantifiable. The Agency is of the opinion that the appropriate remedy in these circumstances would be to compensate Mr. de Mello for his loss, as provided for in the ATR. However, in the absence of any statement on the value of the items lost or proof of their value, the Agency is unable to direct Jet Airways to pay compensation.

[30]

Based on the above, the Agency finds that Mr. de Mello’s failure to provide any information regarding the value of his baggage and its content is fatal to his claim for compensation.

CONCLUSION

[31] In light of the foregoing, the Agency concludes that Jet Airways has contravened subsection 110(4) of the ATR by failing to apply Rule C55(C)(18) of its Tariff. Given Mr. de Mello’s failure to provide evidence of or to quantify his loss, there is no basis upon which the Agency can direct Jet Airways to compensate Mr. de Mello.