Decision No. 36-C-A-2021

SUMMARY

[1] Luz Stella Gomez filed an application with the Canadian Transportation Agency (Agency) against Avianca regarding damage to, and items missing from, her checked baggage following her travels from Toronto, Ontario, to Medellin, Colombia, on November 6, 2017.

[2] Ms. Gomez seeks re-issuance of the USD 422 payment that Avianca attempted to provide as compensation for her missing items and the cost of a replacement suitcase. The payment was rejected by Ms. Gomez’ bank due to a discrepancy with the name.

[3] The Agency will address the following issues:

• Did Avianca properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AV1 Containing Local Rules, Fares & Charges on Behalf of Aerovias Del Continente Americano S.A. applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in area 1/2/3, NTA(A) No. 326 (Tariff), with regard to the liability of carriers respecting baggage, as required by subsection 110(4) of the ATR?

• If Avianca did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that Avianca did not properly apply the terms and conditions set out in Rule 55(B)(4) of its Tariff. Therefore, pursuant to section 113.1 of the ATR, the Agency orders Avianca to compensate Ms. Gomez in the amount of CAD 333.57. Avianca is to pay this amount to Ms. Gomez as soon as possible and no later than June 21, 2021.

BACKGROUND

[5] Ms. Gomez travelled with Avianca from Toronto to Medellin on November 6, 2017, via  San Salvador, El Salvador. Upon claiming her two pieces of checked baggage at the airport in Medellin, she noticed that both were damaged and that items were missing from one of the bags. Ms. Gomez immediately reported the damage and loss to an Avianca agent, who created a Property Irregularity Report (PIR).

PRELIMINARY MATTERS

Additional submission by Ms. Gomez

[6] When acknowledging receipt of the Agency’s letter that opened the pleadings on the application (opening pleadings letter), Ms. Gomez submitted additional supporting documents to the Agency. However, she did not provide a copy to Avianca, as required by section 8 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules) or submit a request to file the document under subsections 30(1) or 34(1) of the Rules. Accordingly, the additional documents will not be placed on the Agency’s record and, therefore, will not be considered.

Late answer

[7] Avianca filed an answer to the application (answer) four weeks past the time limit set in the opening pleadings letter but did not file a request for an extension of the time limit for its submission under subsection 30(1) of the Rules. Furthermore, Avianca neither copied Ms. Gomez on its answer, as required by section 8 of the Rules, nor corrected this when advised of the requirement by Secretariat upon receipt of the answer. Accordingly, the answer will not be placed on the Agency’s record and, therefore, will not be considered.

THE LAW AND RELEVANT TARIFF PROVISION

[8] Subsection 110(4) of the ATR requires that an air 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:

(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.

[10] Article 17, paragraph 2, of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) states, in part, the following:

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….

[11] Article 31, paragraph 2, of the Montreal Convention states, in part, the following:

In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage….

[12] The relevant Tariff provision is set out in the Appendix.

POSITION OF THE APPLICANT

[13] Ms. Gomez states that the items missing from her checked baggage were worth a total of CAD 199.96 and that the damage to her baggage required her to purchase a replacement suitcase, at a cost of COP 312,900 (approximately CAD 133.61 on date of purchase), for her return trip on November 28, 2017. In support of her claim, Ms. Gomez provided an itemized list of the missing items, with receipts for some of the stated amounts; the receipt for her new suitcase, dated November 27, 2020; and a copy of the PIR, created under the name “Luz Estella Gomez Jaramillo.”

[14] Ms. Gomez states that she sent Avianca the receipts for her missing items and new suitcase on December 1, 2017, and that Avianca attempted to deposit USD 422 in her bank account on May 24, 2019. However, Ms. Gomez submits that the bank rejected the deposit because of a discrepancy with the name and argues that Avianca should reissue the payment and deposit it into her US account.

ANALYSIS AND DETERMINATION

Did Avianca properly apply the terms and conditions set out in its Tariff, with regard to the liability of carriers respecting baggage, as required by subsection  110(4)  of  the ATR?

[15] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[16] Rule 55(B)(4) of Avianca’s Tariff incorporates by reference the Montreal Convention. Pursuant to Article 17, paragraph 2, of the Montreal Convention, the carrier is liable for loss of or damage to baggage if the event that caused the damage or loss took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.

[17] Based on the evidence before it, the Agency finds that Ms. Gomez’ baggage was damaged, that items were missing from her baggage and that the damage and loss occurred during the period within which the checked baggage was in the charge of Avianca. The Agency further finds that, while Avianca attempted to deposit USD  422  in  her account, Ms. Gomez has not received compensation for the damage or loss.

[18] Ms. Gomez provided the PIR filed with Avianca on November 6, 2017, which establishes that she notified Avianca within the timeframe prescribed by Article 31, paragraph 2, of the Montreal Convention. She also provided receipts which substantiate the cost of her replacement suitcase and that of some of the missing items.

[19] Based on the above, the Agency finds that Avianca failed to comply with its Tariff by not providing compensation for the missing items or the replacement suitcase. Although Avianca attempted to compensate Ms. Gomez, the payment was not successfully transmitted. The attempt therefore does not alter Avianca’s obligation to provide compensation.

If Avianca did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[20] Ms. Gomez seeks reissuance of the USD 422 payment attempt of May 24, 2019; however, she does not explain how Avianca arrived at that amount.

[21] The Agency may order a carrier to pay for any expenses incurred when a carrier has failed to apply its tariff provisions. In this instance, the provisions of the Montreal Convention are incorporated in the Tariff. Ms. Gomez has provided a detailed claim with various receipts, where these were available and, accordingly, she is to be compensated in accordance with the provisions of the Montreal Convention. 

[22] According to Ms. Gomez’ application and supporting documents, the value of her missing items is CAD 199.96. While there is no evidence on record to substantiate the listed value of some of these items, receipts may not be required for proof of loss, as indicated in Decision No. 308-C-A-2010 (MacGillivray v Cubana) and Decision No. 36-C-A-2018 (Scordo v Air Canada). In this case, the Agency finds that the value of Ms. Gomez’ missing items is as indicated in her itemized claim.  

[23] According to the receipt submitted in support of her application, Ms. Gomez paid the equivalent of CAD 133.61 for her replacement suitcase.

[24] Based on the foregoing, the Agency finds that Ms. Gomez is entitled to CAD 333.57.

[25] While a previous unsuccessful attempt was made by Avianca for a wire transfer payment of USD 422 for the damages incurred with respect to Ms. Gomez’ baggage, the Agency may only make an award for the amount of damages actually incurred, which by Ms.  Gomez’ evidence constitutes CAD 333.57 for the damaged suitcase and missing contents. The Agency cannot order Avianca to make a replacement wire payment in the amount of USD 422. 

CONCLUSION

[26] Based on the above, the Agency finds that Avianca did not properly apply the terms and conditions set out in Rule 55(B)(4) of its Tariff, which incorporates by reference the Montreal Convention, as required by subsection 110(4) of the ATR.

ORDER

[27] Pursuant to section 113.1 of the ATR, the Agency orders Avianca to compensate Ms. Gomez in the amount of CAD 333.57. Avianca is to pay this amount to Ms. Gomez as soon as possible and no later than June 21, 2021.

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APPENDIX TO DECISION NO. 36-C-A-2021

International Passenger Rules and Fares Tariff No. AV1 Containing Local Rules, Fares & Charges on Behalf of Aerovias Del Continente Americano S.A. applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in area 1/2/3, NTA(A) No. 326

Rule 55 LIABILITY OF CARRIER

(B) LAWS AND PROVISIONS APPLICABLE

…

(4) (Applicable to AV/CM/JM/LR and UP only) 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.