Decision No. 442-C-A-2009

October 22, 2009

File No. M4120-3/09-04100

BACKGROUND

[1] In its Decision No. 208-C-A-2009, the Canadian Transportation Agency (Agency) found, among other things, that:

• Rule 55(C)(12) of Air Canada's International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff) is not consistent with the Montréal Convention (Convention); and
• Rule 97(A)(3)(2) of the Tariff, as it relates to overpacked baggage, fails to clearly set out Air Canada's terms and conditions with respect to baggage that is unsuitable for acceptance for transportation.

[2] The Agency provided the carrier with an opportunity to show cause (show cause direction) why it should not require Air Canada to:

• amend Rule 55(C)(12) of the Tariff to strictly represent Article 17(2) of the Convention;
• amend Rule 97(A)(3)(2) to read as follows: "overpacked baggage considering the style, size and quality of the baggage"; and
• delete Rule 55(C)(16) of the Tariff in light of these proposed amendments.

ISSUE

[3] Do Air Canada's Tariff amendments comply with the show cause direction set out in Decision No. 208-C-A-2009?

PRELIMINARY MATTER

[4] The Agency notes that Gábor Lukács and Air Canada filed submissions respecting this matter that were filed after pleadings had closed. The Agency is satisfied that the pleadings submitted in accordance with the time periods provided to the parties are sufficient for the Agency to make a determination in this matter. Accordingly, the late-filed submissions are not accepted and do not form part of the public record. Those submissions will be returned to the parties under separate cover.

FACT

[5] On June 30 and September 11, 2009, in response to the show cause direction, Airline Tariff Publishing Company (ATPCo), on behalf of Air Canada, filed with the Agency the following amendments to the Tariff:

• added the following wording to Rule 55(C)(12):
  

  including damage or delay to perishable items or loss or delay of unsuitably or inadequately packed items, to the extent that the destruction, loss or damage resulted from the inherent defect, quality of vice of the baggage, or, in case of delay, that the carrier, its agents, and servants took all measures that could reasonably be required to avoid the damages or that was impossible to take such measures.

• deleted Rule 55(C)(16);
• deleted Rule 97(A)(3)(1); and
• deleted the word "oversized" in Rule 97(A)(3)(2) and added the wording "considering the style, size and quality of the baggage".

ANALYSIS

[6] With respect to the first line of Rule 55(C)(12), the Agency notes the absence of the word "destruction", and with regard to the amendment to Rule 55(C)(12), the Agency notes a typographical error (the use of the word "of" rather than "or" in the phrase "quality of vice of the baggage") and the absence of the word "it" in the phrase "or that was impossible to take such measures". Also, the Agency finds that the word damage with an "s" in Rule 55(C)(12) makes it inconsistent with Article 17(2) of the Convention. Accordingly, the revised Rule 55(C)(12) does not strictly represent Article 17(2) of the Convention and the Agency finds this provision, as amended, to be unjust and unreasonable.

[7] With respect to the amendments to Rule 55(C)(16), Rule 97(A)(3)(1) and Rule 97(A)(3)(2) of the Tariff, the Agency accepts these amendments and contemplates no further action.

CONCLUSION

[8] Based on the above findings, the Agency, pursuant to paragraph 113(a) of the Air Transportation Regulations, SOR/88-58, as amended, disallows entirely Rule 55(C)(12) of the Tariff and substitutes in its place the following provision:

Carrier shall not be liable for the destruction, loss, damage, or delay in delivery of any property which is not acceptable for transportation in accordance with Rules 97, 100 and 105 or for any other loss or damage of whatever nature resulting from any such loss or damage or from the transportation of such property including damage or delay to perishable items or loss or delay of unsuitably or inadequately packed items, to the extent that the destruction, loss or damage resulted from the inherent defect, quality or vice of the baggage, or, in case of delay, that the carrier, its agents, and servants took all measures that could reasonably be required to avoid the damage or that it was impossible to take such measures. This exclusion is applicable whether the non acceptable property is included in the passenger's checked baggage with or without knowledge of the carrier.

[9] Air Canada is required, within 10 days of the date of this Decision, to ensure that its Tariff includes the above-noted provision.

Members

• J. Mark MacKeigan
• John Scott