Decision No. 45-C-A-2021

SUMMARY

[1] Aïssata Cissé filed an application with the Canadian Transportation Agency (Agency) against Corsair regarding the loss of a piece of baggage upon her return from a trip that included an initial flight from Paris, France, to Abidjan, Ivory Coast, on June 30, 2019, and flights from Abidjan to Montréal, Quebec, via Paris on July 6 and 7, 2019.

[2] Ms. Cissé requests compensation broken down as follows:

• CAD 1255 for the contents of her baggage;
• CAD 100 for calling cards to phone Corsair employees in Paris to retrieve her baggage; and
• CAD 300 in moral damages for stress caused by unresolved claims.

[3] The Agency will address the following issues:

• Did Corsair properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No.SS-1 Containing Local and Joint Rules, Fares and Charges On Behalf of [C]Corsair C/O/B Corsair International Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Area 2, NTA 507 (Tariff), regarding baggage, as required by subsection 110(4) of the ATR?

• If Corsair 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 Corsair did not properly apply the terms and conditions of carriage set out in its Tariff regarding baggage and orders Corsair to pay compensation in the amount of CAD 1355 to Ms. Cissé. Corsair is to pay this amount to Ms. Cissé as soon as possible and no later than July 15, 2021.

BACKGROUND

[5] Ms. Cissé purchased a ticket that included an initial flight from Paris to Abidjan on June 30, 2019, and flights from Abidjan to Montréal via Paris on July 6 and 7, 2019.

[6] On July 7, upon her arrival at the Montréal airport, Ms. Cissé could not find her piece of baggage, and filed a “Property Irregularity Report” with Corsair. Her piece of baggage was never found.

PRELIMINARY MATTERS

[7] Ms. Cissé seeks compensation in the amount of CAD 300 for moral damages for stress caused by unresolved claims.

[8] The Agency does not have authority to order compensation for pain and suffering. It is a creature of statute and can only award compensation within the scope of its authority under the Canada Transportation Act, SC 1996, c 10.

[9] Accordingly, the Agency will not consider this issue.

THE LAW AND RELEVANT TARIFF PROVISIONS

[10] 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.

[11] If the Agency finds that a 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.

[12] Rule 55(C) of Corsair’s Tariff incorporates by reference theConvention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention(Montreal Convention).

[13] Article 17(2) of the Montreal Convention states that an air carrier is liable for the loss of baggage in its charge.

[14] Article 17(3) of the Montreal Convention states that the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage if the checked baggage has not arrived at its destination at the expiration of twenty-one days after the date on which it ought to have arrived.

[15] Article 22(2) of the Montreal Convention also establishes that the carrier’s liability is limited to 1 131 Special Drawing Rights for each passenger in the case of destruction, loss, damage or delay of baggage.

[16] The relevant provisions of Corsair’s Tariff and the Montreal Convention are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Cissé

[17] Ms. Cissé states that she filed a claim on July 13, 2019, on Corsair’s website as she had not heard from Corsair regarding the “Property Irregularity Report” she filled out at the airport. She stated that she received an acknowledgement of receipt of this claim on July 16, 2019.

[18] According to Ms. Cissé, this and all subsequent requests were closed without action by Corsair.

[19] Ms. Cissé states that Corsair employees asked her to describe the piece of baggage and its contents, which she did, but that she did not hear from them afterwards.

[20] Ms. Cissé seeks residual compensation in the amount of CAD 1355.00, consisting of CAD 100.00 for telephone calls and CAD 1255.00 for the contents of her lost baggage, broken down as follows:

• CAD 300.00 for loincloth clothing
• CAD 130.00 for a loincloth outfit
• CAD 150.00 for traditional clothing for her children
• CAD 100.00 for prayer clothes for her children and herself
• CAD 300.00 for hair extensions and wigs
• CAD 50.00 for “attieke”
• CAD 50.00 for “placaly”
• CAD 150.00 for shoes
• CAD 25.00 for kaolin

[21] Ms. Cissé states that she had owned many of the items in her baggage for a long time and that she did not keep the receipts for them. She adds that she also did not keep receipts for the items she purchased during her trip because she could not have imagined that her piece of baggage would not have arrived in Montréal.

Corsair

[22] Corsair argues that it processed Ms. Cissé’s request in accordance with its policy and that it did so within a reasonable time.

[23] Corsair states that Ms. Cissé did not file the mandatory documents that Corsair’s Customer Service Department asked her to provide in order to process her claim, in particular a detailed description of the baggage and a detailed inventory of the baggage. It filed as evidence the email exchanges with Ms. Cissé.

[24] Corsair states that Ms. Cissé did not provide proof of the contents of the piece of baggage and offered her compensation in the amount of 200 euros.

ANALYSIS AND DETERMINATIONS

[25] 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.

[26] The Agency finds that Ms. Cissé’s baggage was lost while in the care and control of Corsair, which gives rise to carrier liability within the meaning of Article 17(2) of the Montreal Convention. Therefore, according to Corsair’s Tariff, which incorporates the Montreal Convention, Ms. Cissé is entitled to reimbursement for the value of the items contained in her lost baggage, within the limits provided by law.

[27] As stated in previous decisions, including Decision No. 308-C-A-2010 (MacGillivray v Cubana de Aviacion S.A.), it is the Agency’s opinion that a party, in endeavouring to prove a fact on the balance of probabilities, 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. Furthermore, the Agency notes that Article 22(1) of the Montreal Convention does not require proof of loss in the form of receipts of purchase.

[28] Ms. Cissé seeks CAD 1255 for the contents of her lost piece of baggage. Although Ms. Cissé has not provided receipts to support the amounts claimed, she has provided a detailed inventory of items with approximate values. The Agency finds that the value claimed for the contents of the lost piece of baggage, CAD 1255, is reasonable given the nature of the items.

[29] Furthermore, the Agency considers that the expense of CAD 100 claimed by Ms. Cissé to make several telephone calls to Paris is reasonable and that this expense constitutes damage suffered by Ms. Cissé as a result of the delay and loss of her baggage.

[30] Therefore, the Agency finds that Ms. Cissé has proven the reasonableness of her claim. Because her claim does not exceed the limit of 1 131 Special Drawing Rights under the Montreal Convention, the Agency finds that Ms. Cissé is entitled to compensation in the amount of CAD 1355.

CONCLUSION

[31] In light of the above, the Agency finds that by failing to compensate Ms. Cissé for the loss of her piece of baggage, Corsair did not properly apply the terms and conditions set out in Rule 55(C) of its Tariff with respect to carrier liability for baggage, as required by subsection 110(4) of the ATR.

ORDER

[32] Accordingly, pursuant to section 113.1 of the ATR, the Agency orders Corsair to pay compensation to Ms. Cissé in the amount of CAD 1,355.00. Corsair is to pay this amount to Ms. Cissé as soon as possible and no later than July 15, 2021.

---

APPENDIX TO DECISION NO. 45-C-A-2021

International Passenger Rules and Fares Tariff No. SS-1 Containing Local and Joint Rules, Fares and Charges On Behalf of [C]Corsair C/O/B Corsair International Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Area 2, NTA 507

RULE 55 — LIABILITY OF CARRIERS

…

(C)  LIMITATION OF LIABILITY

Except as the Convention or other applicable law may otherwise require:

For travel governed by the Montreal Convention

For the purpose of International Carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorportation herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

 Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

 Article 17 — Death and Injury of Passengers — Damage to Baggage

 …

2 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.

3 If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

…

Article 22 — Limits of Liability in Relation to Delay, Baggage and Cargo

1 In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.

2 In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 131 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.