Decision No. 51-C-A-2018

SUMMARY

[1] Tripat Kapur filed an application with the Canadian Transportation Agency (Agency) against Jet Airways regarding damage incurred to his baggage, and to certain items that it contained (items), when travelling from Delhi, India, to Calgary, via Toronto on January 24, 2017. In addition, Mr. Kapur argues that he was sold a “misleading ticket” on his return itinerary. Specifically, his ticket itinerary for Flight No. 234 from Delhi to Toronto did not indicate any layover; however, the flight had a layover in Amsterdam, Netherlands.

[2] Mr. Kapur is seeking compensation in the amount of CAN$2,225.78 broken down as follows: CAN$495 for the value of his damaged baggage and items, and a refund of CAN$1,730.78 for the amount that he paid for his ticket.

[3] The Agency will address the following issues:

1. Did Jet Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff) regarding damage baggage, which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), by not compensating Mr. Kapur as required by Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Jet Airways did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Kapur?
2. Did Jet Airways properly apply the terms and conditions set out in Rule 65(B)(1) of its Tariff, as required by subsection 110(4) of the ATR? If Jet Airways did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Kapur?

[4] For the reasons set out below, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rules 55(C)(18) and 65(B)(1) of its Tariff. The Agency orders Jet Airways to compensate Mr. Kapur in the amount of CAN$495. This amount is to be paid as soon as possible, and no later than September 7, 2018.

BACKGROUND

[5] Mr. Kapur booked, through Flight Hub, an agent of Jet Airways, a round trip ticket from Calgary, to Delhi, departing on January 13, 2017 and returning on January 24, 2017. His return ticket itinerary was Delhi to Toronto, and then Toronto to Calgary. Upon arrival at the Indira Gandhi International Airport (airport), Mr. Kapur received three boarding passes for: Flight No. 234 from Delhi to Amsterdam, Flight No. 234 from Amsterdam to Toronto, and Flight No. 125 from Toronto to Calgary. Mr. Kapur’s flight from Delhi to Toronto was routed through Amsterdam.

[6] Furthermore, Mr. Kapur states that when he arrived in Calgary, his baggage was delayed by a day. Upon receiving his baggage, he found that both his baggage and items were damaged. Mr. Kapur contacted Jet Airways on January 30, 2017 and requested compensation for the items and his damaged baggage. To substantiate his claim, Mr. Kapur provided Jet Airways with pictures of his damaged baggage and items.

PRELIMINARY MATTER

[7] Pursuant to section 113.1 of the ATR, the Agency’s mandate is to ensure that carriers apply the terms and conditions set out in their tariffs, and to order compensation for any expenses incurred by a person adversely affected by its failure to do so.

Compensation for pain and suffering

[8] In his application, Mr. Kapur asks to be compensated for the inconvenience and stress that he suffered as a result of his travel experience. The Agency does not have jurisdiction to order compensation for inconvenience, pain, or suffering, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 103-C-A-2017 (Chowdhury v. Turkish Airlines). Therefore, the Agency cannot hear Mr. Kapur’s claim for compensation with respect to inconvenience and stress.

THE LAW

[9] Subsection 110(4) of the ATR requires that a carrier operating an international service properly apply the terms and conditions of carriage set out in its tariff.

[10] 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:

1. 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.

[11] Rule 65(B)(1) of Jet Airway’s tariff, regarding the validity for carriage, states:

When validated, the ticket is good for carriage from the airport at the place of departure to the airport at the place of destination via the route shown therein and for the applicable class of service[…].

[12] Rule 55(C)(18) of Jet Airway’s tariff incorporates by reference the Montreal Convention and states:

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.

[13] Article 17(2) of the Montreal Convention sets out the carrier’s liability in case of destruction, loss of, or damage to checked baggage:

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.

[14] Article 22(2) of the Montreal Convention sets out the carrier’s limits of liability in relation to loss, delay, destruction, or damage to 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 1,131 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.

[15] Article 31(2) of the Montreal Convention sets out the time limits for an applicant to file a damaged baggage complaint:

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 and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

DID JET AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF REGARDING DAMAGE BAGGAGE, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION BY NOT COMPENSATING MR. KAPUR AS REQUIRED BY ARTICLE 17(2) OF THE MONTREAL CONVENTION, THEREBY CONTRAVENING SUBSECTION 110(4) OF THE ATR? IF JET AIRWAYS DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. KAPUR?

Positions of the parties and findings of fact

MR. KAPUR’S POSITION

[16] On January 30, 2017, Mr. Kapur filed a claim with Jet Airways explaining that his baggage and items were damaged during his return flights.

[17] In his application filed with the Agency, Mr. Kapur is seeking compensation in the amount of CAN$495. Mr. Kapur breaks down the compensation as follows: CAN$120 for the cost of his damaged baggage, and CAN$375 for the following items: a set of crystal ice-cream bowls (CAN$100), a bone china miniature tea set (CAN$75), and a dinner set (CAN$200). With respect to the damaged baggage, Mr. Kapur submits that he does not have a receipt, but that the amount sought is based on a minimum market price. With respect to the items, Mr. Kapur claims that the items were gifts and therefore he does not have the receipts.

JET AIRWAYS’ POSITION

[18] On March 15, 2018, the Agency opened pleadings and directed Jet Airways to file its answer by April 9, 2018. However, Jet Airways failed to file an answer to Mr. Kapur’s application.

FINDINGS OF FACT

[19] It is uncontested that Mr. Kapur’s baggage and items in the baggage were damaged while under Jet Airways’ care and control after being checked in by Mr. Kapur. It is also uncontested that Mr. Kapur contacted Jet Airways seeking compensation for his damaged baggage and items on January 30, 2017.

ANALYSIS AND DETERMINATIONS

[20] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions set out in its tariff.

[21] With respect to damaged baggage, Rule 55(C)(18) of Jet Airways’ Tariff incorporates by reference the liability rules set out in the Montreal Convention.  

[22] Article 17(2) of the Montreal Convention states that a carrier is liable for lost and damaged baggage if the event that caused the 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. As Mr. Kapur’s baggage was under the care and control of Jet Airways when his baggage and the items were damaged, the Agency finds that Jet Airways is liable under Article 17(2) of the Montreal Convention for the damage.

[23] Article 31(2) of the Montreal Convention sets out the requirements for an applicant to file a damaged baggage complaint. A complaint must be made at the latest within seven days of receiving the baggage, and every complaint must be made in writing. Mr. Kapur informed Jet Airways of his damaged baggage and items by e-mail on January 30, 2017, six days after receiving his baggage. Therefore, the Agency finds that he has satisfied the requirements of Article 31(2) of the Montreal Convention.

[24] Mr. Kapur did not provide any receipts to substantiate his claim for compensation. The Agency notes 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 support proof of loss, circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate. In this case, the Agency finds that Mr. Kapur’s claim that he does not have receipts to substantiate that his claim is reasonable because the compensation sought relates to gifts and a previously purchased baggage.

[25] Mr. Kapur is seeking compensation in the amount of CAN$495 for his damaged baggage and items. Article 22(2) of the Montreal Convention limits the liability of the carrier in the case of destruction, loss, damage or delay of baggage to 1,131 Special Drawing Rights for each passenger (the equivalent of CAN$2,056.56). Therefore, Mr. Kapur’s claim for compensation may be granted in full.

[26] Based on the above, the Agency finds that Jet Airways, in not compensating Mr. Kapur, failed to apply the terms and conditions set out in Rule 55(C)(18) of its Tariff, which incorporates by reference the Montreal Convention, and therefore contravened subsection 110(4) of the ATR. Accordingly, the Agency finds that Mr. Kapur is entitled to compensation in the amount of CAN $495 for his damaged baggage and items.

DID JET AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 65(B)(1) OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF JET AIRWAYS DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. KAPUR?

Positions of the parties and findings of fact

MR. KAPUR’S POSITION

[27] Mr. Kapur states that his return ticket itinerary shows that he booked direct flights from Delhi to Toronto, and from Toronto to Calgary. However, Mr. Kapur claims that when he arrived at the airport, he was issued three boarding passes: for Delhi to Amsterdam, for Amsterdam to Toronto, and for Toronto to Calgary. Mr. Kapur submits that when he discussed the layover in Amsterdam with Jet Airways staff at the airport, they seemed unbothered by it, implying that the extra stop was a standard practice. Mr. Kapur argues that had he known that his flight from Delhi to Toronto was non-direct, he would not have booked his trip with Jet Airways, pointing out that there were cheaper options with non-direct flights to Toronto. Mr. Kapur is seeking a refund of CAN$1,730.78 for the amount that he paid for his ticket.  

JET AIRWAYS’ POSITION

[28] On March 15, 2018, the Agency opened pleadings and directed Jet Airways to file its answer by April 9, 2018. However, Jet Airways failed to file an answer to Mr. Kapur’s application.

FINDINGS OF FACT

[29] It is uncontested that on January 24, 2017, Flight No. 234 from Delhi to Toronto did not operate as a direct flight.

ANALYSIS AND DETERMINATIONS

[30] Rule 65(B) of Jet Airways’ tariff states, with respect to a ticket’s validity for carriage, that a ticket is good for carriage from the airport at the place of departure to the airport at the place of destination via the route shown therein.

[31] Mr. Kapur’s ticket itinerary lists two flights: one from Delhi to Toronto, and one from Toronto to Calgary. The ticket itinerary shows that Flight No. 234 from Delhi to Toronto is a direct flight, and does not list Amsterdam as a stop. However, according to the evidence provided by Mr. Kapur, Flight No. 234 operated with an unadvertised layover on January 24, 2017.

[32] Rule 65(B) of Jet Airways’ Tariff requires that Jet Airways ensure, when marketing a particular air service, that the tickets sold reflect the actual itinerary, including any layovers. In this case, the evidence indicates that Jet Airways did not operate its flight from the airport at the place of departure to the airport at the place of destination via the route shown on the ticket itinerary.

[33] Based on the above, the Agency finds that Jet Airways failed to apply the terms and conditions set out in Rule 65(B)(1) of its Tariff, and therefore contravened subsection 110(4) of the ATR. In cases where the carrier is in contravention of its tariff, the Agency’s authority to award compensation to an individual traveller is limited to expenses. However, Mr. Kapur has not made any arguments nor presented any evidence to indicate that he is seeking to recover out-of-pocket costs. As a result, the Agency cannot award any compensation to Mr. Kapur with respect to this particular issue.

ORDER

[34] The Agency orders Jet Airways to compensate Mr. Kapur in the amount of CAN$495 as soon as possible. This amount is to be paid as soon as possible, and no later than September 7, 2018.