Decision No. 525-C-A-2007

October 23, 2007

File No. M4120-3/07-03287

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COMPLAINT

[1] On April 7, 2006, Rudolf Fernandes filed with the Complaint Investigations Division (hereinafter CID) the complaint set out in the title. The parties were unable to reach a satisfactory agreement despite the intervention of CID. Mr. Fernandes then requested that the matter be referred to the Canadian Transportation Agency's (hereinafter the Agency) formal process. The matter was referred to the Agency for its consideration on May 16, 2007.

[2] On June 8, 2007, Mr. Fernandes provided additional information regarding his complaint.

[3] On June 22, 2007, both Mr. Fernandes and Aeroflot - Russian Airlines (hereinafter Aeroflot) were advised of the Agency's jurisdiction in this matter. The parties were also requested to advise whether they agreed to have the comments and documents they had filed with CID considered as pleadings before the Agency. On the same date, Mr. Fernandes agreed to have the documents and comments he had previously filed with CID considered as pleadings before the Agency, and on July 9, 2007, Aeroflot gave its consent.

[4] On July 6, 2007, Aeroflot filed its answer to the complaint and on the same day, Mr. Fernandes filed his reply.

[5] In Decision No. LET-C-A-141-2007 dated July 31, 2007, the Agency requested additional information from Aeroflot. On August 13, 2007, Aeroflot filed its response and Mr. Fernandes filed additional comments. On August 15, 2007, Aeroflot filed additional comments. On September 5, 2007, Aeroflot was asked to provide the Agency with the information requested in Decision No. LET-C-A-141-2007. On September 12, 2007, Aeroflot filed its reply.

[6] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until October 23, 2007.

PRELIMINARY MATTER

[7] Although Mr. Fernandes and Aeroflot filed additional comments that had not been requested by the Agency, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts them as being relevant and necessary to its consideration of this matter.

ISSUES

[8] The issues to be addressed are whether the Montreal Convention or the Warsaw Convention apply in this matter, and whether Aeroflot applied the terms and conditions relating to the limitations of liability for checked baggage specified in the International Passenger Rules and Fares Tariff No. IPG-1, NTA(A) No. 324 (hereinafter the Tariff), in which Aeroflot is a participant, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

FACTS

[9] On December 19, 2005, Mr. Fernandes and his two children travelled with Aeroflot from Toronto, Ontario, Canada to Mumbai, India via Moscow, Russia. In Mumbai, Mr. Fernandes filled out a Property Irregularity Report (hereinafter PIR) regarding a piece of baggage that he claims was missing. Mr. Fernandes filed an itemized list with Aeroflot. Aeroflot denied Mr. Fernandes' claim for compensation.

POSITIONS OF THE PARTIES

[10] Mr. Fernandes submits that the content of the missing suitcase consisted of personal items totalling $710. He advises that he and his children checked in three pieces of baggage and carried three other pieces of hand baggage on board the aircraft. Mr. Fernandes adds that a tweed, zippered type bag with wheels and straps weighing approximately 10 kilograms was missing. He explains that on arrival, the checked baggage is usually not weighed by the carrier except if a piece of checked baggage is allegedly missing. He adds that, in his case, when the Aeroflot staff members in Mumbai created the PIR, they weighed all of his baggage, including his carry-on baggage. Mr. Fernandes points out that Aeroflot does not provide the passenger with a record of the weight of the checked baggage either at check-in or when a PIR is prepared. Mr. Fernandes refutes Aeroflot's contention that the missing piece of baggage is in his possession and adds that the reason why Aeroflot created a PIR on arrival in Mumbai is that one piece of his checked baggage was missing.

[11] In support of his complaint, Mr. Fernandes provided copies of his correspondence with Aeroflot, the PIR issued for the missing bag, his and his children's airline tickets, a list of the missing items, receipts for some of the replacement items he purchased and a sworn affidavit attesting that he checked three pieces of baggage in Toronto and that a piece of baggage was missing in Mumbai.

[12] Aeroflot states that the PIR shows that the total weight of the bags checked in Toronto by the Fernandes family was 78 kilograms and that the total weight of the bags they received in Mumbai was 80 kilograms. Aeroflot advises that the weight of the delivered baggage is recorded at the time of the issuance of the PIR in the presence of the passenger and submits that the difference of 2 kilograms is attributed to the discrepancy between the scales in Toronto and Mumbai. Aeroflot submits that the PIR confirms that the Fernandes family received three pieces of checked baggage. Aeroflot adds that it has no record of the disposition of Mr. Fernandes' missing bag and maintains that it is in Mr. Fernandes' possession. Aeroflot advises that the carrier weighs carry-on baggage at check-in solely for security and allowance eligibility purposes, that carry-on baggage remains the full responsibility of the passenger, that the weight of carry-on baggage is not included in the weight of the checked baggage and that carry-on baggage is not weighed upon arrival at destination. Aeroflot claims that the list of the missing items filed by Mr. Fernandes is vague, that its tariff provides that all claims are subject to proof of the amount of the loss, and that Mr. Fernandes failed to substantiate his loss.

[13] Aeroflot submits that its tariff provides that, in the event of delivery to the passenger of part but not all of his checked baggage, the liability of the carrier with respect to the undelivered portion shall be set proportionally on the basis of weight, notwithstanding the value of any part of the baggage or contents thereof. Aeroflot advises that it is dismissing Mr. Fernandes' claim as he collected 80 kilograms of checked baggage in Mumbai. Aeroflot points out that the PIR only mentions an irregularity reported by a passenger and does not involve any acknowledgement of liability of the carrier.

[14] Furthermore, Aeroflot states that, as it is a carrier of the Russian Federation and as the Russian Federation has not signed the Montreal Convention, the Warsaw Convention applies in this case. Aeroflot adds that, for international travel, it settles claims for lost and/or delay of baggage in accordance with the rules of the Warsaw Convention.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[15] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and sections 113 and 113.1 of the ATR, which provide:

110(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

113. The Agency may

(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and

(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

113.1 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

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

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

Montreal Convention

[16] The provisions of the Montreal Convention that are relevant to this matter, Articles 1(2), 22(2) and 26, provide:

Article 1 - Scope of Application

2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

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

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 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.

Article 26 - Invalidity of Contractual Provisions

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

APPLICABLE TARIFF PROVISION IN EFFECT AT THE TIME OF THE INCIDENT

[17] Rule 55 (D)(7) of the Tariff, Limitation of Liability, provides that:

Any liability of carrier is limited to 250 French Gold Francs, USD 20.00, CAD 20.00, per kilogram in the case of checked baggage, and 5,000 French Gold Francs, USD 400.00, CAD 400.00, per passenger in the case of unchecked baggage or other property, unless a higher value is declared in advance and additional charges are paid pursuant to carrier's tariff. In that event, the liability of carrier shall be limited to such higher declared value. In no case shall the carrier's liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.

ANALYSIS AND FINDINGS

[18] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the relevant provisions of Aeroflot's tariff in effect at the time of the incident, as well as those of the Montreal Convention, which has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26.

1) Applicability of the Montreal Convention or the Warsaw Convention

[19] Aeroflot stated that the Russian Federation is not a signatory to the Montreal Convention, and that, as Aeroflot is a Russian carrier, it is subject only to the provisions of the Warsaw Convention, to which the Russian Federation is a signatory.

[20] In Decision No. 328-C-A-2007 dated June 26, 2007 respecting a complaint regarding the compensation offered by Aeroflot for the delay in delivery of checked baggage, the Agency determined that in the event that travel originates in Canada, and is round-trip in nature, the Montreal Convention applies. The Agency also determined that the part of Rule 55(D)(7) of the Tariff that sets out Aeroflot's limits of liability, as they relate to international carriage governed by the Montreal Convention, is null and void, pursuant to Article 26 of the Montreal Convention. This determination was made as that part of the Rule fixes a lower limit than that which is laid down in the Montreal Convention. Accordingly, the Agency disallowed the aforementioned part of Rule 55(D)(7) of Aeroflot's Tariff as being unjust and unreasonable, contrary to subsection 111(1) of the ATR.

[21] The Agency has reviewed the tickets used by Mr. Fernandes and his family and notes that both the place of departure and the place of destination for their travel are located in Canada, a signatory to the Montreal Convention. Therefore, on the basis of Article 1(2) of the Montreal Convention, as stated above, the Agency finds that the Montreal Convention applies to the present case.

2) Claim for compensation

[22] Mr. Fernandes filed a sworn affidavit signed on April 26, 2007 asserting that he checked three pieces of baggage with Aeroflot in Toronto. On June 8, 2007, he submitted that he was reasonably certain that he checked in three pieces of baggage and that he and his children had three other pieces of hand baggage that they carried with them on board the aircraft. Mr. Fernandes also stated that on arrival in Mumbai, a tweed, zippered type bag with wheels and straps was missing.

[23] Mr. Fernandes did not confirm to the Agency in any of his submissions the number of pieces of baggage he received from Aeroflot upon his arrival in Mumbai.

[24] Aeroflot submitted that on arrival in Mumbai, Mr. Fernandes and his family received three pieces of checked baggage weighing 80 kilograms. Aeroflot filed a copy of Mr. Fernandes' PIR and a copy of the World Tracer Management Report indicating that Mr. Fernandes received three pieces of checked baggage on arrival in Mumbai.

[25] In light of the evidence on file, it appears that Mr. Fernandes received the same number of pieces of checked baggage in Mumbai that he checked in at Toronto.

[26] In light of the foregoing, the Agency finds that Mr. Fernandes failed to provide the Agency with any conclusive evidence that one piece of his checked baggage was missing on his arrival in Mumbai.

CONCLUSION

[27] Based on the foregoing, the Agency hereby dismisses the complaint.

Members

• Raymon J. Kaduck
• Geoffrey C. Hare