Decision No. 646-C-A-2003

November 18, 2003

File No. M4370/A896/01-4

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COMPLAINT

On November 20, 2001, Katrine Plotnikova on behalf of her mother, Taissia Nekrassova, filed with the Air Travel Complaints Commissioner (hereinafter the Commissioner) the complaint set out in the title.

On February 25, 2003, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration, as the complaint raised a tariff issue that falls within the jurisdiction of the Agency.

By Decision No. LET-C-A-64-2003 dated March 14, 2003, Mrs. Plotnikova was requested to confirm, within ten (10) days from receipt of the Decision, whether or not she wished to pursue the matter formally before the Agency and whether or not she agreed to have the comments that she filed with the Commissioner considered as pleadings before the Agency. Further, Aeroflot-Russian Airlines (hereinafter Aeroflot) was advised to address the complaint within the context of subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

On March 28, 2003, Mrs. Plotnikova agreed to pursue the matter formally before the Agency and accepted that the Agency consider the comments that she filed with the Commissioner as pleadings before the Agency. On the same day, the Agency forwarded a copy of Mrs. Plotnikova's consent agreement to Aeroflot, asking it to confirm whether or not it agreed to have the comments it filed before the Commissioner considered as pleadings before the Agency. While Aeroflot did file a submission with the Agency on June 30, 2003, the carrier did not respond to the Agency's request.

PRELIMINARY MATTER

Although Aeroflot did not respond to the Agency's request to either agree to have the comments it filed before the Commissioner considered as pleadings before the Agency or to file an answer to Mrs. Plotnikova's complaint, the Agency refers to subsection 46(4) of the National Transportation Agency General Rules, SOR/88-23, which provides as follows:

Where a respondent does not file and serve the answer within the time limit referred to in subsection (1), the Agency may dispose of the application without further notice to the respondent.

Accordingly, the Agency will process this complaint without further notice to Aeroflot.

ISSUE

The issue to be addressed is whether Aeroflot has applied the terms and conditions relating to the limitations of liability for checked baggage specified in its International Passenger Rules and Fares Tariff, as required by subsection 110(4) of the ATR.

FACTS

On July 6, 2001, Mrs. Nekrassova travelled from Toronto, Ontario, Canada to Moscow, Russia on Aeroflot's Flight No. SU304. Upon arrival of her flight in Moscow, she discovered that the suitcase that she had checked with Aeroflot in Toronto was missing. According to Mrs. Nekrassova's baggage tag, the weight of her missing suitcase was 10 kilograms.

On the same day, Mrs. Nekrassova filed a missing baggage report (Reference Number SVOSU71811) with Aeroflot in Moscow. Regular contact with Aeroflot was maintained by Mrs. Nekrassova throughout her stay in Moscow. However, the missing suitcase was not located during her stay in Moscow.

On August 9, 2001, Aeroflot requested that Mrs. Nekrassova submit a claim with a list of the items contained in her missing suitcase.

On September 16, 2001, just prior to her departure from Moscow, Mrs. Nekrassova visited Aeroflot's lost and found area at the Sheremetyevo Airport in an attempt to locate her suitcase. The missing baggage was not found at that time, nor has it been located to date.

In early January 2002, Mrs. Plotnikova submitted to Aeroflot all of the documents and information requested by the carrier.

On March 5, 2002, Aeroflot confirmed receiving the requested documentation and stated that Mrs. Nekrassova's claim was being processed by its Moscow claims office and that a resolution would be forthcoming.

On October 11, 2002, Aeroflot's Toronto office stated that no compensation would be forthcoming without the original Property Irregularity Report.

POSITIONS OF THE PARTIES

Mrs. Nekrassova submits that on her arrival in Moscow on Aeroflot's Flight No. SU304 on July 7, 2001, her checked baggage was missing. She states that she immediately reported the incident to Aeroflot airport personnel and was advised that her claim was recorded as Reference Number SVOSU71811. Mrs. Nekrassova asserts that she was not provided with a copy of a Property Irregularity Report by Aeroflot.

Mrs. Plotnikova states that she forwarded all requested documentation to Aeroflot's Toronto office in early January 2002, which documentation included the following:

• Original baggage tag,
• Original passenger ticket,
• Correspondence stating a claim for compensation,
• List of items contained in the missing baggage.

Mrs. Plotnikova indicates that she received calls from Aeroflot questioning the authenticity of Mrs. Nekrassova's claim for the items and valuables contained in the missing baggage and requesting a Property Irregularity Report, despite repeated statements that her mother was not provided with such a document.

Aeroflot acknowledges that Mrs. Nekrassova filed a missing baggage report in Moscow on July 7, 2001, and that she received confirmation of such, when she was advised that her claim was recorded as Reference Number SVOSU71811. The carrier states that extensive tracing activity took place in Moscow up until Mrs. Nekrassova's departure from Moscow on September 16, 2001, on which occasion, she visited the Moscow's airport lost and found area in an attempt to locate her missing luggage. Aeroflot's Toronto office states that it was not contacted by, nor had it received any claim or list of contents from either Mrs. Nekrassova or her daughter. Aeroflot also states that it would update the search with the international airline baggage tracing system.

Aeroflot advises that without the Property Irregularity Report issued to Mrs. Nekrassova at the Moscow airport on July 7, 2001, no compensation would be considered.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties before the Commissioner. The Agency has also reviewed the pertinent provisions of the carrier's International Passenger Rules and Fares Tariff on file with the Agency, effective on the actual date of the incident.

A number of legislative provisions in effect at the time of the incident are relevant to the present analysis.

Section 110 of the ATR provides, in part, that:

110.(1) Except as provided in an international agreement, convention or arrangement respecting civil aviation, before commencing the operation of an international service, an air carrier or its agent shall file with the Agency a tariff for that service, including the terms and conditions of free and reduced rate transportation for that service, in the style, and containing the information, required by this Division.

(2) Acceptance by the Agency of a tariff or an amendment to a tariff does not constitute approval of any of its provisions, unless the tariff has been filed pursuant to an order of the Agency.

...

(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. [emphasis added]

Further, section 113.1 of the ATR states that:

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.

Subparagraph 122(c)(x) of the ATR provides as follows:

122. Every tariff shall contain

...

(c) the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely,

...

(x) limits of liability respecting passengers and goods,

Consequently, upon receipt of a consumer's complaint, the Agency, pursuant to subection 110(4) of the ATR, has inter alia the mandate to determine whether the air carrier has applied the terms and conditions of carriage specified in its tariff.

The following are excerpts from Aeroflot's International Passenger Rules and Fares Tariff, NTA(A) No. 210, on file with the Agency and in effect at the time of the incident:

Rule 55(C)(3)(b) - Limitation of Liability

Any liability of carrier is limited to $20.00 (250 French gold francs, consisting of 65 ½ milligrams of gold with a fineness of nine hundred thousandths) per kilogram in the case of checked baggage and $400.00 (5,000 French gold francs) 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 regulation. In that event the liability of the 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.

Rule 55(D) - Time Limitations on Claims and Actions

No action shall lie in the case of damage to baggage unless the person entitled to delivery complains to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt; and in the case of delay, or loss, complaint must be made at the latest within 21 days from the date on which the baggage has been placed at his disposal (in the case of delay), or should have been placed at his disposal (in the case of loss). Every complaint must be made in writing and dispatched within the time aforesaid....

Notwithstanding Mrs. Nekrassova's inability to produce a Property Irregularity Report, the issuance of which she disputes, there is ample evidence to substantiate her claim that her suitcase was lost while in the care and safe-keeping of Aeroflot. The carrier has acknowledged a specific time and place at which the claim was made; has provided a file number for that claim; has recorded that the complainant's checked baggage weighed 10 kilograms; and has confirmed in writing its numerous attempts to trace the reported missing baggage.

The Agency notes that Rule 55(C)(3)(b) of the carrier's International Passenger Rules and Fares Tariff specifies that all claims are subject to proof of loss. The Agency also notes that under this Rule, Aeroflot's liability is limited to USD $20 per kilogram, i.e., a total of USD $200 in the case at hand. The Agency therefore interprets this Rule as stating that Mrs. Nekrassova must provide adequate evidence, based on a balance of probabilities, that there was at least USD $200 worth of goods in her baggage. Given this very low threshold, combined with the duration of Mrs. Nekrassova's stay in Moscow and the weight of her missing baggage, the Agency concludes that there is adequate evidence to conclude that there was at least USD $200 worth of goods in the missing baggage.

The Agency finds that Mrs. Nekrassova has met the requirements for compensation set out in Aeroflot's tariff, in that she has shown that she complained to the carrier on the same day that she lost her baggage and that her lost baggage contained at least USD $200 worth of goods.

CONCLUSION

Based on the above findings, the Agency concludes that Aeroflot has not applied the terms and conditions specified in its International Passenger Rules and Fares Tariff, relating to the limitations of liability for checked baggage, as required by subsection 110(4) of the ATR. Accordingly, the Agency hereby orders Aeroflot, pursuant to section 113.1 of the ATR, to pay Mrs. Nekrassova USD $200.00 forthwith.