Decision No. 68-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding their delayed baggage claim.

[2] The applicants have requested at least CAD 9,000 in compensation for their ruined vacation and the refusal of the carrier to provide services they were supposed to receive, including the use of a bassinet that they had requested.

[3] The applicants claim the following expenses:

• CAD 120 – 8 trips to the airport by taxi to get updates on their claim and the report;
• CAD 350 – emergency supplies for the infant;
• CAD 500 – replacement personal items, such as toothbrushes, toothpaste, perfume, socks, underwear and other personal items;
• CAD 3,000 – replacement gifts for family and friend(s);
• CAD 1,400 – cost of the 7-day stay in a hotel in Kathmandu, Nepal;
• CAD 850 – breakfasts, lunches, dinners, and snacks for the 7-day stay in Kathmandu; and
• CAD 488 – flight to the applicants’ hometown.

[4] The Agency will address the following issues:

• Did the respondent properly apply Rule 55 of its International Passenger Rules and Fares Tariff No. WY-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Oman Air Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Area 2, NTA(A) No. 560 (Tariff), with regard to flight delays and cancellations, as required by subsection 110(4) of the ATR?
• If Oman Air did not properly apply the Tariff, what remedy, if any, should be ordered?

[5] For the reasons set out below, the Agency finds that the respondent did not properly apply Rule 55 of the Tariff by failing to compensate the applicants for their reasonable expenses. Consequently, the Agency orders the respondent to compensate the applicants in the amount of CAD 850 as soon as possible and no later than September 1, 2020.

BACKGROUND

[6] The applicants travelled on round-trip interline tickets from Ottawa, Ontario, to Kathmandu, via London, United Kingdom, and Muscat, Oman, departing on October 6, 2018, and arriving on October 8, 2018. The travel began on an Air Canada flight and connected to the respondent’s flight in London.

[7] The applicants’ baggage was delayed on the outbound portion of the itinerary. The applicants made a baggage claim in writing to the respondent upon their arrival in Kathmandu. They received their baggage 45 days later, prior to their scheduled return to Canada. The return portion of the itinerary was scheduled to begin on December 5, 2018.

PRELIMINARY MATTERS

Authority to order compensation

[8] The applicants have requested compensation for their ruined vacation and the inconvenience that they experienced by not receiving services that they were supposed to, such as the use of a bassinet. These services do not appear to be related to any specific Tariff obligations.

[9] Past decisions of the Agency have found that, pursuant to section 113.1 of the ATR, the Agency may only award compensation to a passenger for expenses incurred directly from a carrier’s failure to properly apply the terms and conditions of carriage set out in its tariff, as indicated in Decision No. 185-C-A-2003 (Yehia v Air Canada) and in Decision No. 18‑C-A-2015 (Enisz v Air Canada). The Agency does not have the jurisdiction to order compensation for pain and suffering in respect of cases involving alleged contraventions of carriers’ tariff-related obligations.

Carrier’s failure to respond

[10] The Agency’s letter opening pleadings (Letter) on this application was issued on January 6, 2020, with the respondent’s answer to the application due on January 27, 2020. The Letter was resent to the respondent on January 22, 2020, and an acknowledgement of receipt was received from this e-mail address. At the request of the respondent, the Letter was also sent to a second e-mail address on January 23, 2020.

[11] No answer was received from the respondent in relation to this application. As a result, pleadings closed on February 3, 2020, pursuant to paragraph 26(1)(a) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings),SOR/2014-104, and the Agency has proceeded to decide this application on the basis of the record before it.  

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[13] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the air 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.

[14] The Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) is incorporated by reference in Rule 55 of the Tariff.

[15] Article 17(2) of the Montreal Convention states:

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.

[16] However, this liability is limited to the amount set out in Article 22(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….

[17] According to Article 17(3) of the Montreal Convention, the baggage is considered lost after 21 days:

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.

[18] Article 36(3) of the Montreal Convention states:

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

[19] The relevant provisions of the respondent’s Tariff are set out in the Appendix.

POSITIONS OF PARTIES

The applicants

[20] The applicants state that they experienced communication issues with the carrier regarding the retrieval of their baggage. The applicants allege that they had to stay 7 extra days in Kathmandu in order to wait for their baggage to be returned and, consequently, had to delay travel plans to their hometown. As a result, they incurred hotel, meal and flight expenses. The applicants eventually received their baggage from the carrier after 45 days.

[21] When asked by the Agency’s Secretariat to file receipts for their expenses claimed, the applicants submitted that they do not have receipts for any of the expenses because they paid in cash for most of the expenses in Nepal. They were also unable to provide any documentation for the flight to their hometown.

The respondent

[22] The respondent did not file a response.

ANALYSIS AND DETERMINATIONS

[23] 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. As noted above, the Montreal Convention is incorporated by reference into the respondent’s Tariff in Rule 55.

[24] Although Nepal was not a signatory to the Montreal Convention at the time of the applicants’ travel, the Montreal Convention applies to this matter given that the application is in relation to a round-trip itinerary beginning and ending in Canada, which is a signatory, as set out in Decision No. 134-C-A-2009 (Maslov v Aeroflot).

[25] According to Article 17(3) of the Montreal Convention, baggage delayed over 21 days is deemed lost. Although the applicants did eventually receive their baggage from the carrier, the applicants’ baggage in this case was delayed 45 days. As a result, the Agency finds that the baggage was deemed lost on October 29, 2018,pursuant to Article 17(3).

[26] Furthermore, the applicants are entitled to reimbursement for reasonable expenses incurred as a result of delay and loss of their baggage pursuant to Article 17(2) of the Montreal Convention. According to Article 36(3), carriers in the case of interline travel are jointly and severally liable to passengers with respect to lost, damaged and delayed baggage. As a result, the applicants may seek the entirety of the baggage claim from the respondent.

[27] The onus is on the applicants to establish that expenses were incurred and that they were reasonable. The Agency is of the opinion that a party, in endeavouring 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 be considered adequate proof of loss, circumstances may render it unreasonable to require this form of proof, as indicated in Decision No. 8-C-A-2019 (Satheeswaren v Qatar Airways). In these situations, it may be unreasonable to expect that such proof is in an applicant’s possession. Other methods, such as a sworn affidavit, a declaration, or the inherent reasonableness of the expenses claimed, could, in some cases, assist in determining the validity of a claim. Furthermore, the Agency notes that the Montreal Convention does not require proof of loss in the form of receipts of purchase.

Expenses for replacement items

[28] The applicants have claimed expenses for the replacement of three types of items in their lost baggage:

• CAD 350 – emergency supplies for the infant,
• CAD 500 – replacement personal items such as toothbrushes, toothpaste, perfume, socks, underwear and other personal items; and
• CAD 3,000 – replacement gifts for family and friend(s).

[29] As noted above, the applicants submitted that they do not have receipts for any of the expenses because they paid in cash for most of their expenses in Nepal.

[30] Although the applicants have not filed receipts, the Agency is of the view that the expenses for the emergency supplies for the infant (CAD 350) and the replacement personal items (CAD 500) are reasonable under the circumstances.

[31] With respect to the replacement gifts, the applicants did not specify what the gifts were or what original items were lost. Additionally, given the high cost claimed, the Agency would expect further documentation or explanation to justify the high cost of these expenses. As a result, the Agency finds that the applicants have not established that the expenses for replacement gifts are reasonable.

Taxi expenses

[32] The applicants have claimed CAD 120 in taxi expenses for 8 trips that they claim to have made to the airport in order to follow up on their claim.

[33] The Agency is of the view that 8 trips to the airport via taxi to follow up on the claim appears to be excessive under the circumstances. The Agency also notes that the applicants provided no proof of this expense nor explanation why additional follow-up by phone was not sufficient. As a result, the Agency finds that the applicants have not met their burden of proof for this expense.

Expenses incurred due to delay of travel

[34] The remaining expenses claimed by the applicants relate to the applicants’ decision to stay an additional week in Kathmandu, delaying travel plans to their hometown in order to retrieve the baggage:

• CAD 1,400 – cost of a 7-day stay in a hotel in Kathmandu;
• CAD 850 – breakfasts, lunches, dinners, snacks for the 7-day stay in Kathmandu; and
• CAD 488 – flight to the applicants’ hometown.

[35] The Agency notes that the applicants did not provide any documentation to support that their travel was delayed, despite the follow-up from the Agency’s Secretariat. In particular, the Secretariat specifically requested that the applicants submit any information about the flight to their hometown, including “all correspondence related to this matter,” but the applicants claim to not have any documentation regarding this flight. No flight information was provided or even a destination. The Agency is also of the view that the applicants have not sufficiently justified that it was reasonable to delay their travel to wait for the baggage and to incur these significant expenses, particularly given that the applicants were able to replace necessary personal items rather than wait for those items in the original baggage and have claimed significant expenses for these replacement items.

CONCLUSION

[36] The Agency finds that the applicants did not provide sufficient evidence to substantiate their claims for hotel-, meal-, travel-, and taxi-related expenses and for cost of replacement gifts.

[37] However, the Agency finds that the applicants’ claim of CAD 850 for emergency items for the infant and replacement personal items is reasonable. As a result, the Agency finds that the respondent did not properly apply Rule 55 of its Tariff by failing to compensate the applicants for their reasonable expenses incurred as a result of their lost baggage.

ORDER

[38] The Agency orders the respondent to compensate the applicants in the amount of CAD 850 as soon as possible and no later than September 1, 2020.

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APPENDIX TO DECISION NO. 68-C-A-2020

International Passenger Rules and Fares Tariff No. WY-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Oman Air Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Area 2, NTA(A) No. 560

RULE 55 – LIABILITY OF CARRIERS

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(B) LAWS AND PROVISIONS APPLICABLE

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(4) The Carrier is liable for damages sustained in the case of destruction or loss of, damage to, or delay of checked and unchecked baggage, as provided in the following paragraphs:

(a) Except as provided below, the liability of the Carrier is limited to 1,131 Special Drawing Rights for each passenger in the case of destruction, loss, damage, or delay of baggage, whether checked or unchecked, under the Warsaw Convention or the Montreal Convention, whichever may apply. Unless the passenger proves otherwise:

(i) all baggage checked by a passenger shall be considered to be the property of that passenger;

(ii) a particular piece of baggage, checked or unchecked shall not be considered to be the property of more than one passenger; and

(iii) unchecked baggage, including personal items, shall be considered to be the property of the passenger in possession of the baggage at the time of embarkation.

(b) If a passenger makes, at the time checked baggage is handed to the Carrier, a special declaration of interest and has paid a supplementary sum, if applicable, the Carrier will be liable for destruction, loss, damage, or delay of such checked baggage in an amount not exceeding the declared amount, unless the Carrier proves that the declared amount is greater than the passenger’s actual interest in delivery at destination. The declared amount, and the Carrier’s liability, shall not exceed the total amount of declaration permissible under the Carrier’s regulations, inclusive of the limitation of paragraph (D)(1) hereof. In the case of transportation under the Warsaw Convention, no supplementary sum shall apply unless the declared amount exceeds 19 Special Drawing Rights per kilogram of the total recorded weight of the checked baggage at the time the baggage is handed to the Carrier. Nevertheless, the Carrier may impose charges for pieces of baggage in excess of any free allowance the Carrier may provide.

(c) In the case of unchecked baggage, the Carrier is liable only to the extent the damage resulted from its fault, or that of its servants or agents.

(d) The Carrier is liable for the damage sustained in case of destruction or loss of, or damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board of 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 the damage resulted from the inherent destruction, loss, damage or delay of baggage. Further, the carrier’s liability for the destruction, loss or damage or delay of baggage is subject to the terms, limitations and apply, in addition to any limitation of defense recognized by a court with proper jurisdiction over claim.

(e) The Carrier reserves all defenses and limitations available under the Warsaw Convention, and the Montreal Convention, whichever may apply to such claims including, but not limited to, the defense of Article 20 of the Warsaw Convention and Article 19 of the Montreal Convention, and the exoneration defense of Article 21 of the Warsaw Convention and Article 20 of the Montreal Convention, except that the Carrier shall not invoke Article 22(2) and (3) of the Warsaw Convention in a manner inconsistent with paragraph 4(a) hereof. The limits of liability shall not apply in cases described in Article 25 of the Warsaw Convention or Article 22(5) of the Montreal Convention, whichever may apply.

(5) Under the Warsaw Convention and the Montreal Convention, whichever may apply, an action for damages must be brought within two years, and a complaint must be made to the carrier within seven calendar days in the case of damage to baggage, and 21 calendar days in the case of the delay thereof. For baggage claims, reimbursement for expenses will be based upon acceptable proof of claim.

(C) LIMITATION OF LIABILITY

(1) Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred to as “damage”) to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is caused by the negligence of carrier. Assistance rendered to the passenger by carrier’s employees in loading, unloading, or transshipping baggage shall be considered as gratuitous service to the passenger. Carrier is not liable for damage to such unchecked baggage incurred during, or as a result of such service, irrespective of the negligence of carrier’s employees.

(2) Carrier is not liable for any damage directly and solely arising out of its compliance with any laws, government regulations, orders, or requirements or from failure of passenger to comply with same, or out of any cause beyond carrier’s control.

(3) Carrier is not liable for damage to a passenger’s baggage caused by the property contained in the passenger’s baggage. Any passenger whose property caused damage to another passenger’s baggage. Any passenger whose property caused damage to another passenger’s baggage or to the property of carrier shall indemnify carrier for all losses and expenses incurred by carrier as a result thereof.

(4) WY shall not be liable for loss or damage to protruding parts of checked baggage including but not limited to, feet/wheels/pullstraps and pull handles.

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