Decision No. 703-A-1997

December 23, 1997

File No. 4370/L67/97

APPLICATION

Mr. Glen Muir filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) regarding the excess baggage charge imposed by LOT Polish Airlines (hereinafter LOT) for the carriage of a cat from Warsaw, Poland, to Toronto, Ontario, Canada.

ISSUE

The issue to be addressed is whether or not LOT applied the terms and conditions of carriage specified in its tariff on file with the Agency in compliance with subsection 110(4) of the Air Transportation Regulations (hereinafter the ATR).

FACTS

On July 27, 1997, LOT carried Mr. Muir's cat free of charge on a connecting flight from Gdansk to Warsaw. However, upon check-in at the Warsaw airport for a flight to Toronto, Mr. Muir was advised by LOT that he had to pay a $240 U.S. excess baggage charge for the carriage of his cat, in the cabin of the aircraft, which he paid.

POSITION OF THE PARTIES

Mr. Muir advises that his cat was secured in a carrying case and fit securely and easily under his seat and that no service was provided to him or the cat which might have justified the charges imposed by LOT between Warsaw and Toronto. LOT's personnel at Warsaw was unable to explain the reasons for these charges. Upon his return to Toronto, Mr. Muir was informed by LOT's personnel that the charge imposed for the carriage of his cat were primarily the responsibility of the International Air Transport Association (hereinafter IATA). This statement was subsequently denied by a representative of IATA in Switzerland. Mr. Muir is of the opinion that he has not been provided with a satisfactory response from LOT.

LOT advises that the charge in question is based on the IATA Airline Passenger Tariff Rules 3.3.3.1 and 3.3.4.5 which state, in part, that charges for the carriage of accompanied pets shall be twice the normal excess baggage charges and that the normal excess baggage charges for travel between Poland and Canada (Ontario) is $120 U.S.

LOT is also of the opinion that it was in compliance with its international charter tariff on file with the Agency in that the provisions therein only apply to international Advance Booking Charters (hereinafter ABC) originating in Canada. Since the carriage of Mr. Muir's cat was from Warsaw to Toronto and the charge was imposed outside of Canada, LOT is of the opinion that the payment of this charge is not regulated by the ATR.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties.

Subsection 110(4) of the ATR regarding international tariffs states, in part, that the tolls and terms and conditions of carriage in a 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.

The Agency is of the opinion that Mr. Muir's flight from Warsaw to Toronto was the return portion of an ABC. The applicable tariff in effect at the relevant time was LOT Charter Tariff NTA(A) No. 4 which defines an ABC as a round-trip international charter originating in Canada.

LOT's tariff provides, in part, that it is applicable to the transportation of passengers and baggage or goods for charter services on aircraft operated by the carrier [Rule 2(a)], and that charter transportation originating in Canada shall be subject to the rules, rates and charges published or referred to therein [Rule 2(c)]. Further, Rule 7(c)(iii) of LOT's tariff provides that cats will be carried as baggage only with the prior consent of the carrier in the cargo compartment of the aircraft. The said tariff does not contain provisions on the imposition of charges for the carriage of baggage, including live animals.

The Agency has reviewed the provisions on excess baggage charges contained in the IATA Airline Passenger Tariff. The Agency is of the opinion that this document is principally a guideline for the assessment of charges by carriers and does not take precedence over the terms and conditions set out in LOT's tariff which was filed with the Agency pursuant to the ATR.

The Agency is of the opinion that LOT's tariff clearly applies to ABC flights originating in Canada and that the ABC purchased by Mr. Muir in Canada, and which originated in Canada, is subject to the provisions of LOT's tariff. Warsaw was not the origin of the ABC, it was the origin of the return portion of the round-trip journey between Canada and Poland.

Accordingly, the Agency finds that LOT contravened subsection 110(4) of the ATR by imposing charges which are not specified in its International Charter Tariff NTA(A) No. 4 on file with the Agency. The Agency has also determined that LOT should not have charged Mr. Muir $240 U.S. for the carriage of his cat from Warsaw to Toronto.

CONCLUSION

The Agency hereby orders LOT to apply the terms and conditions of its International Charter Tariff NTA(A) No. 4 at all times by not imposing charges which are not specified in that tariff.