Decision No. 73-C-A-2010

INTRODUCTION AND ISSUES

[1] Farjana Panchbhaya filed a complaint with the Canadian Transportation Agency (Agency) with respect to the refusal by Société Air France carrying on business as Air France (Air France) to provide her with adequate compensation for the inconvenience she experienced due to the fact that Air France rerouted her and her children to Flight AF2244 from Paris, France to Moscow, Russia on November 27, 2008 connecting to Aeroflot - Russian Airlines (Aeroflot) Flight SU567 to Mumbai, India, the late delivery of four pieces of her checked baggage on arrival in Mumbai and missing items from her delayed baggage.

[2] On February 23, 2009, Mrs. Panchbhaya filed with the Air Travel Complaints Directorate (ATCD) the complaint set out in the title. On August 31, 2009, Mrs. Panchbhaya advised that she wished to pursue the matter formally before the Agency.

[3] On September 4 and 8, 2009, Mrs. Panchbhaya and Air France advised that the comments they had filed with the ATCD should be considered as pleadings before the Agency.

[4] There are two issues:

1. Did Mrs. Panchbhaya file a claim with Air France for the delay and loss of her checked baggage within the deadline prescribed by the Montréal Convention (Convention) and/or Air France’s International Passenger Rules and Fares Tariff NTA(A) No. 313 (Tariff) and, if so, is she entitled to any reimbursement?
2. Did Air France properly apply the terms and conditions of carriage relating to flight cancellation and involuntary revised routing specified in its Tariff?

[5] If Mrs. Panchbhaya filed a claim with Air France within the deadline prescribed by its Tariff and/or the Convention for the delay and loss of the checked baggage and if the carrier improperly applied the terms and conditions relating to flight cancellation and involuntary revised routing specified in its Tariff, the question of compensation to Mrs. Panchbhaya becomes an issue.

[6] As indicated in the reasons that follow, the Agency finds that:

1. With respect to the items missing from Mrs. Panchbhaya’s delayed checked baggage, Mrs. Panchbhaya filed a claim with Air France within the 21-day deadline specified in its Tariff and she is entitled to a total reimbursement of CAD$733.52;
2. With respect to the flight cancellation and involuntary revised routing, Air France properly applied the terms and conditions of carriage set out in its Tariff; and
3. All other claims for reimbursement and compensation are dismissed.

SUBMISSIONS

[7] Mrs. Panchbhaya submits that she and her two children travelled with Air France on November 26, 2008 from Toronto, Ontario, Canada to Paris on Flight AF353. She explains that she was supposed to go to Mumbai on Air France Flight AF134 but that instead of this flight, due to some problems, Air France sent her and her children from Paris to Moscow on Air France Flight AF2244, and then from Moscow to Mumbai on Aeroflot Flight SU567. She advises that upon arrival in Mumbai on November 28, 2008, she received only two pieces of baggage instead of six, so four pieces of baggage were missing. She adds that some items were missing from the delayed baggage when it was delivered to her on November 29, 2008, and that the approximate cost for the lost items is CAD$1,700. Mrs. Panchbhaya further claims that she purchased items totaling CAD$1,705.99 due to the late delivery of her checked baggage. She also submitted receipts for other items totaling CAD$1,202.32.

[8] Mrs. Panchbhaya claims that she went to Air France’s office in Mumbai to file a claim, but was sent to Aeroflot’s office in Mumbai by Air France’s staff who told her Aeroflot was responsible. She adds that she then went to Aeroflot’s office, where she was given a list of documents and the address for Air France Customer Relations Office in Montréal. She then filed a claim with Air France on December 7, 2008 requesting payment for her lost time and money, as well as compensation for the loss of three to four days of vacation.

[9] Air France states that due to political events in Mumbai, it was unable to operate the route Paris/Mumbai on November 27, 2008. The carrier explains that although the tickets were non reroutable and non endorsable, it tried to minimize any possible inconvenience by rerouting Mrs. Panchbhaya and her children to Moscow on another carrier. Air France submits that the four pieces of delayed checked baggage had been checked in the children’s name.

[10] With respect to Mrs. Panchbhaya’s claim, Air France points out that the number of bills for purchases of first necessity and the number of similar items purchased do not appear to be reasonable, based on the length of the baggage delay. Air France explains that the limit of liability of 1000 Special Drawing Rights per passenger, with respect to liability, as provided for in Article 22 of the Convention, is not a granted amount but a limit of liability, and that clients are responsible for minimizing the inconveniences linked to an irregularity.

ANALYSIS AND FINDINGS

1. Did Mrs. Panchbhaya file a claim with Air France for the delay and loss of her checked baggage within the deadline prescribed by the Convention and/or Air France’s Tariff and, if so, is she entitled to any reimbursement?

[11] By virtue of the Carriage by Air Act, R.S., 1985, c. C-26, the Convention has the force of law in Canada and governs the liability limitations for loss, damage or delay of baggage applicable to international carriage by air.

Loss of items in checked baggage

[12] Article 31(2) of the Convention states that:

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.

[13] Rule 55(C)(1) of the Tariff states that:

LIMITATION OF LIABILITY

Except as the Convention or other applicable law may otherwise require:

(1) Carrier is not liable for any loss or claim of whatsoever nature (hereinafter in this tariff collectively referred to as “damage”) arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is proved to have been caused by the negligence or willful fault of carrier and there has been no contributory negligence of the passenger.

[14] Rule 55(E)(1) of the Tariff states that:

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 an office of carrier forthwith after the discovery of the damage, and at the latest, within seven (7) days from the date of receipt; and in the case of delay or loss, unless the complaint is made at the latest within twenty-one (21) days for all carriers 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 in writing and dispatched within the times aforesaid. […]

[15] In its submission, Air France argues that Mrs. Panchbhaya’s claim for missing articles should be dismissed as she failed to submit a complaint with Air France within the seven-day period prescribed by Rule 55(E)(1) of its Tariff. Air France submits that a claim for missing articles does not belong in the “loss” category of Rule 55(E)(1) of the Tariff under which it provides for a 21-day claim period, but in the “damage” category, as “loss” concerns pieces of baggage which cannot be located despite re-searches.

[16] Mrs. Panchbhaya states that upon delivery of her delayed baggage on November 29, 2008, there were items missing from the baggage, including material purchased to make wedding suits and 11 night dresses. Mrs. Panchbhaya provided receipts for such items. She submits that she lost approximately CAD$1,700.

[17] The Agency finds that, while Rule 55(C)(1) of Air France’s Tariff supports the idea that loss is to be considered as “damage” throughout the Tariff, Air France is bound by the more specific language indicated in Rule 55(E)(1) of its Tariff, given that the limitation of liability clause in that Rule specifically refers to “loss” as distinct from “damage”. Accordingly, the Agency finds that Mrs. Panchbhaya was entitled to a 21-day period to file a complaint for the lost items in the checked baggage.

[18] In light of the above, the Agency is satisfied that Mrs. Panchbhaya properly notified Air France of the loss of some items from her checked baggage within the required period, and concludes that Air France’s argument on the time limitation must be dismissed.

[19] Mrs. Panchbhaya is therefore entitled to a reimbursement in the amount of CAD$733.52, which covers the cost of the items missing from her children’s baggage, for which she submitted receipts.

Delay of checked baggage

[20] Article 31(2) of the Convention provides that, in the case of delay, the complaint must be made at the latest within 21 days from the date on which the baggage has been placed at the complainant’s disposal.

[21] Mrs. Panchbhaya filed a complaint on December 7, 2008 regarding the expenses she incurred as a result of the delayed delivery of her baggage, which is within the 21-day deadline prescribed by Air France’s Tariff and mandated by the Convention. However, the Agency notes that Mrs. Panchbhaya incurred all of those expenses (totaling CAD$1,705.99) between December 2 and 15, 2008, which is after she took delivery of her delayed baggage on November 29, 2008.

[22] The Agency therefore finds that these expenses are inadmissible because they were made after the delayed baggage was delivered to Mrs. Panchbhaya on November 29, 2008.

Miscellaneous items and expenses not showing on any list

[23] Mrs. Panchbhaya’s claim includes receipts for various items of clothing, rail tickets and hotel accommodations, totaling CAD$1,202.32. She submits that the hotel expenses were incurred as a result of her staying in Mumbai to await the arrival of her four missing pieces of baggage.

[24] The miscellaneous items and those not showing on any list do not constitute missing items from the baggage or items purchased as a result of late delivery of Mrs. Panchbhaya’s baggage. Consequently, neither the Convention nor Air France’s Tariff provide for compensation for such items.

Expenses incurred by Mrs. Panchbhaya but listed on her brother’s credit card statement

[25] Mrs. Panchbhaya submitted a CIBC Visa credit card statement showing a list of items that she allegedly purchased to replace the items missing from her baggage. The total cost for such items is CAD$1,243.84. While the credit card is in her brother’s name, Mrs. Panchbhaya submits that she incurred the purchases.

[26] The Agency notes that there is no evidence on file that Mrs. Panchbhaya is the person who incurred those expenses and therefore finds that they are inadmissible for claim.

2. Did Air France properly apply the terms and conditions of carriage relating to flight cancellation and involuntary revised routing specified in its Tariff?

[27] Rule 80(B)(1)(b) of the Tariff provides that:

INVOLUNTARY REVISED ROUTINGS

(1) In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space […] carrier will either:

[…]

(b) Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting.

[28] Mrs. Panchbhaya submits that she purchased tickets from Air France for travel from Toronto to Mumbai via Paris on November 26, 2008. She explains that she was supposed to go to Mumbai on Air France Flight AF134 but that instead of this flight, due to some problems, Air France sent her and her children from Paris to Moscow on Air France Flight AF2244, and then from Moscow to Mumbai on Aeroflot Flight SU567. She submits that it resulted in a 20-hour delay, and that travelling with two small children, losing vacation time and facing dietary restrictions caused her hardship. She further submits that Air France failed to provide service for the route she purchased.

[29] Air France submits that due to political events in Mumbai, it was unable to operate the Paris/Mumbai route on November 27, 2008, and that, in an effort to minimize any possible inconvenience, it rerouted Mrs. Panchbhaya and her children to Moscow on another carrier, the very same day.

[30] Air France’s Tariff on file with the Agency provides that the carrier may, without notice, cancel a flight and endorse the unused portion to another carrier for the purposes of rerouting.

[31] The Agency finds that by rerouting Mrs. Panchbhaya and her children to Moscow on another carrier, Air France has correctly applied the terms and conditions of its Tariff.

CONCLUSION

[32] Based on the above findings, the Agency concludes that:

1. With respect to Air France’s argument that Mrs. Panchbhaya’s claim for reimbursement for the items that were missing from her baggage should be rejected because it was not submitted within seven days of the incident, the Agency concludes that Rule 55(E)(1) of Air France’s Tariff clearly provides for a 21-day claim period. Accordingly, the Agency, pursuant to section 113.1 of the Air Transportation Regulations, SOR/88-58, as amended, directs Air France, within 30 days from the date of this Decision, to pay Mrs. Panchbhaya the sum of CAD$733.52 in regards to all claims filed against the carrier, with respect to this matter.
2. With regards to Mrs. Panchbhaya’s claim for expenses incurred as a result of the delayed delivery of four pieces of baggage, the Agency finds that while Mrs. Panchbhaya submitted her claim in a timely fashion, the items that she is claiming were purchased after the delayed baggage was returned to her on November 29, 2008. These items are therefore not admissible for reimbursement.
3. Regarding the claim for miscellaneous items and expenses not showing on any list, the Agency finds that neither the Convention nor Air France’s Tariff provides for compensation for such items. These items are therefore not eligible for reimbursement.
4. With respect to the expenses allegedly incurred by Mrs. Panchbhaya listed on her brother’s credit card statement, the Agency finds that there is no evidence that she incurred these expenses and they are therefore not admissible for compensation.
5. As to whether Air France properly applied the terms and conditions relating to flight cancellation and involuntary revised routing specified in its Tariff, the Agency finds that Air France properly applied its Tariff when it rerouted Mrs. Panchbhaya and her children to Moscow on Aeroflot Flight AF2244.