Decision No. 76-C-A-2005

February 10, 2005

File No. M4370/A896/02-4

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COMPLAINT

[1] On November 21, 2002, Noor Malik filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title. However, due to the regulatory nature of the complaint, it was referred to the Canadian Transportation Agency (hereinafter the Agency) on June 18, 2003.

[2] In a letter dated July 18, 2003, the parties were advised of the Agency's jurisdiction in this matter. Mrs. Malik was also requested to advise, within 10 days of receipt of the letter, whether she wished to pursue this matter formally before the Agency and, if so, whether she agreed to have the comments she had filed with the ATCC considered as pleadings before the Agency.

[3] Mrs. Malik did not respond within the specified time period, and as a result, Agency staff made numerous attempts to contact her by both telephone and mail.

[4] On September 30, 2003, Mrs. Malik contacted Agency staff to advise that her address had changed and that she had not received the letter of July 18, 2003. Accordingly, in a letter dated October 1, 2003, the parties were advised of the Agency's jurisdiction in this matter. Mrs. Malik was also requested to advise, within 10 days of receipt of the letter, whether she wished to pursue this matter formally before the Agency and, if so, whether she agreed to have the comments she had filed with the ATCC considered as pleadings before the Agency.

[5] In her letter dated October 22, 2003, Mrs. Malik advised that she wished to pursue this matter formally before the Agency and that she agreed to have the comments she had filed with the ATCC considered as pleadings before the Agency.

[6] In a letter dated October 22, 2003, a copy of Mrs. Malik's letter of the same date was forwarded to Aeroflot Russian Airlines (hereinafter Aeroflot) and the carrier was asked to advise, within 10 days, whether it agreed to have the comments it had filed with the ATCC considered as pleadings before the Agency. Aeroflot failed to respond within the specified time period. Accordingly, in a letter dated January 27, 2004, Aeroflot was provided with 10 days to file an answer to Mrs. Malik's complaint and Mrs. Malik was provided with 5 days from the date of receipt of Aeroflot's answer to file a reply. In its letter dated January 30, 2004, Aeroflot advised that it agreed to have the comments it filed with the ATCC considered as pleadings before the Agency.

[7] Subsequently, Agency staff advised Mrs. Malik on numerous occasions that clarification of certain information previously filed was required in order for the Agency to proceed with its consideration of her complaint. The requested information was received on May 7, 2004 and forwarded to Aeroflot for comments. Aeroflot's comments were received on May 25, 2004.

ISSUE

[8] The issue to be addressed is whether Aeroflot has applied the terms and conditions of carriage relating to limitations of liability for checked baggage specified in its International Passenger Rules and Fares Tariff (hereinafter the tariff), as required by subsection 110(4) of the Air Transportation Regulations, as amended, SOR/88-58 (hereinafter the ATR).

FACTS

[9] On July 21, 2001, Mrs. Malik travelled with her 8 year old daughter and her 18 year old son, from Toronto, Canada to Mumbai, India via Moscow on Aeroflot Flight Nos. SU 304 and SU 565. Upon arrival in Mumbai, Mrs. Malik discovered that one of her suitcases was missing and another was damaged. Two separate Property Irregularity Reports were completed. The weight of the missing bag was recorded as 32 kilograms. Mrs. Malik's suitcase, reported missing on arrival in Mumbai, was never recovered.

[10] On July 31, 2001, Mrs. Malik provided Aeroflot's Mumbai office with a list of items contained in her lost baggage, indicating a total value of CAD$18,405.

[11] On September 19, 2001, Mrs. Malik travelled back to Toronto from Mumbai, via Moscow on Aeroflot Flight Nos. SU 566 and SU 303. Upon arrival in Toronto, she discovered that two suitcases were missing - one belonging to her and one belonging to her son. Property Irregularity Report No. 59690 was completed for both missing bags.

[12] On September 21, 2001, Mrs. Malik's suitcase was returned to her residence; however, a number of items were reported by Mrs. Malik to be missing from this suitcase. Her son's suitcase was never recovered.

[13] A list of items allegedly contained in both Mrs. Malik's and her son's baggage and the value of items allegedly lost on the flight from Mumbai to Toronto was provided to Aeroflot's Toronto office. The total value claimed in this list amounts to CAD$11,980.

POSITIONS OF THE PARTIES

[14] Mrs. Malik submits that on arrival in Mumbai on Aeroflot Flight No. SU 565 on July 21, 2001, one of her checked bags was missing and another was badly damaged. She states that she immediately reported the incident to the officer in charge who filled out two separate Property Irregularity Reports and recorded the weight of the missing bag as 32 kilograms. Mrs. Malik submits that many of the items that she and her family had brought with them to attend a wedding were in the lost bag. She further states that, because the suitcase was not recovered, they purchased replacement items in order to attend the wedding. Mrs. Malik also submits that, on July 31, 2001, she provided Aeroflot's Mumbai office with one original boarding pass for the Toronto-Moscow portion of the flight as well as a list of items contained in her lost baggage, claiming a total value of CAD$18,405, the receipt of which was acknowledged by Aeroflot's Mumbai office.

[15] Mrs. Malik submits that she maintained regular contact with Aeroflot throughout her stay in Mumbai. Mrs. Malik claims that, during that time, Aeroflot informed her that the matter had been sent to its Moscow office for a determination and that nothing further could be done from the Mumbai office.

[16] Mrs. Malik states that by the time she left Mumbai to return home, despite her efforts the missing suitcase had not been recovered and no apparent action had been taken with regard to the damaged suitcase. Mrs. Malik also states that just prior to returning, she was informed by Aeroflot that she was to follow up with the carrier in Toronto.

[17] Mrs. Malik submits that on arrival in Toronto on September 19, 2001, she discovered that, again, luggage had been lost: one of her checked bags and one of her son's were missing. She states that she immediately reported the incident to the Aeroflot officer in charge who filled out a Property Irregularity Report for both missing bags.

[18] Mrs. Malik states that on September 21, 2001, her suitcase which had gone missing on her inbound flight from Mumbai to Toronto was returned to her residence in Toronto and she maintains that certain items were missing from this suitcase. She also advises that her son's suitcase was not recovered. Although Mrs. Malik claims that she is unable to substantiate the value of the items missing from the returned bag as the receipts for these items were in the suitcase that was not recovered, she provided a list of items contained in both missing suitcases entitled "List and value of lost items in flight from India - [Mumbai] to Canada - Toronto" to Aeroflot's Toronto office. The total value claimed in this list amounts to CAD$11,980.

[19] Mrs. Malik claims that the carrier requested her to provide certain original documents in support of her claim and that she personally delivered these to the Aeroflot Manager, Customer Service at the Toronto-Lester B. Pearson International Airport, and received confirmation of such action.

[20] Mrs. Malik states that she kept in regular contact with Aeroflot personnel in Toronto where she was able to communicate with the Station Manager, who requested that she fax to him all the documentation she had, as well as the original baggage tag that she claims was taken from her at the Mumbai Office. Mrs. Malik said she faxed the information as requested. Mrs. Malik submits, however, that in August 2002, she was informed by Aeroflot that it considered the matter closed.

[21] Aeroflot submits that as a result of Mrs. Malik's unavailability and inability to provide the necessary documentation in support of her claims, it was not able to compensate her in any way.

ANALYSIS AND FINDINGS

[22] 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 Aeroflot's limitations of liability applicable to the carriage of baggage between points in Canada and points outside of Canada, as set out in its tariff in effect at the time of Mrs. Malik's complaint, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as amended (hereinafter the Warsaw Convention) and the Carriage by Air Act, R.S.C., 1985, c. C-26, which gives effect to the Warsaw Convention in Canada.

Applicable legislative and regulatory provisions

[23] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and section 113.1 of the ATR.

[24] Subsection 110(4) of the ATR provides that:

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.

[25] Section 113.1 of the ATR states:

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.

[26] Also, the liability limits for loss, damage, or delay of baggage applicable to international carriage by air are set out in the Warsaw Convention, which has the force of law in Canada by virtue of the Carriage by Air Act. More particularly, Articles 22 and 23 of the Warsaw Convention provide, in part, as follows:

22(2)(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package 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 he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.

23(1) 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.

Application of the tariff

[27] The liability provisions of Aeroflot's tariff (NTA)(A) No. 324, in effect at the time of Mrs. Malik's complaint are set out in Rule 55, the following paragraphs of which are relevant to this complaint:

Rule 55 (D) LIMITATION OF LIABILITY

Except as the [Warsaw] 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.

(7) 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.

(12) Liability for Fragile, Irreplaceable or Perishable Articles
Carrier is not liable for loss, damage to or delay in the delivery of fragile or perishable articles, money, jewelry, silverware, negotiable papers, securities or other valuables, business documents or samples which are included in the passenger's checked baggage, whether with or without the knowledge of carrier.

[28] Aeroflot's tariff also contains a specific free baggage allowance provision that identifies the type of baggage the carrier will carry without payment of additional charges when a passenger is travelling on an economy fare. More particularly, Rule 115(Q)(1)(c) provides the following:

The free baggage allowance will consist of two pieces of luggage, the first not to exceed 62 inches and 70 pounds, and the second not to exceed 55 inches and 70 pounds.

[29] Mrs. Malik's complaint includes the following three claims:

1. A claim in the amount of CAD$18,405 in respect of items allegedly contained in Mrs. Malik's suitcase lost en route to Mumbai in July of 2001;
2. A claim in respect of damage to one of Mrs. Malik's suitcases en route to Mumbai in July of 2001; and
3. A claim in the amount of CAD$11,980 in respect of items allegedly contained in Mrs. Malik's son's suitcase lost en route to Toronto in September of 2001 and items allegedly missing from a suitcase that was returned to Mrs. Malik at her residence several days after the flight.

[30] The Agency had a great deal of difficulty obtaining from Mrs. Malik the information and documents that it required in order to conduct a proper investigation into her complaint. In fact, it was not until March 18, 2004, that the Agency finally received the following original documents from Mrs. Malik, which she initially advised had been provided to Aeroflot:

1. Original itinerary/invoices dated July 16, 2001 for Mrs. Malik and her daughter;
2. Original itinerary/invoices dated July 16, 2001 for Mrs. Malik's son;
3. Two original Property Irregularity Report issued in Mumbai on July 21, 2001;
4. A copy of Mrs. Malik's correspondence dated December 18, 2001 to Aeroflot;
5. Original Property Irregularity Report issued by Central Baggage in Toronto on September 19, 2001;
6. Original airline ticket No. 555 4414303587 1 and associated baggage tags; and
7. Original airline ticket No. 555 4414303588 2 and associated baggage tags.

[31] The Agency has carefully examined all of the above documents and notes that Aeroflot has not challenged either Mrs. Malik's allegation that the suitcases were lost or the veracity of the information contained in the Property Irregularity Reports, nor did it challenge her contention that one suitcase was damaged. The Agency, therefore, finds that the evidence suggests that the two suitcases were lost during Aeroflot flights between Toronto and Mumbai, and that one bag was damaged.

[32] Pursuant to Rule 55(D)(7) of Aeroflot's tariff, the carrier's liability for checked baggage is limited to 250 French Gold Francs per kilogram, unless a passenger declares a higher value in advance and pays additional charges to the carrier. This provision is essentially the same as Article 22(2)(a) of the Warsaw Convention. The Agency notes that although Mrs. Malik alleges that approximately CAD$30,000.00 worth of items were contained in the lost suitcases, there is no evidence to suggest that Mrs. Malik either declared a higher value or paid Aeroflot any additional charges in respect of the luggage. The Agency further notes that a number of the items Mrs. Malik alleges were contained in the lost luggage are items for which the carrier specifically states that it is not liable in Rule 55(D)(12) of its tariff. The Agency, therefore, finds that Aeroflot's liability for the lost luggage, including contents, is limited to 250 French Gold Francs per kilogram.

[33] While the weight of the suitcase lost en route to Mumbai is recorded on the applicable Property Irregularity Report as 32 kilograms, there is no evidence in respect of the weight of the suitcase lost en route to Toronto. Pursuant to Rule 115(Q)(1)(c) of Aeroflot's tariff, the carrier's maximum free baggage allowance is two pieces of luggage not exceeding 70 pounds (32 kilograms). In the absence of any evidence to the contrary, the Agency is of the opinion that it is reasonable to consider the weight of the suitcase lost en route to Toronto to be 32 kilograms. Accordingly, the Agency finds that Aeroflot's liability for the two lost suitcases is limited to 250 French Gold Francs multiplied by 64 kilograms.

[34] Pursuant to subsections 2(6) and (7) of the Carriage by Air Act, the franc is to be converted into Canadian dollars as follows:

2(6) Any sum in francs mentioned in Article 22 of Schedule I shall, for the purposes of any action against a carrier, be converted into Canadian dollars at the rate of exchange prevailing on the date on which the amount of any damage to be paid by the carrier is ascertained by a court.

2(7) For the purposes of subsection (6), the Canadian dollar equivalents of francs or Special Drawing Rights, as defined in Article 22 of the Convention set out in Schedule I, are determined by

(a) converting francs into Special Drawing Rights at the rate of one Special Drawing Right for 15.075 francs; and

(b) converting Special Drawing Rights into Canadian dollars at the rate established by the International Monetary Fund.

[35] Applying the above formula, 250 francs convert to 16.58 Special Drawing Rights (hereinafter SDR). As of February 10, 2005, the most recent information available indicates that the International Monetary Fund converted SDR to Canadian dollars (CAD$) using a rate of SDR 1 = CAD$1.87363. Utilising that rate, 250 francs = CAD$31.06478 (product of 250 multiplied by the exchange rate). The Agency, therefore, finds that the amount of compensation to be paid to Mrs. Malik by Aeroflot for the two lost suitcases is CAD$1,988 (64 multiplied by product of 250 multiplied by the exchange rate).

[36] With respect to Mrs. Malik's claim concerning articles missing from her recovered suitcase, the Agency is of the opinion that the evidence on file does not satisfactorily substantiate the claim. Mrs. Malik simply provided the Agency with one list of items allegedly missing from both her recovered suitcase and her son's suitcase lost en route to Toronto, without providing any supporting receipts or any indication as to which items were contained in which suitcase. There also appears to be some overlap between this list and the list provided in support of the claim in respect of the suitcase lost en route to Mumbai.

[37] With respect to Mrs. Malik's claim concerning the damaged suitcase, reference is made to Rule 55(D)(1) of Aeroflot's tariff which states that the carrier is not liable for any damage unless it is proven that the carrier caused the damage and "there has been no contributory negligence of the passenger". The Agency notes that a Property Irregularity Report recording the damage was completed by the passenger immediately upon arrival in Mumbai. Hence, the probability of contributory negligence on the part of the passenger is very low. The Agency finds, therefore, that Aeroflot should reimburse the cost of repairs to the damaged suitcase.

[38] In light of the foregoing, the Agency finds that in refusing to compensate Mrs. Malik in any way, Aeroflot has failed to apply the terms and conditions of carriage set out in its tariff, contrary to subsection 110(4) of the ATR.

CONCLUSION

[39] Based on the above findings, the Agency, pursuant to section 113.1 of the ATR, hereby directs Aeroflot to compensate Mrs. Malik, within thirty (30) days from the date of this Decision, CAD$1,988 (64 multiplied by product of 250 multiplied by the exchange rate).

[40] The Agency further directs Aeroflot to compensate Mrs. Malik for the repair of the suitcase damaged en route to Mumbai upon receipt of satisfactory proof of repair provided by Mrs. Malik.

[41] On the basis of a lack of substantiating evidence, the Agency hereby dismisses the balance of the complaint.