Decision No. 76-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning damage to a wedding dress which the applicants claim occurred on Flight No. WG421 from Punta Cana, Dominican Republic, to Sudbury, Ontario, via Kitchener, Ontario, on March 13, 2019.

[2] The applicants seek compensation of CAD 1,519.30 for the original cost of the wedding dress and associated cleaning costs.

[3] The Agency will address the following issues:

1. Did the respondent properly apply the terms and conditions set out in its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 3 (Tariff) relating to refusal to transport as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR)?
2. If the respondent did not properly apply its Tariff, what remedies, if any, should be ordered?

[4] For the reasons presented below, the Agency finds that the respondent properly applied the terms and conditions set out in Rule 11 of its Tariff. Therefore, the Agency dismisses the application.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[6] 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 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.

[7] Article 17(2) of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) applies to the applicants’ travel and sets out the carrier’s liability in case of destruction, loss of, or damage to checked baggage:

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. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[8] The relevant provisions of the Tariff are set out in the Appendix.

POSITION OF THE PARTIES

The applicants

[9] The applicants booked a Sunwing Vacations destination wedding package which included flights operated by the respondent: Flight No. WG420 departing from Sudbury to Punta Cana via Kitchener on March 6, 2019; and Flight No. WG421 departing from Punta Cana to Sudbury via Kitchener on March 13, 2019.

[10] The applicants claim that on Flight No. WG421, Ashley Verge’s wedding dress was damaged when a flight attendant “jammed” the dress, which was stored in a garment bag, into an overhead compartment. The applicants assert that the information provided to them by Sunwing Vacations regarding their wedding package stated that there would be a specially assigned compartment to store the dress on the flight. The applicants provided a photo showing the garment bag at the airport and photos of the damage to the dress.

[11] The applicants submit that they were informed that the damage to the dress was irreparable and have provided a receipt issued by a professional cleaner which states that the dress could not be repaired and was only cleaned and pressed.

The respondent

[12] The respondent submits that the applicants have not provided sufficient evidence that the wedding dress was damaged by a crew member on Flight No. WG421. It argues that the photo of the protective garment bag showed no apparent damage to the bag. It contends that the photo of the damaged dress submitted by the applicants appears to have been taken at a different time and location, as the photo of the apparently undamaged garment bag was taken upon arrival at the airport.

[13] The respondent submits that in addition to this discrepancy, it is not uncommon for a wedding dress to sustain damage at the wedding and that the photos of the damage show a tear which could have been sustained if the dress became caught or snagged on an edge such as that of a table.

[14] Additionally, the respondent claims that it did not receive any information from Sunwing Vacations advising that Ashley Verge would be travelling with her wedding dress in a garment bag as carry-on baggage, which would have allowed it to pre-assign an overhead compartment to store the garment as there are no closets on board its aircraft. The respondent submits that Flight No. WG421 was nearly at capacity and that it agreed to carry the dress in the cabin as a gesture of goodwill as it exceeded the dimensional allowance for carry-on baggage set out in Rule 18 of the Tariff. Finally, the respondent submits that the wedding vacations document submitted by the applicants specifically advises that a specially assigned compartment will only be available to “carry your wedding dress to your destination” and makes no reference to the return trip. It suggests that it is not uncommon to pack a wedding dress in checked baggage for a return flight.

[15] The respondent filed copies of the two CAD 200 vouchers which it offered the applicants as a gesture of goodwill, which it states were accepted by the applicants on June 25, 2019.

Applicants’ reply

[16] In their reply, the applicants claim that there was an agreement to extend the compensation offered to CAD 400 per person but did not submit any evidence regarding such an agreement.

[17] The applicants do not address the respondent’s statements regarding the possibility that the damage to Ashley Verge’s wedding dress may not have been sustained on Flight No. WG421.

ANALYSIS AND DETERMINATIONS

[18] 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.

[19] On the one hand, the applicants claim that the damage to Ashley Verge’s dress was sustained when an employee of the respondent placed it in an overhead compartment on the aircraft. In support of their claim, they have provided a photo of the closed garment bag in which the wedding dress was stored that appears to have been taken at the airport. On the other hand, the respondent asserts that the damage could have been sustained at the wedding, possibly by becoming snagged on an edge such as that of a table.

[20] When contradictory versions of events are presented by parties, the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency, therefore, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[21] Though the garment bag appears wrinkled, there is no evidence of damage. An additional close-up photo of the damage to the dress itself shows what appears to be a small tear in the skirt of the dress. Given the discrepancy in the locations and time of the photos provided as well as the location of the apparent tear in the dress, the Agency finds that the applicants have not established that the dress was damaged during the flight. It is more likely that the damage occurred at some point during the wedding, but went unnoticed until after the flight when the applicants did a thorough inspection of the garment.

[22] The Tariff does not address the carriage of a wedding dress as a carry-on item. However, Rule 11 of the Tariff fully incorporates by reference the liability rules for baggage set out in the Montreal Convention. Regarding unchecked baggage, Article 17(2) of the Montreal Convention states that the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[23] The applicants did not establish that the damage occurred during the flight; therefore, it was not a direct result of the actions of one of the respondent’s servants or agents on Flight No. WG421. Based on the above, the Agency finds that the applicants have not established that the respondent did not properly apply the terms and conditions set out in Rule 11 of its Tariff when it did not compensate the applicants for the original cost of the wedding dress and associated cleaning costs.

CONCLUSION

[24] The Agency dismisses the application.

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APPENDIX TO DECISION NO. 76-C-A-2020

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand CTA(A) No. 3

RULE 11. LIMITATION OF LIABILITY FOR BAGGAGE OR GOODS

11.1 For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

RULE 18. ACCEPTANCE OF BAGGAGE AND CARGO

18.1(c) One piece of Baggage equivalent to hand Baggage may be carried onboard the aircraft by the Passenger not weighing more than 5kgs and provided that the dimensions do not exceed 9 inches x 16 inches x 20 inches and is convenient to be stowed in the Passenger compartment of the aircraft.