Decision No. 44-C-A-2018

SUMMARY

[1] Bhavana Jain filed an application with the Canadian Transportation Agency (Agency) against Turkish Airlines concerning the alleged delayed delivery and damage to her baby stroller, and excess baggage charges collected by the carrier.

[2] Ms. Jain is seeking US$210 for the delay and damage to her baby stroller, and a refund of US$210 for excess baggage charges collected.

[3] The Agency will consider whether Turkish Airlines properly applied the terms and conditions set out in its International Passenger Rules and Fares Tariff NTA(A) No. 530 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

[4] For the reasons set out below, the Agency dismisses Ms. Jain’s allegations regarding the delay and damage to her baby stroller. With respect to the excess baggage charges collected, the Agency finds that Turkish Airlines failed to apply the terms and conditions set out in its Tariff, and orders the carrier to reimburse to Ms. Jain the amount of US$210. This amount is to be paid as soon as possible, and no later than August 8, 2018.

BACKGROUND

[5] Ms. Jain travelled with her infant son from Toronto, Ontario, Canada to Mumbai, India via Istanbul, Turkey on January 18, 2017, and returned from Mumbai to Toronto via Istanbul on March 15, 2017.

PRELIMINARY MATTER

[6] In support of her application, Ms. Jain filed correspondence between her husband, Vishal Jain, and Turkish Airlines in which Mr. Jain makes several references to what he perceives to be poor customer service on the part of Turkish Airlines in resolving his wife’s claim, and the lack of assistance with her baggage.

[7] The Agency does not have jurisdiction with respect to the level of service that a passenger receives from an air carrier, as stated in previous decisions such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada). Therefore, the Agency will not consider this issue.

THE LAW

[8] 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.

[9] 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:

1. take the corrective measures that the Agency considers appropriate; and
2. 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.

[10] Rule 55(A)  of Turkish Airlines’ Tariff incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) by reference and states the following:

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.

[11] Article 17(2) of the Montreal Convention sets out a carrier’s liability for lost and damaged baggage, and provides in part that:

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. […]

[12] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states that:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such assures.

[13] Article 31(2) of the Montreal Convention sets out the time limits in which complaints must be filed with the carrier and states that:

[...]

(2) 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 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 disposal.

[...]

(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

[14] Rule 115(E)(3) of Turkish Airlines’ Tariff sets out the free baggage allowance for economy class service and states the following:

For travel between […] Canada and Europe the free baggage allowance for checked baggage is as follows: 2 pieces of checked baggage of which the total of the 3 dimensions of the first piece does not exceed 158 cm (107 inches) and the total dimensions of the two pieces together does not exceed 273 cm, and the weight of each piece does not exceed 23 kgs.

[15] Rule 115(E)(5)  of Turkish Airlines’ Tariff  states the following:

In addition to the free baggage allowances provided herein, each passenger may carry, without additional charges, the following articles of baggage only when retained in the passenger’s custody, except that items listed in (G) and (H) may be carried in the passenger or cargo compartment of the aircraft.

1. A handbag, pocketbook or purse which is appropriate to normal traveling dress and which is not being used as a container for the transportation of articles regarded as baggage;
2. An overcoat, wrap or blanket;
3. An umbrella or walking stick;
4. A small camera and a pair of binoculars;
5. A reasonable amount of reading matter for the flight;
6. Infant’s food for consumption in flight;
7. Infant’s carrying basket or bassinet;
8. A fully collapsible invalid’s wheel chair and/or a pair of crutches, and/or braces or other prosthetic device for the passenger’s use; provided that the passenger is dependent upon them;
9. Any other articles, including overnight bags, brief cases, typewriter, personal radios, vanity or cosmetic cases, hat boxes, large cameras and reading matter which cannot reasonably be read during the flight will not be carried free unless they are included in the free baggage allowance.

[16] Rule 115(F)(3) of Turkish Airlines’ Tariff states that children paying 10 percent of the normal adult fare will be allowed one piece of checked baggage whose sum of the three dimensions does not exceed 115 cm (45 inches) plus one checked fully collapsible child’s stroller or push-chair.

[17] Rule 115(J) of Turkish Airlines’ Tariff states that the carrier will not be obligated to carry baggage until the passenger has paid all applicable charges or has complied with credit arrangements established by the carrier.

[18] Rule 200(B) of Turkish Airlines’ Tariff states that the fare for infants (children under 2 years old) on all international routes is 10% of the adult fare.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Jain’s position

[19] Ms. Jain states that on her outbound journey (Toronto to Mumbai via Istanbul), Turkish Airlines lost and then subsequently found her baby stroller and returned it to her in a damaged state. Ms. Jain argues that she is entitled to compensation under the Montreal Convention for the loss and damage to her baby stroller and as such is seeking US$210 in compensation. She also states that on the return portion of her journey, while departing from the Mumbai Airport, she was wrongly charged US$210 for excess baggage and she is seeking a refund of these charges.

[20] In support of her arguments, Ms. Jain filed correspondence between her husband, Vishal Jain, and Turkish Airlines, wherein Mr. Jain states that Turkish Airlines damaged his wife’s baby stroller and that it was delivered to Ms. Jain 52 hours after her arrival in Mumbai. He also states that he filed an online lost baggage claim with Turkish Airlines, further to the carrier’s April 30, 2017 e‑mail request. With respect to the excess baggage charge collected by Turkish Airlines, Mr. Jain states that his wife requested “meet and greet wheelchair assistance” to carry her baggage, as she was travelling with eight pieces of baggage and her infant child. Mr. Jain claims that the carrier told her that they do not offer assistance to mothers and that they were charging her US$210 to help her.

Turkish Airlines’ position

DAMAGED AND DELAYED BAGGAGE

[21] Turkish Airlines states that Ms. Jain’s claim with respect to the damage sustained to her baby stroller is unfounded and that no compensation is due in this regard. Turkish Airlines submits that Ms. Jain failed to prove that it caused any such damage to the stroller. Turkish Airlines argues that it was first made aware of the claim in an e-mail from Ms. Jain’s husband, Vishal Jain, on April 10, 2017. Turkish Airlines agrees that Ms. Jain’s journey is governed by the Montreal Convention, but argues that its liability is limited to proven damages, pursuant to Article 17 of the Montreal Convention, and that claims must be made within the time periods set out in Article 31 of the Montreal Convention.

[22] With respect to the allegations that the baby stroller was delayed in its delivery, Turkish Airlines again argues that Ms. Jain failed to prove that she suffered any damages from the delay as required by Article 19 of the Montreal Convention, and that she did not file a claim within the time periods set out in Article 31 of the Montreal Convention. Therefore, Turkish Airlines states that it is not liable for the delay incurred.

EXCESS BAGGAGE

[23] Turkish Airlines states that on March 15, 2017, Ms. Jain presented herself for check in with three pieces of baggage, including a car seat, and five pieces of carry-on baggage. Turkish Airlines submits that Ms. Jain requested that two of her carry-on baggage be checked free of charge.

[24] Turkish Airlines maintains that Rule115 of its Tariff sets outs the terms and conditions applicable to the carriage of baggage and states that passengers travelling in Economy class are allowed to transport the following free of charge:

• 2 pieces of checked baggage per adult;
• 1 piece of checked baggage and a fully collapsible child’s stroller per infant; and,
• one handbag per person as carry-on baggage.

[25] Turkish Airlines submits that these rules are also clearly stated on Turkish Airlines’ website and that Ms. Jain was well aware of these rules as she presented herself for check in with a copy of them.

[26] Turkish Airlines argues that Ms. Jain and her infant child were over the free baggage allowance, and that it refused to carry the excess baggage free of charge. Turkish Airlines submits that its action was in accordance with Rule 115 of its Tariff, which provides that baggage in excess of the free allowance will only be carried upon payment of the applicable fee.

[27] Turkish Airlines states that Ms. Jain combined two of her carry-on baggage into one piece of baggage, resulting in Turkish Airlines charging her US$210 for excess baggage. Turkish Airlines further sates that its fees for excess baggage are clearly posted on its website. In support of its statement, the carrier provided a copy of its policy, as displayed on its website, which indicates that the excess baggage fee for travel between Mumbai and Toronto is US$220, and was US$210 prior to January 15, 2018. Turkish Airlines argues that by requesting payment of the excess baggage fee it correctly applied its Tariff and its general conditions of carriage, and denies Ms. Jain’s request for reimbursement.

Findings of fact

[28] Ms. Jain alleges that Turkish Airlines lost her baby stroller, however the evidence shows that the baby stroller was not lost but delayed in its delivery to her. Consequently, the Agency finds that Ms. Jain’s baby stroller was not lost but instead delivered to her with delay.

ANALYSIS AND DETERMINATIONS

[29] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

DAMAGE AND DELAYED BAGGAGE

[30] Ms. Jain contends that her baby stroller was damaged by Turkish Airlines while travelling from Toronto to Mumbai on January 18, 2017. Turkish Airlines states that it was first made aware of the alleged damaged to the baby stroller in April 2017, almost three months after Ms. Jain’s travel. Thus, Turkish Airlines argues that in accordance with the Montreal Convention, it is not liable for the alleged damage. The Agency notes that Article 31 of the Montreal Convention limits the carrier’s liability if a claim is not made within seven days of the delivery of the damaged baggage. The Agency further notes that Ms. Jain has not filed any arguments or evidence on how the baby stroller was damaged, nor has she provided any reasonable explanation for the delay in sending written notice to Turkish Airlines. Therefore, based on the evidence, the Agency finds that Ms. Jain did not meet the time requirements set out in Article 31 of the Montreal Convention, which is incorporated by reference into Turkish Airlines’ Tariff, and dismisses this aspect of the application.

[31] With respect to the delayed delivery of the baby stroller, Ms. Jain is seeking US$210 in compensation. The Agency’s authority to award compensation to an individual traveller when their baggage is delayed is limited to expenses. As there is neither argument nor evidence from Ms. Jain indicating that she incurred expenses as a result of the delayed delivery of her baby stroller, the Agency also dismisses this aspect of the application.

EXCESS BAGGAGE

[32] It is undisputed by the parties that Ms. Jain was travelling on the return portion of her journey with three pieces of checked baggage (including a car seat) and five pieces of carry-on baggage. Based on the evidence, Ms. Jain was travelling in Economy class. Rule 115(E)(3) of the Tariff provides that Economy class passengers are entitled to check, free of charge, two pieces of baggage not exceeding 23 kg and whose total dimensions do not exceed 272 cm. The evidence further shows that Ms. Jain’s infant was travelling as a lap child, as Ms. Jain’s boarding passes include the suffix “WITH INF” next to her name, signaling that the child did not occupy a seat. Rule 200(B) of the Tariff states that infants travelling on international itineraries must pay 10 percent of the adult fare. Rule115(F)(3) of the Tariff states that children paying 10 percent of the adult fare will be allowed one piece of checked baggage whose sum of the three dimensions does not exceed 115 cm, plus one fully collapsible child’s stroller or push-chair. Therefore, based on the evidence, the Agency finds that Ms. Jain and her infant child were within the free baggage allowance for checked baggage.  

[33] With respect to Ms. Jain’s carry-on baggage, the Agency notes that Rule 115(E)(5) of the Tariff sets out the items that Turkish Airlines will allow a passenger to carry on board its aircraft, and limits baggage to an overnight bag, or similar. Based on the evidence, Turkish Airlines allowed Ms. Jain to carry three pieces of her five pieces of carry-on baggage on board its aircraft. The evidence also shows that Ms. Jain combined two pieces of her carry-on baggage into one piece. Therefore, the Agency finds that Ms. Jain was in excess of the free carry-on baggage allowance by one piece.

[34] Ms. Jain states that she was charged US$210 for her piece of excess baggage. Rule 115(H)(1) of the Tariff states that excess baggage charges will apply when the piece is “both” in excess of the number permitted “and” when it is oversize or overweight. The Agency notes that Turkish Airlines has not made any arguments that Ms. Jain’s piece of baggage, in addition to being over the number permitted, was also oversized or overweight. Therefore, it is reasonable to assume that the excess piece was within size and weight restrictions. Accordingly, in reading Turkish Airline’s Tariff Rule, in order to incur excess baggage charges, a passenger’s baggage must be over the piece limit and overweight or oversized. The Agency further notes that Turkish Airlines states that it applied charges as outlined on its website. Air carriers operating to and from Canada are obligated to apply the terms and conditions of carriage as set out in their tariff on file with the Agency. Given that the charges applied by Turkish Airlines do not appear in its Tariff, the Agency finds that Turkish contravened subsection 110(4) of the ATR.

[35] Furthermore, the Agency notes that in applying a policy outside its tariff creates reasonable doubt, ambiguity or uncertain meaning respecting the rights and obligations of both the carrier and passenger, thus making the tariff unclear. Consequently, the Agency finds that Turkish Airline’s Tariff contravenes paragraph 122(c)(ii) of the ATR.

ORDER

1. The Agency orders Turkish Airlines, pursuant to paragraph 113.1(a) of the ATR, to amend Rule 115(H) of its Tariff to include its policy regarding excess baggage charges, as displayed on its website, and to file with the Agency the revised Tariff Rule as soon as possible, and no later than August 8, 2018.
2. The Agency orders Turkish Airlines, pursuant to paragraph 113.1(b) of the ATR, to reimburse to Ms. Jain the amount of US$210, for the expenses incurred as a result of Turkish Airlines’ failure to apply the terms and conditions set out in its Tariff. This amount is to be paid as soon as possible, and no later than August 8, 2018.