Decision No. 30-C-A-2019

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a delay in the outbound leg of their round-trip travel. The applicants are seeking a 50 percent refund of their tickets, and damages for missing one day of their car rentals and house rental, totalling CAD 3,520.00.

[2] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in its Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) No. 3 (Tariff), relating to schedule irregularities and delays, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?
2. If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicants?

[3] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions of carriage set out in its Tariff, relating to schedule irregularities and delays, as required by subsection 67(3) of the CTA. Accordingly, the Agency dismisses the application.

BACKGROUND

[4] The applicants, a group of six passengers, filed an application with the Agency against Air Canada regarding a delay in the outbound leg of their round-trip travel, with a final destination of Whitehorse, Yukon. Five of the applicants booked round-trip tickets from London, Ontario to Whitehorse, with connections in Toronto, Ontario, and Vancouver, British Columbia. The sixth passenger booked a similar itinerary but started her trip in Toronto. The passengers’ booking groups can be classified as follows:

Group 1:

4 passengers with an itinerary of London to Toronto (Flight No. QK8650), Toronto to Vancouver (Flight No. AC0125) and Vancouver to Whitehorse (Flight No. QK8889).

Group 2:

1 passenger with an itinerary of London to Toronto (Flight No. QK8652), Toronto to Vancouver (Flight No. AC0125) and Vancouver to Whitehorse (Flight No. QK8859).

Group 3:

1 passenger with an itinerary of Toronto to Vancouver (Flight No. AC0125) and Vancouver to Whitehorse (Flight No. QK8889).

[5] Group 1 encountered a one-hour delay for their first flight, QK8650, from London to Toronto on August 14, 2017. All three groups encountered a delay for Flight No. AC0125 from Toronto to Vancouver, which was scheduled to arrive in Vancouver at 21:20 on August 14, 2017. As a result of the delay in Toronto, the applicants arrived almost three hours later in Vancouver, at 00:08 on August 15, 2017, causing them to miss their flight from Vancouver to Whitehorse, which was scheduled to depart at 22:10. Air Canada provided the applicants with hotel accommodations at an Econolodge one hour away from the Vancouver International Airport. The applicants arrived at the airport at 11:00 on August 15, 2017 and were informed that the next available flight to Whitehorse would not be until 18:10 that evening. One of the applicants was able to take an earlier flight, departing at 15:30, while the rest of the applicants arrived in Whitehorse later that evening.

PRELIMINARY MATTER

[6] In their application, the applicants argue that they were inconvenienced, exhausted and suffered emotional distress due to their travel experience. However, the Agency does not have the jurisdiction to order payment of compensation for pain and suffering or loss of enjoyment, as consistently stated in previous decisions, such as Decision No. 34-C-A-2018 (Bencker v. Icelandair ehf), Decision No. 13‑AT-A-2018 (Sharif v. Air Canada) and Decision No. 112-C-A-2017(Paes et al v. Qatar Airways).

THE LAW AND RELEVANT TARIFF PROVISIONS

[7] Subsection 67(3) of the CTA requires that the holder of a domestic licence (i.e. an air carrier) apply the terms and conditions set out in its tariff.

[8] If the Agency finds that a carrier has failed to properly apply its tariffs, section 67.1 of the CTA empowers the Agency to direct the carrier to:

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and

(c) take any other appropriate corrective measures.

[9] Rules 80 and 105 of Air Canada’s Tariff, which was in place at the time of the applicants’ travel, are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants

[10] The applicants state that when they arrived at the Toronto Pearson International Airport they were informed that Flight No. AC0125 to Vancouver had been delayed. The applicants claim that they were placed on standby three times. The applicants argue that they technically lost two days of vacation, two days of their rental house and two days of their two-car rentals (one day due to the delay and one day for recovering from exhaustion due to the delay). The applicants seek compensation for one day of missed car rentals and house rental, and a 50 percent refund of their tickets, for a total of CAD 3,520.00.

Air Canada

[11] Air Canada states that Flight No. AC0125 was delayed due to a mechanical problem. It substantiates this claim with an affidavit from its Aircraft Technical Support Manager, which states that the aircraft was delayed due to a mechanical malfunction and a problem with its carbon seal. Air Canada argues that this mechanical issue was not foreseeable and that it was not possible to operate the aircraft until it was repaired. Air Canada states that it did its best to get the aircraft back into working order as quickly as possible.

[12] Air Canada states that because it was not possible to accommodate all of the applicants on the same flight, it presented them with the opportunity to be placed on standby for two alternate flights, both departing less than two hours after the scheduled departure time of Flight No. AC0125. Air Canada submits that the applicants refused the reprotection offered as they wanted to stay on the booked itinerary. Air Canada provides a Historical Passenger Name Record (HPNR) as evidence of this rejection. Air Canada states that it met its legal and contractual obligations as per Rule 80 (Schedule Irregularities) of its Tariff, which states that schedules are not guaranteed and are subject to change without notice. Air Canada states that it cannot be held liable for changes in flight times due to mechanical problems.

[13] Air Canada states that after the applicants missed their connection in Vancouver, it provided them with hotel accommodations and transportation, and booked them on the first available flight the next day, thus fulfilling their requirements under Rule 80 of its Tariff. Air Canada states that, as a gesture of goodwill and without admitting liability, it issued a cheque to the applicants in the amount of CAD 439.00, representing the value of the one-day loss of the house rental and car rentals. Air Canada provided a copy of the cheque as evidence in its answer, and issued each of the applicants 25 percent promotion codes applicable to any flight offered by Air Canada.

[14] Air Canada also points out that, under Rule 105 of its Tariff, no action can be claimed for any damages resulting from a failure to transport passengers unless they contact the carrier in writing within 21 days after the alleged occurrence of the events. Air Canada states that the incident took place on August 14, 2017, and that the applicants first contacted Air Canada one month later, on September 15, 2017. Air Canada submits that according to this tariff rule, the complaint should be dismissed.

[15] Finally, Air Canada states that according to Rule 105(K)(1) of its Tariff, Air Canada is not liable for delay or other damages, unless such damage is caused by the negligence of the carrier.

The applicants’ reply

[16] The applicants object to Air Canada’s claim that they were offered alternate flights but refused. They state that they would have gratefully accepted any other options, and that they did not insist on travelling together. The applicants point out that they all knew where they were supposed to go, and that they never stated that they wished to follow their original itinerary.

[17] The applicants also argue that Rule 80(C) of Air Canada’s Tariff sets out eligible compensation for passengers who suffer a loss due to delay; however, they did not acknowledge or deny Air Canada’s claim that a refund was issued to them for one day of their house rental and car rentals.

ANALYSIS AND DETERMINATION

[18] The onus is on the applicants 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.

[19] Rule 80(A)(1) of Air Canada’s Tariff states that schedules are not guaranteed and are subject to change without notice. Rule 80(A)(3) of its Tariff states that the carrier will undertake to use its best efforts to carry the passenger with reasonable dispatch, but that no particular time is fixed for the commencement or completion of carriage.

[20] Rule 80(C) of the Tariff sets out Air Canada’s responsibilities in the event of a schedule irregularity, which is defined as a delay in scheduled departure or arrival of a flight. Rule 80(C)(4) of its Tariff states the following:

In the event of a scheduled irregularity, the Carrier will … :

a) Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service …

[21] Air Canada argues that it fulfilled its requirements under its Tariff as it attempted to reprotect the applicants in Toronto, considering that they were on standby for multiple flights, and reprotected them on the next available flight out of Vancouver.

[22] Air Canada argues that it provided the applicants with an opportunity to be placed on standby for alternate flights which still had available seats in Toronto, but that they declined this reprotection option as they wanted to all be seated together. The applicants deny this assertion and argue that they were not provided this option.

[23] Contrary to Air Canada’s assertion, the Agency is of the opinion that the supporting HPNR provided by Air Canada does not provide any evidence that these alternate flights were offered to the applicants as an option. At best, the HPNR appears to indicate that Air Canada attempted to communicate with the applicants to discuss reprotection options but failed to reach them. However, the applicants were reprotected on the next available flights a few hours later. Therefore, the Agency finds that in reprotecting the applicants on alternate flights, Air Canada effectively applied its Tariff.

[24] The applicants state that they had to walk from gate to gate which corroborates their standby status in Toronto. Ultimately, the applicants arrived in Vancouver three hours later than they were scheduled to arrive.

[25] With respect to the delays in Vancouver, Rule 80(C)(5)(b) of Air Canada’s Tariff states the following:

(5) Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control … Air Canada will offer:

…

b) For a schedule irregularity lasting overnight or over 8 hours, hotel accommodation subject to availability and ground transportation between the airport and the hotel. This service is only available for out of town passengers.

[26] As the applicants landed in Vancouver at 01:30 and were reprotected on Flight No. QK8859 departing at 12:55 and Flight No. QK8889 departing at 18:10, with both delays lasting overnight and over 8 hours, Air Canada provided them with hotel accommodations, meals and ground transportation between the airport and the hotel. The applicants do not make any claims for out‑of‑pocket expenses that they incurred. Therefore, the Agency finds that by providing hotel accommodations, meals and transportation to the applicants, Air Canada applied its Tariff, and that the applicants apparently incurred no out-of-pocket expenses.

[27] As a result of the delay, the applicants are seeking a 50 percent refund of their tickets, and a refund for one day of their car rentals and house rental.

[28] Though the applicants request that 50 percent of their ticket cost be refunded, the Agency notes that they have used these tickets and completed their journey despite the delay. The Agency has found in the past that there is no basis upon which to order the refund of a ticket when the trip has been completed, as in Decision No. 53-C-A-2018 (Rotilio v. Air Canada), Decision No. 56‑C‑A‑2018 (Dotan et al. v. El Al Israel and Jet Airways) and Decision No. 51‑C‑A‑2018 (Kapur v. Jet Airways).

[29] The applicants also request that CAD 305.00 be refunded to them for one day of their Airbnb rental, and CAD 134.00 for one day of their two-car rentals. The Agency notes that Air Canada provided the applicants with a cheque for CAD 439.00 as “a goodwill gesture” for the Airbnb rental and car rentals. This is substantiated by a picture of the cheque in Air Canada’s answer, which indicates that this cheque was issued on August 24, 2018. In their reply, the applicants did not acknowledge receipt of this cheque; however, the Agency is satisfied that the payment has been made and that the applicants have already been compensated for the Airbnb rental and car rentals.

[30] In its answer, Air Canada also argues that, under Rule 105 of its Tariff, it is not liable for damages when the request is not made to the carrier in a timely manner, nor if the damage is not caused by negligence, and asks that the case be dismissed. However, Air Canada has already refunded the applicants their lost rental costs as a goodwill gesture. This is the total amount of damages claimed by the applicants with the exception of the ticket refund, to which the Agency has already determined that the applicants are not entitled. As such, there is no need to further analyze whether Air Canada should be liable to pay damages.

[31] Based on the above, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff, relating to schedule irregularities and delays, as required by subsection 67(3) of the CTA.

CONCLUSION

The Agency dismisses the application.

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APPENDIX TO DECISION NO. 30-C-A-2019

Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) No. 3

RULE 80 – SCHEDULE IRREGULARITIES

A. General

1. Schedules not guaranteed

Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of the Carrier is authorized to bind the Carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the Carrier’s website or by referring to airport terminal displays.

2. Carrier not responsible

Carrier assumes no responsibility for passenger making connections not included as part of the itinerary set out in the ticket. The Carrier is not responsible for changes, errors or omissions either in timetables or other representations of schedules. The Carrier will not guarantee and will not be held liable for cancellations or changes to flight times that appear on passengers’ tickets due to force majeure, including labour disruptions or strikes.

However, where applicable, a passenger may invoke the provisions of the Convention regarding liability in the case of delay.

3. Best efforts

Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto the Carrier may, without notice, substitute alternate Carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.

B. Operating Carrier to arrange alternate transportation

The Carrier operating the flight that is experiencing the schedule irregularity will make alternative transportation arrangements for the passenger.

C. Schedule irregularity

1. Definition

Schedule irregularity means any of the following:

1. Delay in scheduled departure or arrival of a Carrier’s flight
2. Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of a Carrier’s flight, or
3. Substitution of equipment or of a different class of service, or
4. Schedule changes which require rerouting of passenger at departure time of the original flight.

2. In the case of a schedule irregularity, the Carrier shall implement the provisions of this rule, unless applicable local law provides otherwise.

3. Given that passengers have a right to information on flight times and schedule changes, the Carrier will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change.

4. In the event of a scheduled irregularity, the Carrier will either:

1. Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at the Carrier’s option;
2. Endorse to another Carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at the Carrier’s option;
3. Reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from RULE 100 – REFUNDS, the Carrier will require no additional payment from the passenger but will refund the difference if it is lower or,
4. If the passenger chooses to no longer travel or if the Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount time, make involuntary refund in accordance with RULE 100 – REFUNDS (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,
5. upon request, for cancellations within the Carrier’s control, return passenger to point of origin and refund in accordance with RULE 100 – REFUNDS as if no portion of the trip had been made (irrespective of applicable fare rules), or subject to passenger’s agreement, offer a travel voucher for future travel in the same amount; or, upon passenger request.
6. For cancellations within the Carrier’s control, if passenger provides credible verbal assurance to the Carrier of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for On My Way customers, for cancellations within or outside the Carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule to arrive appreciably earlier than the options proposed in a), b), c) or d) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damages, if any, under the applicable Convention, or under the law when neither convention applies.

Note: additional services are provided to On My Way customers, as detailed below in RULE 80 – SCHEDULE IRREGULARITIES (E):

5. Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control (and outside its control, for On My Way customers) Air Canada will offer:

1. For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board cafe, of an amount dependent on the length of the delay.
2. For a schedule irregularity lasting overnight or over 8 hours, hotel accommodation subject to availability and ground transportation between the airport and the hotel. This service is only available for out of town passengers.
3. If passengers are already on the aircraft when a delay occurs, the Carrier will offer drinks and snacks if it is safe, practical and timely to do so. If the delay exceeds 90 minutes and circumstances permit, the Carrier will offer passengers the option of disembarking from the aircraft until it is time to depart.

D. Free baggage allowance

An involuntarily rerouted passenger shall be entitled to retain the free baggage allowance applicable for the type of service originally paid for. This provision shall apply even though the passenger may be transferred from one fare class to another.

E. On My Way service

In addition to the services set out herein, Air Canada will provide additional services to customers who purchase the On My Way service.

1. The On My Way service may be purchased on Air Canada’s website for flights operated by Air Canada, Air Canada Rouge and Air Canada Express within Canada booked more than 96 hours prior to travel.
2. The applicable fee is $25 for short-haul (up to 1609 km/1000 miles) or $35 for long haul flights (1610 km/1001 miles or more) per direction, subject to applicable taxes. Fee is non-refundable.
3. The additional services provided to On My Way customers are, in the case of any schedule irregularity:

a. Exclusive toll free access to the On My Way desk, available 24/7, and staffed with specialized Air Canada agents available to provide assistance;

b. Automatic flight notification, by e-mail and SMS (when a mobile phone number has been provided), commencing four (4) hours prior to the scheduled departure time providing gate and connecting flight information;

c. Where no flight is available for re-booking and where the trip can be completed through ground transportation, passenger will be provided, at his or her option, with a car rental (with a provider selected by Air Canada), within a maximum of 200 kilometers from location of passenger, or compensation as follows:

i. A parking allowance (up to a maximum of $40) where passenger has incurred parking expenses; or, alternatively,

ii. A taxi allowance (up to a maximum of $100), where passenger has incurred taxi expenses.

Passenger may receive compensation for only one form of the compensation indicated above. Passenger may be requested to provide receipts for parking or taxi expenses incurred.

4. Should passenger, prior to or following a flight delay or cancellation, elect to cancel his or her flight, then passenger shall not be entitled to any of the additional On My Way services.

5. Air Canada is not responsible for the acts or omissions of third party service providers offering air transportation, hotels, car rental or other services as described in this rule for passengers purchasing On My Way. All such services are subject to, and passenger must meet, the terms, conditions and other requirements imposed by these third-party suppliers (e.g., qualifications for car rental). Air Canada is not liable for failure by passenger to meet these terms, conditions and requirements. The liability of such service providers may, in turn, be limited by their tariffs, conditions of carriage as well as international conventions and arrangements. Conditions of carriage apply to flights bound to and from passenger’s destination, some of which limit or exclude liability.

RULE 105 – LIABILITY OF CARRIERS

A. Personal injury and death – time limitations

No action shall be maintained for any injury to or for the death of any passenger unless notice of the claim is presented in writing to the general offices of the Carrier alleged to be responsible therefore within 90 days after the alleged occurrence of the events giving rise to the claim, and unless the action is commenced within 1 year after such alleged occurrence.

B. Other-time limitations

No action shall be maintained for any loss of, or any damage to, or any delay in the delivery of, any property or baggage, or on any other claim (excepting only personal injury or death), arising out of or in connection with transportation of, or failure to transport any passenger or property or baggage unless notice of the claim is presented in writing to an office of the Carrier participating in this rule alleged to be responsible therefore forthwith and, at the latest, within 7 days from the date of receipt in the case of damage and within 21 days after the alleged occurrence of the events giving rise to the claim, and unless the action is commenced within 2 years after such alleged occurrence, but failure to give the above notice shall not be a bar if the claimant established to the satisfaction of the Carrier that he was unable to give such notice.

C. Preliminary notice

In the case of allegedly missing, delayed or damaged baggage the provisions in (b) shall apply, except that preliminary notice of loss, delay or damage must be submitted to the Carrier, in writing, after the arrival of the flight on which the loss, delay or damage is alleged to have occurred, and prior to the passenger’s leaving the airport. Receipt by the person entitled to delivery of checked baggage without such a preliminary notice within the time aforesaid is prima facie evidence that the same has been delivered in good condition.

D. Overcharges

In addition to the requirements in paragraph (b) above, no claims for overcharge shall be valid and no action shall be maintained thereon more than two years after the date of sale of the ticket, unless such claim or action is accompanied by the passenger coupon portion of said ticket.

E. Carrier shall not be liable for consequential, special, punitive or exemplary damages arising from or connected in any way with any act or omission by the Carrier, its employees or agents, whether or not such act or omission was negligent and whether or not the Carrier had knowledge that such damages might be incurred.

F. Where the Carrier would otherwise be liable in respect of the death or injury of a passenger carried for hire sustained during the operations of flight embarkation or disembarkation or at any time while the passenger is aboard the aircraft, the Carrier shall comply with passenger liability insurance and security provisions contained in the Air Transportation Regulations, SOR/88-58, as applicable, provided that this provision shall not apply in respect of any passenger whose condition is such as to involve an unusual risk or hazard in regard to loss or damage which would not have been sustained but for the age or mental or physical condition of such passenger including in the case of a pregnant passenger any injury, illness or disability sustained by an unborn child.

G. Limitations of liability

The acceptance for transportation by the Carrier of a passenger whose status, age, or mental or physical condition is such as to involve any unusual hazard or risk to himself, or, in the case of a pregnant passenger, to any unborn child (whether or not the Carrier has knowledge of such status, age, or mental or physical condition) shall be only upon the condition (a) that the Carrier shall not be liable for any loss or damage arising out of an injury, illness or disability (or any aggravation or consequence thereof, including death) sustained by the passenger, if such loss or damage would not have been sustained but for such status, age, or mental or physical condition; and further (b) that, in the case of a pregnant passenger, the Carrier shall not be liable for loss or damage arising out of any injury, illness or disability (or any aggravation or consequence thereof, including death) sustained by an unborn child.

H. Successive Carriers

Carriage to be performed under one ticket or under a ticket and any conjunction ticket issued in connection therewith by several successive Carriers is regarded as a single operation.

I. Laws and provisions applicable

1.  All carriage hereunder and other services performed by each Carrier are subject to:

1. Applicable laws, government regulations, orders, and requirements;
2. Provisions set forth in the passenger’s ticket;
3. This tariff, general conditions of carriage and applicable fare rules;

2. Normal Carrier limit of liability will be waived for substantiated claims involving loss damage or delay in delivery to mobility aids such as wheelchairs, walkers, crutches, scooters and other mobility aid. When such items have been accepted into the care of the Carrier as checked baggage or otherwise.

Note: the liability of the Carrier for substantiated claims involving the loss of, damage to, or delay in delivery of mobility aids, when such items have been accepted as checked baggage or otherwise, is to be based on the cost of the repair or replacement value of the mobility aid.

3. In case of damaged or delayed wheelchairs, walkers, crutches, scooters and other mobility aids if a damaged aid can be repaired, the Carrier will arrange, at its expense, for the prompt and adequate repair of the aid and for its return to the passenger as soon as possible. A temporary replacement will be obtained without undue delay while the passenger’s mobility aid is being repaired or returned.

J. Limitations of liability – baggage

1. (Applicable for transportation solely within Canada only and not in conjunction with any international travel.) Liability for the loss of, damage to, or the delay in delivery of, baggage or other personal property shall not be more than $1,500 per passenger unless a higher value is declared in advance and charges are paid pursuant to Carriers regulations as defined in paragraph (L) below (Declaration of higher value). In such a case, the liability of the Carrier shall be limited to such higher declared value. In no case shall the Carriers liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss. These limitations shall also apply to baggage or other personal property accepted by the Carrier for temporary storage at a city or airport office or elsewhere before or after the passengers trip.

K. Limitations of liability – general

1. Except as provided herein, or in other applicable law:

1. Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred to as “damage“) to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by the Carrier incidental thereto, unless such damage is caused by the negligence of the Carrier.
2. Carrier is not liable for any damage directly and solely arising out of its compliance with any laws, government regulations, orders, or requirements or from failure of passenger to comply with same.

2. Under no circumstances will the Carrier be liable for the loss, delay or damage to unchecked baggage or cabin baggage not attributed to the negligence of the Carrier. Assistance rendered to the passenger by the Carrier’s employees in loading, unloading or trans-shipping of unchecked or cabin baggage shall be considered as a gratuitous service to the passenger.

3. Carrier is not liable for damage to a passenger’s baggage caused by property contained in the passenger’s baggage. Any passenger whose property caused damage to another passenger’s baggage or to the property of the Carrier shall indemnify the Carrier for all losses and expenses incurred by the Carrier as a result thereof.

4. Carrier shall not be liable for the destruction, loss, damage, or delay in delivery of any property which is not acceptable for transportation in accordance with RULE 60 – BAGGAGE or for any other loss or damage of whatever nature resulting from any such loss or damage or from the transportation of such property, including damage or delay to perishable items or loss or delay of unsuitably or inadequately packed items, to the extent that the destruction, loss or damage resulted from the inherent defect, quality or vice of the baggage, or, in case of delay, that the Carrier, its agents, and servants took all measures that could reasonably be required to avoid the damage or that it was impossible to take such measures. This exclusion is applicable whether the non-acceptable property is included in the passenger’s checked baggage with or without knowledge of the Carrier.

5. Liability of the Carrier for damages shall be limited to occurrences on its own line, except in the case of checked baggage as to which the passenger also has a right of action against the first or last Carrier.

6. A Carrier issuing a ticket or checking baggage for carriage over the lines of another Carrier does so only as agent.

7. Carrier shall not be liable for punitive, exemplary damages or for any damages with no sufficient causal link, arising from or connected in any way with any act or omission by the Carrier, its employees or agents, whether or not such act or omission was negligent and whether or not the Carrier had knowledge that such damages might be incurred.

8. Any exclusion or limitation of liability of the Carrier under this tariff or the ticket shall apply to agents, servants, or representatives of the Carrier acting within the scope of their employment and also to any person whose aircraft is used by the Carrier and its agents, servants or representatives acting within the scope of their employment.

9. All claims are subject to proof of amount of loss. The Carrier may disallow any claim for loss or damage which contains misrepresentations with respect to the nature or amount of such loss or damage, the Carrier may also disallow claims when the passenger fails to provide proof of loss in the form of receipts of purchase unless other sufficient proof of loss is provided.

L. Declaration of higher value

1. A passenger may, when checking in for a flight and presenting property for transportation, pay an additional charge for each Carrier on which the property is to be transported and declare a value higher than the maximum amounts specified in (J). The additional charge is $0.50 per each $100 or fraction thereof. This additional charge must be paid in advance for each Carrier and for each leg. In which event, the Carrier’s liability shall not exceed such higher declared value.

2. Limits on declared higher values the declared value for personal property, including baggage, shall not exceed the limits of $2,500.

Note: the amount specified above will be in Canadian currency when the baggage is presented to a Carrier at a point in Canada and in US currency when the baggage is presented to a Carrier at a point in the United States.

M. Modification and waiver

No agent, servant, or representative of the Carrier has authority to alter, modify, or waive any provisions of the contract of carriage of this tariff.

N. Severability

Should any provision in this tariff or in the ticket be determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, all other provisions shall nevertheless remain valid, binding and effective.