Decision No. 6-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air France for its refusal to transport her aboard Flight No. DL5302 from Montréal, Quebec, to New York, United States of America, on April 23, 2018. The applicant was refused transportation because, during her check-in, she was not able to present the credit card used to purchase the original ticket.

[2] The applicant requests compensation in the amount of EUR 600, which is the amount provided for in Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Regulation (EC) No 261/2004) in the event of denied boarding.

[3] The Agency added Delta as a respondent, as several elements of the application confirmed that Delta’s Tariff entitled International Passenger Rules and Fares Tariff No. DL-1 Containing Local and Joint Rules, Fares and Charges on behalf of Delta Airlines, Inc. Applicable to the Transportation of Passengers and Baggage between Points in the United States/Canada and Points Throughout the World, NTA(A) No. 304 (Tariff) applies to this proceeding.

[4] The Agency will consider the following issues:

• Did Delta properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the amended Air Transportation Regulations, SOR/88-58, as amended (ATR)?
• If Delta did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicant?

[5] For the reasons set out below, the Agency finds that Delta did not properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR as Delta’s Tariff does not allow it to refuse to transport the applicant in the circumstances. That said, although the Agency understands that the applicant was inconvenienced by this situation, the applicant arrived at her final destination on the second scheduled flight segment on her itinerary, on time. The applicant has not demonstrated that she incurred expenses as a result of the refusal to transport other than CAD 10 in taxi fares. The Agency therefore considers that the applicant is entitled to compensation of CAD 10 for taxi expenses.

[6] Consequently, pursuant to section 113.1 of the ATR, the Agency orders Delta to compensate the applicant in the amount of CAD 10. This amount is to be paid to the applicant as soon as possible and no later than February 27, 2020.

BACKGROUND

[7] The applicant purchased, on Delta’s website, a ticket to travel from Montréal, on April 22, 2018, to Casablanca, Morocco, via Paris, France.

[8] The day before the applicant’s departure from Montréal, the first flight segment of her itinerary, that is Flight No. AF347 from Montréal to Paris, was cancelled. The applicant contacted Air France, which reprotected her on an alternative itinerary including Flight No. DL5302 from Montréal to New York on April 22, 2018, Flight No. DL1016 from New York to Paris, to connect to her originally scheduled Flight No. AF1196 from Paris to Casablanca.

[9] When she went to Delta’s check-in counter for Flight No. DL5302 to New York, the applicant was refused transportation because she could not produce the credit card that was used to purchase her original ticket.

[10] Following this refusal of transport, the applicant again contacted Air France, which reprotected her on Flight No. AF349 to Paris leaving that evening. The applicant was then able to travel on Flight No. AF1196 as originally planned, which brought her to her final destination, Casablanca, on time.

PRELIMINARY MATTERS

Addition of Delta as a respondent

[11] On July 8, 2019, the Agency added Delta as a respondent, as several elements of the application confirmed that Delta’s Tariff applies to the proceeding:

• the original ticket was purchased on the Delta’s website;
• the purchase receipt for the replacement flight indicated that the ticket was issued by Delta’s website;
• the electronic replacement ticket—Flight No. DL5302 for which the applicant was refused transportation—indicated that the flight was “marketed by Delta Air Lines”;
• the flight number at issue—DL5302—begins with the letters DL (that is Delta), indicating that it is not a code share with Air France;
• in the terms and conditions attached to the ticket, reference is made to Delta’s contract of carriage.

[12] Air France states in its response that there is no link between its terms and conditions of carriage and the applicant’s complaint. Air France denied any liability to the applicant as the events occurred with respect to a flight operated by Delta.

[13] Delta’s Tariff provides in Rules 1(B) and (C) that in purchasing a ticket with Delta, a valid contract of carriage is created with the purchaser and that Delta’s Tariff will apply if the carrier code or Delta’s name appears on the ticket.

[14] The Agency is of the view that by purchasing the ticket that is the subject of her application, the applicant entered into a valid contract of carriage with Delta and that, in these circumstances, it is Delta’s Tariff that must apply, and not that of Air France.

Denied boarding

[15] The applicant claims the compensation of EUR 600 as provided in the Regulation (EC) No 261/2004 in the event of denied boarding. However, the applicant was not denied boarding. Denied boarding occurs in situations where a passenger is denied at the boarding gate while holding a valid boarding pass. Denied boarding compensation, which is set out in Rule 245 of Delta’s Tariff, does not apply in this case.

[16] In any event, regarding claims made under Regulation (EC) No 261/2004, the Agency stated in Decision No. 10‑C‑A-2014 (Lukács v. British Airways) and recently reiterated in Decision No. 18-C-A-2019 (Meyer v. Wow air): “the Agency makes determinations on provisions related to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) No 261/2004, do not satisfy this criterion..”

THE LAW AND RELEVANT TARIFF PROVISIONS

[17] The relevant provisions of the ATR and Delta’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicant

[18] The applicant argues that, during her check-in for Flight No. DL5302, she was in compliance with the administrative formalities required to board the aircraft and had in her possession all the valid travel documents. She alleges that there is nothing in Delta’s Tariff regarding the requirement to present a credit card in order to be able to check in for a flight.

[19] The applicant states that she did not incur any expenses other than the taxi fees to the airport, which amounted to CAD 10 and for which she did not keep receipts.

Delta

[20] Delta acknowledges the facts alleged by the applicant, namely that the applicant purchased her ticket on Delta’s website and that, following the cancellation of the first segment of her itinerary, Air France reprotected her on Flight No. DL5302.

[21] Delta admits that its staff refused transport to the applicant aboard Flight No. DL5302 because she could not present the credit card she had used to purchase the original ticket. In its response, Delta states, “This requirement is a normal precaution to protect Delta against fraud.”

Findings of facts

[22] It is undisputed that the applicant bought her ticket on Delta’s website, and that she was refused transport at the check-in for Delta’s Flight No. DL5302 because she was not able to present the same credit card used for the purchase of the original ticket.

[23] The applicant does not dispute the fact that she reached Casablanca, her final destination, on time and on the scheduled date, and that she did not incur any expenses, except for taxi costs of about CAD 10.

ANALYSIS AND DETERMINATIONS

Did Delta properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR?

[24] The onus lies with 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.

[25] Delta’s Tariff Rule 25 provides that the carrier may refuse transportation to a passenger with a valid ticket for certain reasons, such as a lack of valid travel documents or disorderly conduct by the passenger. Rule 25(H) of the Tariff provides that the sole recourse available to a passenger who was refused transportation is the recovery of the unused portion of the ticket, as provided in Rule 90(B).

[26] Rule 25(C) of the Delta’s Tariff states that the passenger must present valid proof of identity; otherwise the carrier may refuse transportation. Nothing in this rule or in Delta's complete Tariff mentions an obligation to present a credit card or, as required by the carrier, the credit card used to purchase the original ticket.

[27] In addition, Rule 1(B) of the Tariff implies that it is possible to purchase a ticket for another individual, because it stipulates the obligation to conform with its Tariff terms and conditions either as the person who purchases the ticket or as the person using a ticket purchased by another individual. In addition, Rule 1(D)(2) of the Tariff also states that Delta employees are not entitled to modify the Tariff’s rules.

[28] For all these reasons, the Agency determines that in requiring the applicant to produce the credit card used for the purchase of her original ticket, Delta did not correctly apply the terms and conditions of carriage set out in its Tariff. Delta’s Tariff did not allow it to refuse to transport the applicant on Flight No. DL5302 on April 23, 2019.

If Delta did not properly apply the terms and conditions of its Tariff, what remedy, if any, is available to the applicant?

[29] Other than the taxi costs of CAD 10, the applicant failed to demonstrate to the Agency that she incurred expenses as a result of the refusal to transport. Indeed, she was reprotected for the first time after the cancellation of the flight and was then reprotected on another flight later that same day after the refusal to transport. Although the Agency understands that the applicant was inconvenienced by this situation, the applicant arrived at her final destination as originally provided in her itinerary, and on time.

CONCLUSION

[30] In light of the above, the Agency concludes that by refusing to transport the applicant on its Flight No. DL5302, on April 23, 2018, Delta did not properly apply the terms and conditions of carriage set out in its Tariff and contravened subsection 110(4) of the ATR.

[31] Pursuant to section 113.1 of the ATR, the Agency orders Delta to compensate the applicant in the amount of CAD 10 for the taxi expenses she incurred. This amount is to be paid as soon as possible, but no later than February 27, 2020.

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APPENDIX TO DECISION NO. 6-C-A-2020

Air Transportation Regulations, SOR/88-58, as amended

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.

113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it 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.

International Passenger Rules and Fares Tariff No. DL-1 Containing Local and Joint Rules, Fares and Charges on behalf of Delta Airlines, Inc. Applicable to the Transportation of Passengers and Baggage between Points in the United States/Canada and Points throughout the World (tariff)

RULE 1 – GENERAL PROVISIONS

(A) Contract of Carriage

When you buy a ticket for travel on Delta, you enter into a contract of carriage with us. The terms of your contract are set forth in:

(1)  your Ticket

(2)  these Conditions of Carriage

(3)  our published fare rules and regulations, which may govern the calculation of the fare and other charges that apply to your itinerary. If your ticket is priced by delta.com, a Delta agent, or a computer reservation system, these fare rules and regulations will be included in the calculation of the ticket price that we quote to you.

(B) International Conditions of Carriage

This document is Delta's International Conditions of Carriage, and states the terms upon which Delta offers to transport you on any itinerary for International Carriage. By purchasing a ticket for International Carriage on Delta, or by using a ticket purchased for you by someone else, you agree to be bound by these terms.

(C) Application of International Conditions of Carriage

….

(2)  Tickets Showing Delta Name or Carrier Code

These rules apply to all international flights or flight segments in which our name or carrier code is indicated in the carrier box on your ticket, including flights operated by our code-share partners.

….

(D) Amendments to Conditions of Carriage

(1) Amendments by Delta

Delta may amend any provisions of this Contract of Carriage at any time, except as provided by law. Your travel will be governed by the rules that were in effect on the date you purchased your ticket; provided, however, that Delta reserves the right to apply rules currently in effect on the date of your travel where reasonably necessary for operational efficiency and where the change in rule does not have a material negative impact upon you.

(2) Authority of Delta Employees and Ticketing Agents

Except where otherwise provided by law, no Delta employee or ticketing agent has the authority to alter, modify or waive any provision of this Contract of Carriage unless authorized by a Delta corporate officer. Delta appointed agents and representatives are only authorized to sell tickets for air transportation pursuant to the approved fares, fare rules and Contract of Carriage of Delta. This rule supersedes any conflicting provision in this contract of carriage.

.…

RULE 25 – REFUSAL TO TRANSPORT

Delta may refuse to transport any passenger, and may remove any passenger from its aircraft at any time, for any of the following reasons:

….

(C)  Proof of identity

When a passenger refuses on request to produce positive identification; provided however that Delta shall have no obligation to require positive identification of persons purchasing tickets and/or presenting tickets for the purpose of boarding aircraft.

….

(E)  Failure to comply with Delta’s rules or contract of carriage

When a passenger fails or refuses to comply with any of Delta's rules or regulations or any term of the contract of carriage.

….

(H)  Recourse of passenger

All passengers are prohibited from engaging in any conduct that would authorize Delta to refuse transport under this Rule. The sole recourse of any person refused carriage or removed en route for any reason specified in this Rule shall be recovery of the refund value of the unused portion of his or her ticket as provided in Rule 90(B).