Decision No. 100-C-A-2017

November 10, 2017

APPLICATION by Farzana Mahida, on behalf of her minor child, against Jet Airways (India) Limited (Jet Airways).

Case number: 
17-02390

SUMMARY

[1] Farzana Mahida filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), concerning Jet Airways’ alleged refusal to carry her unaccompanied son from Mumbai, India to Toronto, Ontario, Canada, via London, England on August 21, 2016.

[2] Ms. Mahida is seeking relief in the amount of $1,520.05, which includes $1,220.05 to recover the expense that she incurred to purchase a new ticket for her son, and $300 for the associated “unaccompanied minor” fee.

[3] The issue before the Agency, given the alleged refusal to carry, is whether Jet Airways applied a term and condition that was not set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), thereby contravening subsection 110(4) of the ATR.

[4] For the reasons set out below, the Agency finds that Jet Airways, in issuing a ticket that contained a code-share flight segment for the carriage of an unaccompanied minor, applied a term and condition that was not set out in its Tariff. In addition, the Agency finds that Jet Airways’ Tariff Rule 25(IV)(1) is unclear because it does not set out the carrier’s policy with respect to the acceptance of unaccompanied minors for code-share transportation. Therefore, the Agency orders Jet Airways to:

  1. amend Tariff Rule 25(IV)(1) to include a statement that unaccompanied minors will not be accepted for code-share transportation; and,
  2. compensate Ms. Mahida in the amount of $1,520.

BACKGROUND

[5] The following is a summary of the facts as described by Ms. Mahida. Although the application was delivered to the respondent’s e-mail address, the respondent did not file an answer to the application.

[6] Ms. Mahida purchased a ticket for her then eight year-old son to travel roundtrip with Jet Airways from Toronto to Mumbai as an unaccompanied minor. Upon check in in Mumbai, Ms. Mahida’s son was refused carriage because Air Canada, the operating carrier of her son’s connecting flight between London and Toronto, does not accept unaccompanied minors for transportation originating at a connection point. Jet Airways tried to re-book Ms. Mahida’s son on another Jet Airways’ flight to Toronto, however, no space was available. In order to get her son back to Toronto, Ms. Mahida booked a last-minute, one-way flight with Lufthansa departing Mumbai the on following day, August 22, 2016.

PRELIMINARY MATTERS

Code Share

[7] Code share refers to arrangements where an air carrier provides services by selling transportation in its name (code) on flights operated by another air carrier.

[8] The Agency is responsible for approving services operated pursuant to code-share arrangements. This responsibility applies to all licensed international air services to or from Canada for the transportation of passengers or goods, separately or in combination.

[9] In Decision No. 12-A-2017, the Agency granted code-share authority to Jet Airways to enable it to sell transportation between India and Canada in its own name on flights operated by Air Canada between Canada and the United Kingdom. This authority includes a condition whereas the carrier that sells the transportation to the passenger must apply its own published tariff, on file with the Agency and in effect, even if another carrier operates the flight.

[10] In this case, Ms. Mahida’s son’s itinerary involved carriage from London to Toronto on a Jet Airways and Air Canada code-share flight. Ms. Mahida’s son’s ticket indicates that Jet Airways marketed the flight under its code as Flight No. 9W5069; therefore, Jet Airways’ Tariff applies to this case.

THE LAW

[11] 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.

[12] 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.

[13] Subsection 122(c) of the ATR requires that every tariff contain terms and conditions of carriage that clearly state the air carrier’s policy in respect of at least the following matters, namely,

[...]

(ii) acceptance of children for travel.

[14] Jet Airways’ Tariff Rule 25 (IV)(1) outlines the carrier’s policy regarding the carriage of unaccompanied minors and states:

[…]

(c) Upon advance arrangements, and in addition to the above provisions, Jet Airways will accept children for on-line transportation provided space has been confirmed to destination or next point of stopover.

[…]

(f) Unaccompanied children will be accepted for interline carriage in accordance with paragraph (1)(a) and (b) above, and subject to the conditions of carriage of the interline carrier and provided fees for such service, if any, imposed by the interline carrier(s) are paid before the commencement of journey directly to the carrier charging the fee.

POSITION OF MS. MAHIDA AND FINDINGS OF FACT

[15] Ms. Mahida states that as per the airline’s procedures, she made an on-line booking for her eight year old son to travel with Jet Airways, and then followed up by calling the airline to inform them that he was an unaccompanied minor. She states that a staff member made a note on his file and explained to her the unaccompanied minor service. Ms. Mahida adds that she was advised that unaccompanied minor fees are required to be paid upon check in prior to each flight.

[16] Ms. Mahida submits that when her son was refused carriage she had a “very lengthy” conversation with the Jet Airways manager in Mumbai, and questioned why her booking was accepted in the first place.

[17] Ms. Mahida states that she communicated with Jet Airways prior to and during her son’s travel and was never informed that her son would not be able to travel on the return flight booked, or that the booking needed to be changed. She further states that had she been informed at any point about the complication with her son’s booking, she would have had ample time to make new flight arrangements, rather than have her son be denied boarding at check in.

[18] Ms. Mahida claims that her son being refused carriage caused inconvenience for her family members, as they were left with the stress of rushing to find a new flight for her son to return home, and in so doing, were required to stay overnight in Mumbai.

[19] Ms. Mahida submits that her concern lies not with the specifics of Jet Airways’ policy, but rather in not being provided with any notice or warning that her son would not be able to travel given the other airline’s restrictions. She states that it is a horrible feeling for a parent to bear when an eight year old child who expects to board a flight and see his parents at the end of his trip is instead refused transportation.

[20] Ms. Mahida states that she received a refund for the unused portion of her son’s return ticket.

[21] In support of her application, Ms. Mahida submitted her son’s itinerary with Lufthansa, and her credit card statement indicating the amounts charged by Lufthansa for her son’s ticket and the associated “unaccompanied minor” fee.

Findings of Fact

[22] Jet Airways did not file an answer to the application; therefore the facts and evidence presented by Ms. Mahida are not challenged. Based on the record before it, the Agency makes the following findings of fact.

[23] Ms. Mahida’s son held a confirmed ticket with Jet Airways to travel on August 21, 2016 on Flight No. 9W120 from Mumbai to London, and on Flight No. 9W5069 from London to Toronto.

[24] The evidence establishes that Jet Airways sold Ms. Mahida a ticket for her son to travel roundtrip from Toronto to Mumbai with the knowledge that the child would be travelling as an unaccompanied minor. The outbound portion of the unaccompanied minor’s journey, Toronto to Mumbai via Amsterdam, was travelled without incident on Jet Airways’ operated flights. The return portion of his journey contemplated a flight segment operated by Jet Airways from Mumbai to London and a Jet Airways and Air Canada code-share flight operated by Air Canada from London to Toronto.

[25] In Mumbai, Jet Airways refused to allow the unaccompanied minor to board his flight to London as its code-share partner, Air Canada, does not accept unaccompanied minors connecting from a partner carrier to an Air Canada operated flight.

[26] Jet Airways was the carrier that sold Ms. Mahida the round-trip ticket for her son, with the knowledge that he would be travelling as an unaccompanied minor. Moreover, Jet Airways was the same carrier that prevented the unaccompanied minor from boarding his flight in Mumbai because he was an unaccompanied minor.

[27] Ms. Mahida purchased a ticket with Lufthansa Airlines that allowed her son to return to Toronto. The cost of that ticket, including the “unaccompanied minor” fee, was $1,520.05.

ANALYSIS AND DETERMINATIONS

[28] Jet Airways’ Tariff Rules 25 (IV)(1)(c) and (f) provide that Jet Airways will only accept for carriage unaccompanied minors if they are travelling on “on-line” transportation or “interline” transportation, and in the case of interline transportation, the terms and conditions of the interline carrier will apply.

[29] The terms “on-line” and “interline” are not defined in the Canada Transportation Act, S.C., 1996, c. 10, as amended nor the ATR. The International Air Transport Association’s Compendium of International Civil Aviation, Second Edition, defines the terms as:

On-line - A generic term used in conjunction with another word to describe anything involving carriage over the lines of one and the same airline only.

Interline - A generic term used in conjunction with another word to describe anything involving two or more airlines.

[30] The Agency notes that air carriers participating in interline transportation operate flights under their own airline name (code), and apply their own terms and conditions of carriage to their coded flight segment. In this case, the Agency finds that the unaccompanied minor’s return journey meets the definition of interline transportation, to the extent that it utilized the transportation of two airlines, Jet Airways and Air Canada. However, unlike interline transportation, the Air Canada flight segment was coded as Jet Airways, and Jet Airways’ terms and conditions of carriage applied to the entire journey, even though the London to Toronto flight was operated by Air Canada. Therefore, the Agency finds that neither Tariff Rule 25 (IV)(1)(c) nor Tariff Rule 25 (IV)(1)(f) (the latter speaks directly to interline carriage) apply to the carriage of unaccompanied minors travelling on code-share flights. Consequently, the Agency finds that Jet Airways, in issuing a ticket that contained a code-share flight segment for the carriage of an unaccompanied minor, applied a term and condition that was not found in its Tariff and thereby contravened subsection 110(4) of the ATR.

[31] Furthermore, the Agency finds that the absence of any reference to code-share transportation in Tariff Rule 25 (IV)(1) creates reasonable doubt, ambiguity or uncertain meaning respecting the rights and obligations of both the carrier and passengers, and is therefore unclear, and contravenes 122(c)(ii) of the ATR.

[32] Ms. Mahida is seeking compensation in the amount of $1,520.05 to cover the expense associated with purchasing a new ticket with Lufthansa for her son. The Agency notes that Jet Airways refunded the return portion of the unaccompanied minor’s ticket. However, based on the evidence, Jet Airways did not re-book the unaccompanied minor on another of its flights or endorse his ticket to another carrier to ensure his safe passage back to Toronto. The Agency further notes that Jet Airways’ negligence in issuing a ticket for the carriage of an unaccompanied minor, when it could not provide the service purchased, adversely affected Ms. Mahida as her unaccompanied son was stranded in Mumbai, and as a result, she had to purchase a new ticket for him to return to Toronto. Therefore, the Agency finds that in light of the receipts provided by Mr. Mahida and in the absence of an answer to her application from Jet Airways, the amount of compensation sought by Ms. Mahida is reasonable.

ORDER

  1. The Agency orders Jet Airways, pursuant to paragraph 113.1(a) of the ATR, to amend Tariff Rule 25(IV)(1) to include a statement that unaccompanied minors will not be accepted for code-share transportation, and to file with the Agency the revised Tariff Rule, as soon as possible and no later than December 22, 2017.
  2. The Agency orders Jet Airways pursuant to paragraph 113.1(b) of the ATR, to pay Ms. Mahida the amount of $1,520.05, for the expenses that she incurred to transport her unaccompanied son back to Toronto. This amount is to be paid as soon as possible and no later than December 22, 2017 and Jet Airways is to advise the Agency once compensation has been tendered.

Member(s)

William G. McMurray
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