Decision No. 104-C-A-2017

November 21, 2017

APPLICATION by Vladimir Savchenko against Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines) [Lufthansa].

Case number: 
17-03123

SUMMARY

[1] Vladimir Savchenko 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 the modifications Lufthansa made to his itinerary which resulted in him missing a business meeting in Zurich on November 30, 2016.

[2] Mr. Savchenko is seeking compensation in the amount of CAN$1,700; an amount he alleges represents the price of an airline ticket to fly from Vancouver, British Columbia, Canada to Zurich, Switzerland.

[3] The issue before the Agency is whether Lufthansa properly applied the terms and conditions set out in Rules 80 and 85 of its International Passenger Rules and Fares Tariff, NTA(A) No. 312 (Tariff), as required by subsection 110(4) of the ATR.

[4] For the reasons set out below, the Agency finds that Lufthansa properly applied the terms and conditions set out in Rules 80 and 85 of its Tariff. Therefore, the Agency dismisses Mr. Savchenko’s application.

BACKGROUND

[5] Mr. Savchenko was originally scheduled to travel from Vancouver to Moscow, Russia, via Frankfurt, Germany and Zurich on November 29 and 30, 2016.

[6] Faced with a labour dispute involving Lufthansa’s pilots (i.e. pilot strike) in Germany, on November 29 and 30, 2016, Lufthansa modified Mr. Savchenko’s flight itinerary such that he would travel from Vancouver to Moscow, via London, England with Air Canada and British Airways.

THE LAW

[7] 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.

[8] 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.

[9] Tariff Rule 65(B)(1) outlines Lufthansa’s obligations when it issues a ticket, and states the following:

1. When validated, the ticket is good for carriage from the airport at the place of departure to the airport at the place of destination, via the route shown therein […]

[…]

[10] Tariff Rule 80(B) outlines Lufthansa’s responsibilities if it involuntarily revises a passenger routing and states the following:

In the event carrier cancels a flight […] is unable to provide previously confirmed space […] carrier will either:

[…]

2. Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or

3. Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation; […]

[…]

[11] Tariff Rule 85(B) provides the conditions under which Lufthansa can cancel a flight, and states the following:

[…]

2. Carrier may, without notice cancel, terminate, divert, postpone or delay any flight […] if it would be advisable to do so:

a. because of any fact beyond its control (including, but without limitation, meteorological conditions, acts of God, force m[a]jeure,  strikes, […]

POSITIONS OF THE PARTIES AND FINDING OF FACT

Mr. Savchenko’s position

[12] Mr. Savchenko states that he intentionally booked a multi-destination travel itinerary with his first destination being Zurich and his second, Moscow. He submits that he was travelling to Zurich on November 30, 2016 to attend a business meeting and was then continuing on to Moscow later that evening.

[13] Mr. Savchenko states that less than 24 hours before his departure, he received an e-mail from Lufthansa informing him that they had modified his travel itinerary such that he would travel to Moscow via London (as opposed to via Frankfurt and Zurich). Mr. Savchenko argues that these changes were made without any prior communication or consent from him, and that Lufthansa mistakenly determined his final destination was Moscow.

[14] Mr. Savchenko submits that he tried contacting Lufthansa to reschedule his flight to Zurich, but the carrier’s telephone lines were busy, and his e-mail messages were not being answered.

[15] Mr. Savchenko argues that Lufthansa could have rebooked his flight to Zurich with their other partner carriers instead of rerouting him through London.

[16] Mr. Savchenko claims that according to “air carrier rules”, in case of a strike, a passenger must be given an option to be transported to a destination within the same day of the original booking. In case of a multiple destination itinerary, a passenger must be given an option to be transported to the first destination within the same day of the original booking.

Lufthansa’s position

[17] Lufthansa states that due to the number of passengers impacted by the pilots’ strike, tickets were automatically rerouted to a passenger’s final destination. Lufthansa argues that Mr. Savchenko’s final destination was Moscow, not Zurich.

[18] Lufthansa states that it used alternate airlines to rebook Mr. Savchenko to ensure that he could reach his final destination of Moscow.

[19] Lufthansa submits that Article 8 of the European Regulations 261/2004 provides that in the event of a flight cancellation, passengers have the right to a refund of the full ticket if it is unused, or rerouting to their final destination.

[20] With respect to Lufthansa’s phone lines being busy, Lufthansa argues that had Mr. Savchenko wished, he could have changed his reservation when he checked in for his flight at the Vancouver airport; however, Lufthansa notes that no such request was made, and Mr. Savchenko accepted and travelled on the new itinerary booked.

[21] Lufthansa states that international transportation is governed by its Tariff on file with the Agency, Article 19 of the Montreal Convention, and paragraph 14 of the Regulation (EC) No. 261/2004, all of which it alleges it respected.

[22] Lufthansa disagrees with Mr. Savchenko’s claim that he is owed a ticket for a flight from Vancouver to Zurich, or any type of refund.

Finding of fact

[23] It is undisputed by the parties that Mr. Savchenko’s original itinerary was modified by Lufthansa in response to a Lufthansa pilot strike in Germany on November 29 and 30, 2016. The only issue is whether Lufthansa was entitled to do so.

ANALYSIS AND DETERMINATIONS

[24] Lufthansa’s Tariff Rule 80 provides that if one of its flights is cancelled, passengers will either be provided a refund or rerouted to the original destination named on their ticket; and Rule 85 enables Lufthansa to cancel a flight without notice in the event of a strike.

[25] Mr. Savchenko argues that he had two destinations on his original itinerary: Zurich and Moscow. The Agency notes that Lufthansa’s Tariff Rule 65(B) states that a ticket is good for carriage from the airport at the place of departure to the airport at the place of destination, and that Lufthansa’s Tariff Rule 1 defines destination as the ultimate destination of the passenger’s journey as shown on the ticket. The Merriam-Webster Dictionary defines the word “ultimate” as meaning final. The itinerary gives no indication that Zurich was anything other than a connection point as Mr. Savchenko was arriving and departing on the same day, nor is there any evidence that Lufthansa was even aware that Mr. Savchenko considered Zurich to be one of two destinations. Therefore, the Agency finds that Moscow was Mr. Savchenko’s ticketed destination.

[26] 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.

[27] Lufthansa’s Tariff Rules 80 and 85 enable Lufthansa to cancel and reroute a passenger to their original ticketed destination in the event of a strike. The Agency finds that Lufthansa respected its Tariff in rerouting Mr. Savchenko to Moscow, as Moscow was his ticketed destination.

[28] Accordingly, the Agency finds that Mr. Savchenko has not discharged his burden to demonstrate that Lufthansa contravened subsection 110(4) of the ATR.

CONCLUSION

[29] The Agency dismisses the application.

Member(s)

Sam Barone
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