Decision No. 15-C-A-2018

February 28, 2018

APPLICATION by Victor Kahn against Corsair carrying on business as Corsair International (Corsair).

Case number: 
17-05118

SUMMARY

[1] Victor Kahn filed an application with the Canadian Transportation Agency (Agency) against Corsair concerning its failure to compensate him for alleged damages to one of his checked baggage during a flight from Montréal, Quebec, Canada to Paris, France on June 21, 2017.

[2] Mr. Kahn is requesting compensation in the amount of CAN$195.45 for the cost of replacing his baggage.

[3] The Agency sent a copy of the application to Corsair by e-mail on November 10, 2017. Corsair did not file an answer to Mr. Kahn’s application.

[4] The Agency will address the following issue:

Did Corsair properly apply the terms and conditions set out in Rule 55 of its International Passenger Rules and Fares Tariff, NTA(A) No. 507 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Corsair did not properly apply the terms and conditions of its Tariff, what remedy, if any, is available to Mr. Kahn?

[5] For the reasons set out below, the Agency finds that Corsair did not properly apply the conditions set out in Rule 55 of its Tariff. Consequently, the Agency orders Corsair to reimburse Mr. Kahn the amount of CAN$195.45 for the cost of replacing his baggage. This amount must be paid as soon as possible, but no later than March 30, 2018.

BACKGROUND

[6] Mr. Kahn had checked the transport bag for his stroller and had identified it as fragile before placing it on the oversized baggage kiosk at the Montreal Airport. The bag was delivered to Paris with the standard baggage. Upon his arrival in Paris, Mr. Kahn noted damage to his stroller’s transport bag.

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] Rule 55(C) of Corsair’s Tariff states in part:

For travel governed by the Montreal Convention

For the purpose of International Carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporate[ed] herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

[10] Article 17(2) of the Montreal Convention sets out the carrier’s liability in case of destruction, loss of, or damage to checked baggage as follows:

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. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[11] Article 31(2) of the Montreal Convention states in part that:

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 checked baggage and fourteen days from the date of receipt in the case of cargo. [...]

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

[12] The day after arriving in Paris, on June 23, 2017, Mr. Kahn noticed that his stroller’s transport bag was damaged. He filled out a claim form on Corsair’s website and received a confirmation of receipt with a reference number.

[13] Mr. Kahn indicates that, at Corsair’s request, he submitted the requested documents, i.e. the purchase invoice for the transport bag and an attestation that the bag could not be repaired.

[14] Mr. Kahn submits that Corsair offered him a voucher of 50 Euros (valid for 1 year) or a reimbursement of 25 Euros on the grounds that he had not made a statement of claim at the airport.

[15] Mr. Kahn states that based on the conditions of Corsair’s Tariff and the Montreal Convention, he reported the damage to his bag to the carrier within the maximum timeframe of seven days after receiving his bag.

[16] Mr. Kahn referred to the conditions of Corsair’s Tariff and the Montreal Convention, according to which the carrier is responsible in cases of damage caused to one or more items of his checked baggage.

[17] Mr. Kahn requires compensation in the amount of CAN$195.45 for the value of his damaged transport bag as it cannot be repaired.

[18] Corsair did not file an answer to Mr. Kahn’s application.

Findings of fact

[19] As Corsair did not file an answer to the application, the facts and evidence presented by Mr. Kahn are not challenged. Based on the record before it, the Agency notes the following facts.

[20] The evidence filed with the Agency establishes that the damage to the stroller’s transport bag occurred during a period within which the checked baggage was in the care of the carrier.

[21] The Agency recognizes that, in support of his application, Mr. Kahn provided an attestation from the manufacturer and another piece of evidence from a specialized store confirming that the bag could not be repaired, as well as the original purchase invoice.

ANALYSIS AND DETERMINATIONS

[22] 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.

[23] In order to determine whether Corsair correctly applied the conditions stated in its Tariff, the Agency must first determine whether Mr. Kahn is entitled to compensation for his damaged transport bag pursuant to Rule 55 of Corsair’s Tariff.

[24] The Agency recognizes that, in support of his application, Mr. Kahn completed the online claim form within the prescribed timeframe, i.e. less than seven days, and received a confirmation from Corsair. The evidence filed with the Agency establishes that the damage to Mr. Kahn’s transport bag occurred during a period within which the checked baggage was in the care of the carrier. Under the circumstances, the Agency finds that Mr. Kahn is entitled to compensation for damage to his transport bag pursuant to Rule 55 of Corsair’s Tariff.

[25] As Corsair did not file an answer to the application, and in light of the evidence submitted by Mr. Kahn, the Agency finds that Mr. Kahn proved, on a balance of probabilities, that Corsair did not compensate him for the replacement of his stroller’s transport bag. As a result, the Agency finds that Corsair did not properly apply the terms and conditions set out in its Tariff, with respect to the liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

CONCLUSION

[26] The Agency orders Corsair, under subsection 113.1(b) of the ATR, to reimburse Mr. Kahn the amount of CAN$195.45. This amount must be paid as soon as possible, but no later than March 30, 2018.

Member(s)

William G. McMurray
Date modified: