Decision No. 168-C-A-2008

April 9, 2008

April 9, 2008

IN THE MATTER OF a complaint filed by Abdelkrim Qbibi against Royal Air Maroc regarding the loss of items contained in his checked baggage.

File No. M4120-3/07-06564


INTRODUCTION AND ISSUE

[1] Abdelkrim Qbibi filed a complaint against Royal Air Maroc (RAM) concerning the loss of certain items contained in his checked baggage on board Flight No. AT207 from Casablanca, Morocco, to Montréal, Quebec, Canada, on November 8, 2005. The flight in question was a return flight originating from Montréal.

[2] The Canadian Transportation Agency (the Agency) must determine whether RAM applied the terms and conditions of carriage set out in its international passenger tariff NTA(A) No. 324 (the Tariff) respecting limits of liability for checked baggage, in accordance with subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (the ATR).

[3] For the reasons stated below, the Agency finds that in refusing to compensate Mr. Qbibi, RAM failed to apply its condition of carriage in respect of limits of liability for checked baggage stated in its Tariff and the Montreal Convention.

FACTS

[4] Mr. Qbibi indicates that upon arrival in Montréal, on November 8, 2005, he noticed that his checked baggage had been damaged and when he checked inside, he discovered that certain items, namely a camcorder, a kaftan type of robe, a camera, a belt, scarves and pyjamas were missing. He submits that he advised an airport agent, who in turn gave him an incident report to fill out and told him to communicate with RAM for compensation.

[5] Mr. Qbibi states that on November 13, 2005, he sent RAM, by facsimile, to the number indicated on the incident report, a request to be compensated for his damaged baggage and missing items in the amount of CAD$3,185.

[6] RAM maintains that Mr. Qbibi did not file his claim within the seven (7) days prescribed in the Montreal Convention, as RAM only received it on November 16, 2005.

[7] In addition, RAM contests the value claimed by Mr. Qbibi, especially for the kaftan. According to RAM, the price of the article of clothing in question can be explained by the cost of material used and the salary of the maker, and, as Morroco is a country where the average income per capita is very low, RAM maintains that the kaftan's value cannot be what is claimed by Mr. Qbibi. As for the other missing items, particularly the camcorder and camera, RAM maintains that the value of a good depreciates, based on several factors such as age, use, obsolescence and wear and tear.

[8] RAM paid to have Mr. Qbibi's luggage repaired and offered him, in good faith, compensation of CAD$150, which Mr. Qbibi refused.

[9] The evidence filed by Mr. Qbibi with the Agency contains, among other things:

  • a copy of the incident report issued by the airport agent, which indicates RAM's contact information;
  • a copy of the facsimile confirmation report, dated November 13, 2005, of a compensation request from Mr. Qbibi to RAM;
  • the original purchase receipts for the camcorder, the camera and the kaftan; and
  • a sworn statement of the price Mr. Qbibi paid for the kaftan.

ANALYSIS AND FINDINGS

[10] The Agency, by a previous panel, has already determined in another decision that in cases where travel originates from Canada and provides for the return to the original point, the Montreal Convention, as it is embedded in the Carriage by Air Act, R.S.C., 1985, c. C-26, applies. Consequently, the Agency determines that the Montreal Convention also applies to this case.

[11] With respect to the filing of a claim in case of loss, the Montreal Convention states that the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven (7) days from the date of receipt in the case of checked baggage. The Agency finds that, on November 13, 2005, Mr. Qbibi sent a compensation request, by facsimile, to the number appearing under RAM's name on the incident report, i.e., five (5) days after the date of the incident. In this regard, the Agency considers that Mr. Qbibi filed his compensation request within the prescribed deadline.

[12] As for the value of the missing items, the Montreal Convention limits the liability of the carrier to a maximum of 1,000 special drawing rights (SDR). The Agency has considered the evidence on file, including the original receipts and the sworn statement confirming the amount paid for the kaftan, and finds that the value of the lost items is at least equivalent to 1,000 SDR. The Agency rejects RAM's depreciation argument as the Agency finds that the replacement value must be taken into account, not the decreased value.

[13] The Agency therefore finds that Mr. Qbibi's request for compensation is justified and reasonable.

COMPENSATION

[14] The Agency notes that the amount claimed by Mr. Qbibi totals CAD$3,185, but that the Montreal Convention limits the carrier's liability, in case of destruction, loss of, damage to or delay of baggage to an amount of 1,000 SDR.

[15] On April 8, 2008, the available information from the International Monetary Fund converted SDR to Canadian dollars (CAD$) using a rate of SDR 1 = CAD$1.65614. Utilizing that rate, the Agency determined that compensation in the amount of CAD$1,656.14 is to be paid by RAM.

CONCLUSION

[16] Pursuant to section 113.1 of the ATR, the Agency directs RAM to reimburse Mr. Qbibi, within thirty (30) days of this Decision, an amount of CAD$1,656.14 and to advise the Agency once compensation has been provided to M. Qbibi.

Members

  • J. Mark MacKeigan
  • John Scott
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