Decision No. 244-C-A-2014

This Decision has been varied by 370-C-A-2014">Decision No. 370-C-A-2014.

June 26, 2014

COMPLAINT by Onencan Cankech against Brussels Airlines N.V./ S.A. carrying on business as Brussels Airlines.

File No.: 
M4120-3/14-00424

INTRODUCTION

[1] Onencan Cankech filed a complaint with the Canadian Transportation Agency (Agency) against Brussels Airlines N.V./S.A. carrying on business as Brussels Airlines (Brussels Airlines) concerning the loss of checked baggage while travelling on July 5, 2011 from Brussels, Belgium to Entebbe, Uganda. The itinerary of the trip was Toronto, Ontario, Canada to Entebbe, Uganda via Montréal, Quebec, Canada; Brussels; and Kigali, Rwanda. The ticketing carrier was Brussels Airlines but on the Toronto-Montréal-Brussels segment, Mr. Cankech travelled with Air Canada. On the Brussels-Kigali-Entebbe segment, he travelled with Brussels Airlines.

[2] Mr. Cankech seeks compensation in the amount of CAD$2,120 for the contents of his lost baggage. This includes: laptops (CAD$1,500), dresses (CAD$40), 200,000 Ugandan Shillings (CAD$80), a bottle of whisky (CAD$50), a BlackBerry (CAD$200) and CAD$250 for the fee he incurred to cancel a US$35,000 money order. Brussels Airlines offered him, as compensation, an amount of CAD$20.

ISSUES

  1. Did Brussels Airlines fail to apply the provisions set out in Rule 55 of its International Passenger Rules and Fares Tariff No. NTA(A) No. 210 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), by not compensating Mr. Cankech in accordance with Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If so, what compensation is due to Mr. Cankech?
  2. Is Brussels Airlines’ Tariff Rule 55(C)(7) inconsistent with Article 17(2) of the Montreal Convention, and therefore unreasonable within the meaning of subsection 111(1) of the ATR?

RELEVANT STATUTORY EXTRACTS

[3] The provisions of the Montreal Convention and the regulatory provisions relevant to this matter are set out in the Appendix.

PRELIMINARY MATTER

[4] In its answer to the complaint, Brussels Airlines submits that the complaint is time-barred. Brussels Airlines refers to Article 35 of the Montreal Convention, which provides that an action of a claimant respecting the liability for the loss of checked baggage must be brought before a court within two years from the date of arrival at the destination, failing which, the right to damages will be extinguished. Brussels Airlines also refers to Article 33 of the Montreal Convention which stipulates that the action must be brought before one of the courts mentioned in that Article. Brussels Airlines argues that the Agency is not a court and, in any case, is not one provided for in Article 33. As such, Brussels Airlines contends that the claim by Mr. Cankech is extinguished as of July 2013 and cannot be considered as an action in the sense of Article 33 of the Montreal Convention.

[5] In Canada, the Montreal Convention is incorporated into law by the Carriage by Air Act, R.S.C., 1985, c. C-26.

[6] The Agency is the Canadian aeronautical authority responsible for the economic regulation of air carriers. Among its responsibilities, it must follow up on consumer complaints by ensuring that the provisions of the Canada Transportation Act, S.C. 1996, c. 10, as amended (CTA), which is the act that applies in respect of transportation matters under the legislative authority of Parliament, as well as those of its attendant regulations, including the ATR, are complied with by air carriers. The Agency must also ensure that air carriers abide by the terms and conditions of their respective tariffs.

[7] Section 25 of the CTA provides that:

The Agency has, with respect to all matters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court.

[8] In Decision Nos. 434-C-A-2007 (Thakkar v. Aeroflot - Russian Airlines) and 341-C-A-2008 (Bhatt v. Aeroflot - Russian Airlines), the Agency determined that the term “action” found in Article 35 of the Montreal Convention is broad enough to include a proceeding before the Agency. In these Decisions, the Agency found that the complaints filed constituted actions as contemplated by Article 35 of the Montreal Convention, and that the complaints were filed within the two-year limit.

[9] The Agency is of the opinion that the principles established in Decision Nos. 434-C-A-2007 and 341-C-A-2008 apply to this case, and that the complaint filed by Mr. Cankech constitutes an action as contemplated by Article 35 of the Montreal Convention. The Agency notes that Mr. Cankech filed his complaint with the Agency on June 23, 2013 and that he arrived at his destination on July 5, 2011. Therefore, Mr. Cankech’s claim was filed within the two-year time limit prescribed by Article 35 of the Montreal Convention. Consequently, the Agency determines that Mr. Cankech’s right to compensation has not been extinguished.

ISSUE 1: DID BRUSSELS AIRLINES FAIL TO APPLY THE PROVISIONS SET OUT IN RULE 55 OF ITS TARIFF, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION, BY NOT COMPENSATING MR. CANKECH IN ACCORDANCE WITH ARTICLE 17(2) OF THE MONTREAL CONVENTION, THEREBY CONTRAVENING SUBSECTION 110(4) OF THE ATR? IF SO, WHAT COMPENSATION IS DUE TO MR. CANKECH?

Positions of the parties

Mr. Cankech

[10] Mr. Cankech submits that before departure, both carriers - Air Canada and Brussels Airlines - assured him that he was allowed two carry-on bags. On July 4, 2011, he boarded Flight No. SN9554 (Toronto-Montréal) with two carry‑on bags and then Flight No. SN9552 (Montréal‑Brussels), both operated by Air Canada. Prior to boarding Flight No. SN465 (Brussels-Kigali-Entebbe) operated by Brussels Airlines, he was advised that he could only have one carry-on bag. He states that he therefore checked one of his bags, but was assured by Brussels Airlines that he would be able to retrieve it in Entebbe.

[11] Mr. Cankech submits that upon arrival in Entebbe, he realized that the bag he checked was missing. He reported the lost bag and filed the necessary documentation with Brussels Airlines. He asserts that he then went to Brussels Airlines’ office in Kampala, Uganda and made several inquiries prior to being notified by the carrier that his bag was considered lost. He indicates that Brussels Airlines offered CAD$20 as a final settlement, which he rejected.

Brussels Airlines

[12] Brussels Airlines submits that with the exception of the dresses, the contents of Mr. Cankech’s bag, which was considered lost, were not authorized under Brussels Airlines’ terms and conditions to which the electronic ticket expressly refers. Brussels Airlines adds that the ticket also mentions that passengers are requested not to include food, money, personal electronic devices (such as portable computers or mobile phones) in checked baggage, and states: “If, despite being prohibited, any such items are included in your baggage, we shall not be responsible for any loss or damage of […] such items.” Brussels Airlines therefore asserts that with the exception of the dresses, Mr. Cankech’s case is not grounded.

ANALYSIS AND FINDINGS

Liability

[13] Brussels Airlines argues that it is exempt from liability in that many of the items contained in Mr. Cankech’s lost baggage were not authorized as per Brussels Airlines’ terms and conditions.

[14] Rule 117(D) of Brussels Airlines’ Tariff provides, in part:

Passengers must not include in checked baggage items […] which items by their particular nature (fragile, perishable, valuable) the carrier does not agree to carry. If the weight, size or character of the baggage renders it unsuitable for carriage on the aircraft, carrier may, prior to, or at any stage of the journey, refuse to carry the baggage or any portion thereof.

[15] Rule 55(C)(7) provides:

Carrier is not liable for loss, damage to, or delay in the delivery of fragile or perishable articles, money, jewelry, silverware, negotiable papers, securities, or other valuables, business documents, or samples that are included in the passenger’s checked baggage, with or without the knowledge of the carrier.

[16] Rule 55(C)(3) provides, in part, that “[a]ll claims are subject to proof of loss.”

[17] Rule 55(B)(1)(j) provides, in part, that “[f]or the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.”

[18] In Decision No. 227-C-A-2008 (McCabe v. Air Canada) the Agency stated:

…The Agency acknowledges that a carrier has the right to refuse to carry certain items as checked baggage. However, paragraph 17(2) of the Convention provides that a carrier is liable for loss or damage if the event which caused the loss or damage took place on board an aircraft or during any period within which the checked baggage was in the charge of the carrier. The carrier can avoid liability only if the damage resulted from an inherent quality or defect of the baggage.

The Agency therefore is of the opinion that if a carrier accepts checked baggage for transportation and the checked baggage is under the care and control of the carrier, the carrier assumes liability for the baggage in the event of loss and damage, notwithstanding the carrier has not agreed to carry items and the items are contained in checked baggage with or without the carrier’s knowledge.

[19] The Agency is of the opinion that the principles established in Decision No. 227-C-A-2008 are applicable to this case. Article 17(2) of the Montreal Convention provides that a carrier is liable for loss or damage if the event which caused the loss or damage took place on board an aircraft or during any period within which the checked baggage was in the charge of the carrier. In this regard, in Decision No. 227-C-A-2008, the Agency determined that if a carrier accepts checked baggage for transportation and the checked baggage is under the care and control of the carrier, the carrier assumes liability for the baggage in the event of loss and damage, irrespective of whether the carrier disclaims liability for certain items. This determination was also made in Decision No. 99-C-A-2011 (Kouznetchik v. American Airlines).

[20] Essentially, if a carrier accepts checked baggage for transportation and has “care and control”, then it must assume liability for baggage in the event of loss and damage, notwithstanding that the carrier has not agreed to carry items and the items are contained in checked baggage with or without the carrier’s knowledge.

[21] The Agency is of the opinion that, in the present case, Mr. Cankech’s missing bag was in the “care and control” of Brussels Airlines, and that, therefore, it is liable under Article 17(2) of the Montreal Convention for the loss of that bag.

[22] Consequently, the Agency finds that, by offering CAD$20 as compensation for the loss of Mr. Cankech’s baggage, Brussels Airlines failed to properly apply the terms and conditions of carriage relating to the limits of liability as set out in Rule 55(B)(1)(j) of its Tariff, which incorporates the Montreal Convention by reference, and therefore contravened subsection 110(4) of the ATR.

Value of lost items

[23] Mr. Cankech has not provided receipts to substantiate his loss. Brussels Airlines does not challenge the value of the loss claimed by Mr. Cankech. In Decision No. 308‑C‑A‑2010 (MacGillivray v. Cubana), the Agency found it unreasonable to require forms of proof, such as receipts, as they may no longer be in an applicant’s possession. According to that Decision, other methods such as a sworn affidavit, a declaration or the inherent reasonableness of the expenses claimed could, in some cases, assist in determining the validity of a claim. Furthermore, Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase. The Agency finds the value of the loss as stated in Mr. Cankech’s complaint to be acceptable in the present circumstances.

[24] The Agency notes that the amount claimed by Mr. Cankech totals CAD$2,120 but that Article 22(2) of the Montreal Convention limits the carrier’s liability, in case of destruction, loss of, damage to or delay of baggage, to an amount of 1,131 Special Drawing Rights (SDR).

[25] On June 26, 2014, the available information from the International Monetary Fund converted SDR to Canadian dollars (CAD$) using a rate of SDR1 = CAD$1.65366. Utilizing that rate, the Agency has determined that compensation in the amount of CAD$1870.29 is to be paid to Mr. Cankech by Brussels Airlines.

ORDER

[26] Pursuant to section 113.1 of the ATR, the Agency orders Brussels Airlines to compensate Mr. Cankech, by July 26, 2014, an amount of CAD$1870.29 and to advise the Agency once compensation has been tendered to Mr. Cankech.

ISSUE 2: IS BRUSSELS AIRLINES’ TARIFF RULE 55(C)(7) INCONSISTENT WITH ARTICLE 17(2) OF THE MONTREAL CONVENTION, AND THEREFORE UNREASONABLE WITH THE MEANING OF SUBSECTION 111(1) OF THE ATR?

[27] As noted above, Rule 55(C)(7) of Brussels Airlines’ Tariff disclaims liability for the loss, damage to or delay in delivery of certain items. As also noted, Article 17(2) of the Montreal Convention provides that a carrier is liable for loss or damage to checked baggage if the event which caused the loss or damage took place on board an aircraft or during any period within which the checked baggage was in the charge of the carrier. The Agency finds, on a preliminary basis, that Tariff Rule 55(C)(7) is inconsistent with Article 17(2) of the Montreal Convention, and therefore is unreasonable within the meaning of subsection 111(1) of the ATR.

DIRECTION TO SHOW CAUSE

[28] The Agency provides Brussels Airlines with the opportunity to show cause by July 11, 2014 why the Agency should not disallow Tariff Rule 55(C)(7) on the grounds that it is inconsistent with Article 17(2) of the Montreal Convention and is therefore unreasonable within the meaning of subsection 111(1) of the ATR.


APPENDIX

Relevant Statutory Extracts

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.

111(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

Convention for the Unification of Certain Rules for International Carriage by Air ‑ Montreal Convention

Article 17

[...]

2. 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. [...]

Article 22

[...]

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.

Article 33

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

Article 35

1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

2. The method of calculating that period shall be determined by the law of the court seized of the case.

Member(s)

Sam Barone
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