Decision No. 28-C-A-2018

April 3, 2018

APPLICATION by Goran Stakic against Jet Airways (India) Limited (Jet Airways).

Case number: 
17-06020

SUMMARY

[1] Goran Stakic filed an application with the Canadian Transportation Agency (Agency) against Jet Airways regarding the loss of his checked baggage while travelling from Butmir, Bosnia and Herzegovina to Amsterdam, Netherlands, via Zagreb, Croatia with Croatia Airlines d.d. carrying on business as Croatia Airlines (Croatia Airlines), and from Amsterdam to Toronto, Ontario, Canada with Jet Airways on August 22, 2017.

[2] Mr. Stakic is seeking reimbursement in the amount of CAN$3,207.30 as per the following: CAN$1,900 for the contents of his lost baggage and the cost of his baggage, and CAN$1,307.30 for the cost of purchasing replacement items while he was without his baggage.

[3] The Agency will address the following issue:

Did Jet Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (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. Stakic as required by Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Jet Airways did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Stakic?

[4] For the reasons set out below, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rule 55(C)(18) of its Tariff, and orders Jet Airways to compensate Mr. Stakic in the amount of CAN$1,900. Jet Airways is to pay this amount to Mr. Stakic as soon as possible and no later than May 15, 2018.

BACKGROUND

[5] On August 22, 2017, Mr. Stakic travelled on an interline itinerary from Butmir to Amsterdam, via Zagreb, with Croatia Airlines, and from Amsterdam to Toronto with Jet Airways. Upon arrival at the Toronto Pearson International Airport (Toronto airport), Mr. Stakic was unable to locate his checked baggage, and he filed a Property Irregularity Report with Jet Airways.

[6] Mr. Stakic contacted Jet Airways through e-mail numerous times hoping to get an update regarding his lost baggage; however, Jet Airways was still trying to locate the missing baggage and did not have an update for Mr. Stakic.

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)(18) of Jet Airways’ Tariff incorporates the Montreal Convention and states:

For 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.

[10] Rule 55(D)(1) of Jet Airways’ Tariff states:

[…] in the case of delay, or loss, complaint must be made at the latest within 21 days from the date on which the baggage has been placed at his disposal (in the case of delay), or should have been placed at his disposal (in the case of loss). Every complaint must be made in writing and dispatched within the time aforesaid. […]

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

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.

[12] Article 22(2) of the Montreal Convention sets out the carrier’s limits of liability in relation to loss, delay, destruction, or damage to baggage and cargo and states:

In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,131 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.

[13] Article 36(3) of the Montreal Convention sets out liability during successive carriage in relation to loss, delay, destruction, or damage to baggage and cargo and states:

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or cosignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or cosignee.

POSITIONS OF THE PARTIES

Mr. Stakic’s position

[14] Mr. Stakic submits that upon arrival at the Toronto airport on August 22, 2017, he was unable to locate one of his checked baggage and immediately informed Jet Airways. Mr. Stakic indicates that he then filed a Property Irregularity Report with Jet Airways.

[15] Mr. Stakic states that besides the hygiene products, most of the clothing and shoes in the lost baggage were required for work, which he started on August 23, 2017, and therefore he had to purchase replacement items. Mr. Stakic also states that he was required to purchase a new piece of baggage as he was travelling again on September 10, 2017.

[16] Mr. Stakic submitted a detailed list, including estimated costs of the missing items from his lost baggage, along with the estimated cost of the lost baggage, which total CAN$1,900. In addition, Mr. Stakic submitted all of his receipts for the replacement items that he purchased while he was without his baggage, which total CAN$1,307.30.

Jet Airways’ position

[17] Jet Airways states that it provided the claim form to Mr. Stakic and explained that he needed to fill out the form corresponding to the receipts that he was submitting.

[18] Jet Airways submits that on December 26, 2017, it received an e-mail from Mr. Stakic but it did not contain a completed claim form or any receipts and that, later that day, it received another e‑mail from Mr. Stakic with a Costco receipt attached. Jet Airways claims that it sent Mr. Stakic an e-mail requesting him to re-send the other receipts along with the claim form so that it could calculate the final amount of compensation.

Mr. Stakic’s reply

[19] Mr. Stakic states that in his e-mail exchanges with Jet Airways, he referred to the Montreal Convention and provided to Jet Airways the total amount of compensation that he is seeking, which is well within the governed limits.

[20] Mr. Stakic also states that he submitted the receipts and the claim form multiple times to Jet Airways, and he also submitted the same receipts to the Agency.

[21] Mr. Stakic argues that Jet Airways has not made a significant attempt to mitigate the loss and has only prolonged the matter. Mr. Stakic submits that Jet Airways has not refuted the fact that his baggage was lost or that the items that he listed as lost were in the baggage.

Findings of fact

[22] It is undisputed, and the Agency finds, that Mr. Stakic was travelling on an interline itinerary with Croatia Airlines and Jet Airways, and that one of his two pieces of baggage was lost en route to Toronto.

[23] The Agency finds that Mr. Stakic filed a Property Irregularity Report with Jet Airways when he arrived in Toronto on August 22, 2017, which is within the 21 days from the date on which the baggage should have been placed at his disposal, as required by the Montreal Convention.

[24] The Agency further finds that Mr. Static tried to resolve the issue with Jet Airways prior to filing an application with the Agency, and that Jet Airways has not compensated him for either the cost of the replacement items purchased while his baggage was delayed or the cost of the baggage and items within it that were lost.

[25] Mr. Stakic provided all of the receipts for the replacement items that he was required to purchase while he was without his baggage, along with the estimated cost of the items that were in his lost baggage to Jet Airways.

ANALYSIS AND DETERMINATIONS

[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 set out in its tariff.

[27] Rule 55(C)(5) of Jet Airways’ Tariff incorporates by reference the liability rules set out in the Montreal Convention, which governs a carrier’s liability for lost and damaged baggage if the event that caused the 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.

[28] Given that Mr. Stakic was travelling on an interline ticket and that his baggage was under the care and control of Croatia Airlines and Jet Airways when it was lost, and pursuant to Article 36(3) of the Montreal Convention, Mr. Stakic has the right to take action against either the first or the last carrier of his baggage. As Mr. Stakic took action against Jet Airways by filing a Property Irregularity Report upon arrival in Toronto on August 22, 2017, which is within the 21-day limit outlined in the Montreal Convention, and given that he has also been trying to resolve the matter with Jet Airways since August 2017, the Agency finds that Jet Airways is liable under Article 17(2) of the Montreal Convention for the loss of Mr. Stakic’s baggage.

[29] Mr. Stakic is seeking CAN$1,900 for the contents of his lost baggage and the cost of his baggage, and CAN$1,307.30 for the cost of purchasing replacement items while he was without his baggage. The Agency notes that Mr. Stakic provided all of the receipts for the replacement items that he was required to purchase while he was without his baggage, along with the estimated costs of the lost items, including the lost baggage, to Jet Airways.

[30] Jet Airways does not dispute the estimated cost of the lost items or the estimated cost of the lost baggage being claimed by Mr. Stakic.

[31] The Agency notes that a party, in endeavouring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. While the production of original receipts of purchase will generally support proof of loss, circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate.

[32] Mr. Stakic filed a list of all the items that were lost in his baggage along with the estimated cost of each item.

[33] The Agency is satisfied that Mr. Stakic’s lost baggage contained clothing and toiletries which, along with the estimated cost of the lost baggage, amount to CAN$1,900. The Agency further finds that that amount is reasonable given the items that are identified as lost. With respect to Mr. Stakic’s claim for the cost of purchasing replacement items, totalling CAN$1,307.30, the Agency finds that as Jet Airways is liable for the value of the lost clothing and items in the lost baggage, there is no basis upon which to require Jet Airways to also pay for the cost of the replacement items that Mr. Stakic was required to purchase, as such an order would amount to double recovery.

[34] Based on the above, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rule 55(C)(18) of its Tariff, which incorporates by reference the Montreal Convention, by not compensating Mr. Stakic as required by Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the ATR.

ORDER

[35] Pursuant to section 113.1 of the ATR, the Agency orders Jet Airways to compensate Mr. Stakic in the amount of CAN$1,900. Jet Airways is to pay this amount to Mr. Stakic as soon as possible and not later than May 15, 2018.

Member(s)

William G. McMurray
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