Decision No. 341-C-A-2008
June 26, 2008
IN THE MATTER OF a complaint filed by Jatin Bhatt against Aeroflot - Russian Airlines.
File No. M4120-3/07-08951
ISSUE AND FINDINGS
 Jatin Bhatt filed a complaint with the Canadian Transportation Agency (the Agency) respecting Aeroflot - Russian Airlines' (Aeroflot) failure to provide adequate compensation for delayed, damaged and lost baggage.
 Did Aeroflot properly apply its tariff respecting its offer of compensation to Mr. Bhatt and his family for the delay, damage and loss of baggage?
 As indicated in the reasons that follow, the Agency finds that Aeroflot, in not offering adequate compensation to Mr. Bhatt for the delay, damage and loss of his family's baggage, failed to apply the liability provisions of the Montreal Convention, which has the force of law in Canada by virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26.
 Aeroflot submits that the formal complaint was initiated in excess of two years after the completion of travel and, therefore, Mr. Bhatt's claim was initiated outside of the time limit established under Article 29 of the Warsaw Convention and Article 35 of the Montreal Convention.
 On December 21, 2004, Mr. Bhatt, his wife and his son travelled from Toronto, Ontario, Canada to Mumbai, India and upon their arrival they discovered that their baggage had not arrived with them. On January 16, 2006, Mr. Bhatt filed a complaint with the Complaints Investigation Division of the Agency.
 With respect to what constitutes the commencement of a proceeding before the Agency, section 1 of the Canadian Transportation Agency General Rules, SOR/2005-35 defines, in part, the term "application" in the following manner:
"application" means an application, made to the Agency, that commences a proceeding under the Act, any Regulations made under the Act or any other Act of Parliament under which the Agency has authority, and includes a complaint [...].
 Article 35 of the Montreal Convention states, in part, that:
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.
 The term "action", as used in Article 35 of the Montreal Convention, is not defined in the Montreal Convention or anywhere in the Carriage by Air Act.
 Black's Law Dictionary (8th Edition, 2004) defines the term "action" as follows:
Action, in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined.
 Furthermore, section 12 of the Interpretation Act, R.S.C., 1985, c. I-21 states as follows:
Every enactment is deemed remedial, and shall be given such fair and liberal construction and interpretation as best ensures the attainment of its object.
 In light of the foregoing, the Agency is of the opinion that the term "action" found in Article 35 of the Montreal Convention is broad enough to include a proceeding before the Agency.
 Therefore, the Agency finds that the complaint filed by Mr. Bhatt with the Agency via the Complaints Investigation Division on January 16, 2006 constitutes an action as contemplated by Article 35 of the Montreal Convention, and that this application/complaint was filed within the two year limitation period.
FACTS, EVIDENCE AND SUBMISSIONS
 As noted above, Mr. Bhatt, his wife and son travelled from Toronto to Mumbai on December 21, 2004. Upon their arrival in India, they discovered that their checked baggage had not arrived.
 Mr. Bhatt states that on December 23, 2004, he completed a missing baggage claim form at the airport in Mumbai, and that Air India (representing Aeroflot) advised him that the family's baggage would be forwarded to Ahmedabad, India for retrieval, not to Baroda, India, the city to which the family was travelling.
 Mr. Bhatt adds that he eventually was advised that his family's baggage was available for pick-up in Mumbai. On December 31, 2004, he drove to that city to retrieve the baggage, at which point he discovered that one of their bags was damaged and that some of the contents from the damaged bag were missing. Mr. Bhatt submits that he filed a claim with Aeroflot's representative.
 In a sworn affidavit, Mr. Bhatt claims the amounts of: 76664 Indian Rupees (INR) (CAD$2072) for lost contents; INR27019.75 for expenses incurred because of the delay in delivery of baggage, such as for the purchase of clothing; CAD$150 for the replacement of the damaged bag; and CAD$12.18 for correspondence with Aeroflot. To support his claim, Mr. Bhatt submitted some receipts for his expenditures.
 Aeroflot states that, as per its tariff, its liability shall not exceed the actual loss suffered by the passenger and all claims are subject to proof of loss. Aeroflot contends that Mr. Bhatt's claim for expenses that were allegedly incurred because of the delay in delivery of his baggage is unacceptable. Aeroflot offered CAD$337.91 in compensation and states that such compensation reflects "the actual loss suffered by the passenger".
 Aeroflot asserts that Mr. Bhatt has failed to demonstrate that his actual losses were in excess of Aeroflot's offered compensation, and that Mr. Bhatt's claim is in excess of the liability limits set out in paragraph 22(2) of the Montreal Convention.
ANALYSIS AND FINDINGS
 In Decision No. 328-C-A-2007, relating to another claim against Aeroflot, the Agency determined that the provision of Rule 55(D)(7), appearing in Aeroflot's tariff, that states, in part, that "Any liability of carrier is limited to 250 French Gold Francs, USD 20.00, CAD 20.00, per kilogram in the case of checked baggage [...] or other property [...]" contravenes the Montreal Convention, and is therefore null and void.
 If read without the part of the tariff provision that was found to be null and void by the Agency in Decision No. 328-C-A-2007, Rule 55 (D)(7) of the tariff provides, in part, as follows:
In no case shall the carrier's liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.
 The Montreal Convention sets a limit of liability of 1000 Special Drawing Rights (SDR) per passenger for the loss, damage or delay of baggage, unless a higher value is declared by the passenger prior to travel. There is no evidence before the Agency that, in this case, such higher value was declared. As Mr. Bhatt is claiming for the three passengers in his party, the maximum allowable compensation would be 3000 SDR; that being CAD$4924.44.
 Given the supporting evidence filed by Mr. Bhatt, the Agency finds that the claim of CAD$2072 for lost clothing is reasonable. With respect to the claim of INR27019.75 for expenses incurred because of the delay in the delivery of the baggage, the Agency has reviewed the receipts and the evidence submitted by Mr. Bhatt and finds that the amount of INR 7740.75 (which represents the receipted expenses claimed by Mr. Bhatt, less the general telephone charges and excluding the unreceipted charges for transportation from Baroda to Mumbai) is justifiable as actual costs incurred by Mr. Bhatt.
 The Agency also finds that the amounts of CAD$150 for replacement of the damaged bag and CAD$12.18 for correspondence with Aeroflot are justified.
 The Agency concludes that Aeroflot has failed to apply the terms and conditions of carriage respecting baggage liability set out in the tariff, which is governed by the Carriage by Air Act, and has therefore contravened subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).
 Accordingly, the Agency orders Aeroflot to pay Mr. Bhatt, pursuant to paragraph 113.1(b) of the ATR, within thirty (30) days from the date of this Decision, the sum of CAD$2418.17 (which includes INR 7 740.25 (CAD$ 183.99) converted into CAD on the issuance of this Decision) and to advise the Agency when payment is made.
- J. Mark MacKeigan
- John Scott