Decision No. 426-C-A-2013

November 7, 2013

COMPLAINT by Marilyn Gibbins against Société Air France carrying on business as Air France respecting lost baggage.

File No.: 
M4120-3/13-00202

INTRODUCTION

[1] Marilyn Gibbins filed a complaint with the Canadian Transportation Agency (Agency) against Société Air France carrying on business as Air France (Air France) concerning the loss of her baggage while traveling between Canada and Europe.

ISSUES

  1. Did Air France fail to apply the provisions set out in its International Passenger Rules and Fares Tariff NTA(A) No. 313 (Tariff) relating to liability respecting baggage by refusing to compensate Ms. Gibbins, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If so, what compensation is due to Ms. Gibbins?
  2. Is Air France’s Tariff Rule 115(N)(1) inconsistent with paragraph 2 of Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), and therefore unreasonable within the meaning of subsection 111(1) of the ATR?
  3. Is Air France’s Tariff Rule 55(D)(5)(a)(i) inconsistent with paragraph 1 of Article 35 of the Montreal Convention, and therefore unreasonable within the meaning of subsection 111(1) of the ATR?

RELEVANT STATUTORY EXTRACTS

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

POSITIONS OF THE PARTIES

Ms. Gibbins

[3] Ms. Gibbins submits that her baggage did not arrive in Montréal after Air France Flight No. AF348, and that she waited in line for a “long time” at the airport to report the lost baggage. She advises that an Air France employee, Didier Vandeperre, confirmed to her that the baggage was placed on her flight from Paris, however, according to Ms. Gibbins, Mr. Vandeperre did not assist her or provide her with a claim form, and told her to search for the baggage herself. Ms. Gibbins states that she then went to use the washroom and to report her problem to Customer Assistance as she was desperate to locate her baggage. She maintains that “hours had passed” and that Air France personnel were still not assisting her.

[4] Ms. Gibbins states that, on the advice of Customer Service, she used a courtesy phone to contact Air France’s lost baggage department, and was placed on hold twice. According to Ms. Gibbins, when she spoke to Mr. Vandeperre at the lost baggage department, she indicated that she had been in the airport for hours trying to find her baggage. Ms. Gibbins submits that Mr. Vandeperre placed her on hold again, and after being on hold for approximately 30 minutes, the line was disconnected. She attempted to call again, but the line was always busy.

[5] Ms. Gibbins submits that upon returning home, she immediately contacted Air France’s main lost baggage office, which advised her that because she had called as soon as she had returned home (within 3 hours after leaving the airport), she would be reimbursed for the lost baggage and the contents.

[6] Ms. Gibbins maintains that Air France persists in denying her claim, even though it previously indicated to her that she would be reimbursed. She submits that Air France, while confirming that she had complained to the lost baggage department at the airport, will not satisfy her claim because of her failure to complete a claim form. Ms. Gibbins argues that the only reason the form was not filed was because Mr. Vandeperre refused to assist her or provide her with the necessary form.

[7] On or about June 29, 2012, Ms. Gibbins filed with Air France a written claim for compensation for her baggage, totalling $4,404.97.

Air France

[8] Air France acknowledges that:

  • Ms. Gibbins checked one piece of baggage, weighing 18 kg, for Flight No. AF348
  • on arrival in Montréal, she presented herself at the baggage desk (within the baggage area), claiming her baggage was missing and demanding that a Property Irregularity Report (PIR) be issued
  • Ms. Gibbins was informed that records confirmed that her baggage had been placed on Flight No. AF348 and had arrived, and that it was too early to open a PIR
  • Ms. Gibbins subsequently left the baggage area, called the baggage desk (from within the terminal building), claiming she had inadvertently left the room and could not return to complete a PIR in person, and requested that the agent take the information from her over the phone
  • the agent put her on hold, while he went to search the room for the alleged missing baggage
  • to date, Air France has been unsuccessful in locating Ms. Gibbins’ alleged missing baggage.

Time lines

[9] Air France submits that Ms. Gibbins insists that, besides the “extended” period of time she was waiting or looking for her baggage, she spent considerable time waiting in line at the baggage counter or while her call was on hold. Air France points out that, specifically, in her September 19, 2012 complaint to the Agency, Ms. Gibbins claims that she “had been in the airportfor hourstrying to find my luggage, (…) was desperate to find my bagand hours had passedand Air France lost luggage office/employee was still not assisting me, (…) was put on hold twice. (…) He put me on hold again [NOTE: this refers to the second time she claims to have been put on hold] refusing to help me andafter being on hold for approximately thirty minutesthe line was disconnected.”

[10] Air France submits that in a related complaint against Air France for the alleged lack of wheelchair assistance at the airport, Ms. Gibbins also claims that she “stood in line for at least 20 minutes the first time she went to the counter, […] had to wait in line AGAIN for over 20 minutes, (…) and waited on hold for at least half an hour”.

[11] Air France points out that in a FIDELIO message to Air France, dated August 27, 2012, Ms. Gibbins claims to have looked for her baggage and stood in line for “THREE HOURS.”

[12] Air France maintains that, at best, no more than 40 to 50 minutes passed from the moment Ms. Gibbins arrived at the baggage carousel and started to look for a cart to the time her call was disconnected and she presumably left the airport terminal. Air France submits that this includes both the time spent within the baggage room, and subsequently outside, in the general public area from where her call was made. Air France proposes the following scenario relating to this matter:

  1. Flight No. AF348 landed at 8:48 p.m., and arrived at the gate at 8:52 p.m.;
  2. It typically takes 15 to 20 minutes for passengers to deplane, and so, it is estimated that Ms. Gibbins began receiving assistance from the “meet and greet” agent some time around 9:10 p.m.;
  3. Taking into account the time it takes to go through immigration (entry formalities) and then proceed to the baggage area, Ms. Gibbins arrived at the baggage carousel between 9:20 p.m. and 9:25 p.m.;
  4. An announcement was made at around 9:30 p.m. for two passengers (whose baggage was known to have been delayed) to present themselves at the baggage desk, which prompted a number of passengers, including Ms. Gibbins, to go to the desk to enquire about their own baggage;
  5. Mr. Vandeperre, the agent who interacted with Ms. Gibbins at the baggage desk, ended his shift at 10:15 p.m.;
  6. Both Mr. Vandeperre and Minesh Patel, an employee of Manutention Swissport Canada Inc., who was nearby, recall that Ms. Gibbins called the desk and talked to Mr. Vandeperre 10 to 15 minutes before the end of his shift, thus putting the call at approximately 10:00 p.m.

[13] In support of its submission, Air France filed affidavits sworn by Mr. Vandeperre and Mr. Patel.

Events at the baggage desk

[14] Air France asserts that Ms. Gibbins presented herself on a single occasion at the Air France claims desk in the baggage room to complain that her baggage was missing. Air France submits that verifications made at the time showed that her baggage had been placed on board her flight, and had therefore arrived in Montréal (confirmed in affidavits filed by Rémi Couturier and Martine Heiler, respectively). Air France further submits that the baggage could still be seen on the carousel, and it was determined that an additional attempt at locating Ms. Gibbins’ baggage within the baggage room should be made. Air France submits that its priority was to put Ms. Gibbins in possession of her baggage, including any medical apparatus it may have contained, before she left the premises.

[15] Air France submits that it suggested to Ms. Gibbins that she have a second look at the Air France carousel, as well as check the oversize baggage carousel, before returning to the desk. Air France reports that Ms. Gibbins was unhappy with this suggestion because searching for her baggage meant that her departure from the airport would be delayed, while having the suitcase reported as missing meant that she could leave immediately and expect that her baggage would be delivered to her the next day by Air France. Air France maintains that Ms. Gibbins left the baggage room without reporting back to the desk.

Ms. Gibbins’ subsequent phone call to the baggage desk

[16] Air France submits that at approximately 10:00 p.m., Ms. Gibbins called Mr. Vandeperre from the general public area of the airport terminal, and that he did not understand why she had left the baggage area without first returning to the desk, as she had been asked to do. Air France points out that Ms. Gibbins told him that she had “inadvertently” left the area while looking for a restroom, and that she was not allowed back in, and that, therefore, there was no possibility left but to file a missing baggage report over the phone. Air France submits that Ms. Gibbins accused Mr. Vandeperre of having delayed her departure from the airport by not filing a missing baggage report when requested to do so, adding that she had a three-hour drive to reach her home.

[17] Air France indicates that Mr. Vandeperre was confident that Ms. Gibbins’ baggage had been left in the room, and did not want her to depart from the airport without her baggage, and therefore told her that he would personally look for her baggage. Air France adds that he put Ms. Gibbins’ call on hold, went to search the room for her baggage, was unable to find any leftover baggage, and promptly returned to resume his call with Ms. Gibbins, but found that the line had been disconnected. According to Air France, Mr. Vandeperre waited for Ms. Gibbins to call back, but she never did, and that there was no other phone call or other interaction between them.

[18] Air France submits that no baggage left over from Ms. Gibbins’ flight was found in the baggage area or in the adjoining room, where the baggage containers are broken down after they are retrieved from the aircraft cargo bay.

[19] Air France acknowledges that there may be many reasons why baggage is delayed or goes missing, including the failure to scan the corresponding baggage tag, showing that the baggage was not on the flight, or the leaving behind of an entire container. Air France maintains that neither situation applies to the present matter.

[20] Air France submits that the possibility that a mix-up may have occurred, whereby a passenger could have confused Ms. Gibbins’ baggage with his or her own, has been discarded. Air France notes that when a similar suitcase is found to have been left behind, the passenger who made the mistake quickly notifies Air France so that arrangements can be made to have the baggage delivered to its rightful owner. Air France claims that in this case, no such mix-up was reported, nor was any baggage left behind in the baggage area or elsewhere within the airport.

[21] Air France submits that while it is acknowledged that a carrier is generally liable for the loss of checked baggage that has occurred during air transport, the passenger bears the burden of proving that such loss (a) did occur, and (b) occurred at a time when the baggage was in the care and control of the carrier. Air France indicates that, usually, the passenger simply reports the loss of the checked baggage to the carrier, that the passenger’s good faith is always presumed, and that the declaration is accepted as being prima facie evidence of that loss. Air France submits that, in some cases, circumstances or a passenger’s behavior or statements may push the presumption aside, and that in all fairness, a carrier must be able to reasonably assure itself that a claim is valid before acting on it.

[22] Air France maintains that, in this case, all evidence points to Ms. Gibbins’ baggage being delivered to the carousel in the baggage room, and that Ms. Gibbins’ behavior and statements cast sufficient doubt on the claim that the baggage was lost while in the care and control of the carrier, that Air France can reasonably conclude that Ms. Gibbins has not discharged her burden of proof.

[23] Air France argues that a carrier does not have to prove beyond reasonable doubt that no loss occurred while the baggage was in its care and control. Rather, the carrier simply has to demonstrate that there exists enough evidence to show that the baggage may not have been lost, or that the passenger’s declaration may not be entirely credible, especially where, by the passenger’s own conduct, they have, without reasonable justification, made it difficult, if not impossible, to determine whether a loss may or may not have occurred prior to the baggage being delivered in the baggage area.

[24] Air France indicates that Rule 55(D)(5)(a)(i) of the Tariff provides that:

All missing baggage must imperatively be declared to the carrier as soon as the flight arrives. Any declarations made subsequently may not be taken into account.

[25] Air France submits that a carrier must be able to satisfy itself that a claim is legitimate and has the right to make timely verifications when presented with a claim for missing baggage.

[26] Air France asserts that, in choosing to leave the room, Ms. Gibbins made it impossible for Air France to investigate her claim that her baggage was not delivered to her.

Credibility

[27] Air France submits that there are certain issues with respect to credibility that are central to Ms. Gibbins’ baggage claim, and that impact negatively on that credibility.

a) Reasons for Leaving the Baggage Area

[28] According to Air France, Ms. Gibbins’ explanations for not returning to the baggage desk before leaving was that she needed to go to the washroom, and did not realize that she was leaving the baggage room and would not be allowed to return. Air France submits that there are easily accessible and clearly identified public washrooms in the baggage room, as evident in the photographs attached to Ms. Heiler’s affidavit, and that there is only one exit from the baggage area, which consists of a corridor in which passengers line up for customs formalities.

[29] Air France submits that several signs have been put up by the Canada Border Services Agency (CBSA) at the entrance of the corridor, reminding passengers to prepare themselves for customs formalities, and to check that they have all of their baggage, and that it is indeed their own baggage and not someone else’s. In this regard, photographs of the baggage area and exit to the general public area are attached to Ms. Heiler’s affidavit. Air France observes that in order to proceed to the general public area, passengers must hand over to a CBSA customs agent, a form in which they have listed the purchases that were made during their travel and the exemptions that are being claimed. In addition, passengers whose baggage has not arrived must also provide a completed Form A23, authorizing the carrier to open the delayed baggage after it arrives, for customs inspection, without the need for the passenger to be present at the time. Air France maintains that Ms. Gibbins did not have this form, which needs to be completed jointly by the carrier and the passenger (as confirmed by an e-mail dated May 28, 2013 by Marc Banville, Acting Chief of Operations at the Montréal airport for the CBSA, provided by Air France). Air France submits that it did not file Form A23 with respect to Ms. Gibbins’ baggage, either on June 12, 2012, or at any time thereafter.

[30] Air France submits that it is very difficult to imagine how any passenger, much less a seasoned one as Ms. Gibbins appears to be (Air France points out that she claims to travel several times a year), could go through customs, hand over to a CBSA agent at least the form declaring purchases, and then proceed into the public area without realizing what they were doing. Air France also submits that Ms. Gibbins has provided no explanation as to how she proceeded through customs and left the baggage area without presenting a completed Form A23.

b) Medical Apparatus

[31] Air France contends that the documents provided by Ms. Gibbins indicate that her medical apparatus were 17 months old and at the end of their useful life when they were allegedly lost by Air France.

[32] Air France submits that in October 2012, Ms. Gibbins was asked to submit a copy of her invoice for replacement medical apparatus, and that she immediately replied that she had not replaced those apparatus yet, providing the following explanation:

In addition, I have provided receipts for the medical appartuses (sic) lost in my luggage,but because I have limited income, have been forced to wait for a settlement from Air France to replace those items due to their high cost. In the meantime, I have tried to get by with old medical appartuses (sic) but am struggling and doing damage because of it. This will be held against Air France also.

[33] Air France further submits that despite her alleged limited income, Ms. Gibbins travels frequently.

[34] Air France indicates that in Decision No. LET-AT-A-65-2013, the Agency, in deciding not to include Ms. Gibbins’ complaint regarding her alleged missing apparatus within the context of her related accessibility application, stated that:

In the case at hand, Ms. Gibbins has not demonstrated that the medical apparatuses that she submits were in her luggage were required to access the federal transportation network. To the contrary, the apparatuses were contained in checked luggage, which would not have been available between check-in and arrival, indicating that the apparatuses were not required for Ms. Gibbins to access the federal transportation network.It is also worth noting that if any of these contents were required during her travel, the items should not have been checked with her baggage. Accordingly the Agency finds the medical apparatuses that Ms. Gibbins submits were lost with her luggage will be addressed as part of her lost luggage claim.

[35] Air France argues that it is difficult to reconcile Ms. Gibbins’ claims that the medical apparatus were essential to her daily activities, with:

  1. her eagerness to report her baggage as missing despite the fact she was told to wait, and that an agent would assist her in looking for that baggage, when she presented herself at the baggage desk;
  2. her eagerness to leave the airport and head home, despite the fact that Mr. Vandeperre told her that he would personally search the baggage area for her baggage;
  3. her claim that, while she has the good fortune to be able to travel several times a year, she cannot afford the $540 needed to purchase replacement medical apparatus.
c) Other Inconsistencies

[36] Air France submits that although Ms. Gibbins currently claims that she went to the desk twice, this is not what she originally reported in the Air France FIDELIO complaint reports she filed on June 13 (the day after the flight) and June 21, 2012, respectively. According to Air France, it was only after her claim had been denied in July 2012 that she began claiming that Air France had admitted to a second visit. Air France reiterates that Ms. Gibbins appeared at the desk only once before leaving the premises.

[37] In the alternative, Air France considers that is has fulfilled its obligation towards the passenger with respect to the delivery of checked baggage.

[38] Air France indicates that Rule 115(N)(1) of Air France’s Tariff provides that:

[…] Carrier is under no obligation to ascertain that the bearer of the baggage check and baggage (claim) tag is entitled to delivery of the baggage, and carrier is not liable for any loss, damage or expense arising out of or in connection with such delivery of the baggage.

[39] Air France submits that generally speaking, and at the Montréal airport in particular, air carriers deliver checked baggage to passengers by putting the baggage on a carousel in the baggage room, where it can be retrieved by their owner. Air France maintains that this is an industry standard, consistent with principles of the International Civil Aviation Organization, particularly those dealing with facilitation, aerodromes and related matters. Air France indicates that passengers know and expect that their baggage will be delivered in this manner.

[40] Air France asserts that it would be virtually impossible for Air France to request that passengers show their baggage receipt before being allowed to proceed to the customs area. Air France argues that if such a request were possible, it would put Air France at a serious and unjust competitive disadvantage unless all carriers were subject to a similar obligation. Air France submits that this would then shift the problem as the Montréal airport would be singled out as an airport to avoid because of the cumbersome exit procedure. Air France maintains that the passenger, and not the carrier, is in the best position to identify and retrieve their baggage from the carousel. Air France indicates that, at this point in time, the checked baggage is no longer in the care and control of the carrier, and if baggage is missing after being placed on the carousel, this is due to the actions of a third party, over which the carrier has no control and for which it will not accept liability. Air France concludes, therefore, that it fulfilled its obligation to deliver Ms. Gibbins’ checked baggage by making it available to her in the baggage room at the Montréal airport.

Ms. Gibbins

[41] Ms. Gibbins submits that Air France has admitted to the following facts in various submissions and affidavits to the Agency, and in the statements of employees and supervisors at the Central Lost Baggage Office made when she spoke to them several times during the past year:

  1. Air France lost her baggage;
  2. it could not find the baggage at the time she reported it lost at the airport or afterward;
  3. she reported the loss to Mr. Vandeperre at the lost baggage desk at the airport several times before leaving the airport;
  4. she reported the loss to Air France’s Central Lost Baggage Office as soon as she returned home and in the time frame required by Air France;
  5. Mr. Vandeperre should have provided a lost baggage report/form and failed to do so;
  6. Mr. Vandeperre should have provided her with a form to provide to customs, and failed to do so;
  7. Air France would reimburse her for the lost baggage and its contents and accordingly sent her forms to complete and return, which she did, and the forms were accepted.

[42] Ms. Gibbins argues that based on these admissions, the Agency must find that Air France lost her baggage, and that Air France is liable for reimbursing her for the baggage’s contents.

[43] Ms. Gibbins asserts that Air France’s credibility is in question given, among other behaviour, Air France’s:

  • contradictory statements in its submissions, such as why Mr. Vandeperre, the agent at the airport, stated that he could see that her baggage was placed on the aircraft in Paris, whereas the Central Lost Baggage Office insisted that it could tell from its computer system that the baggage was not put on the aircraft;
  • original delays in investigating the situation;
  • deliberate delays in resolving the situation once its lawyer became involved, even after informing her that it would reimburse her and sent her the claim forms;
  • refusal to follow its own protocol and tariff in dealing with the lost baggage, including providing the appropriate forms, searching for the lost baggage, assisting passengers when the lost baggage was reported, telephoning the passenger to answer questions about the lost baggage, etc.

[44] Ms. Gibbins maintains that she stood in line for a lengthy period of time to report that her baggage was not on the carousel, and that Mr. Vandeperre was unhelpful and hostile. She submits that he looked up the baggage tag number that she gave to him in the computer system, and said he could tell that her baggage had been on the flight from Paris, but this directly contradicts the employees’ and supervisors’ statements at the Central Lost Baggage Office, that even the following day they could not initially tell whether the baggage had even been put on the flight.

[45] Ms. Gibbins maintains that Mr. Vandeperre did not leave his desk to search for her baggage, even when all passengers had left the area and there were no passengers at the lost baggage desk. She asserts that Mr. Vandeperre did not tell her that he would look for her baggage, and that if he were going to assist her, he would have indicated to her that there was a form to complete, and that she should wait at the airport, but he did not. She submits that if Mr. Vandeperre intended to assist her or search for her baggage, he would have indicated that it was going to be a problem to give her the baggage once she was outside the secure baggage area, or that it would have been difficult to have her sign the form once she was outside the baggage area, but he did not. Ms. Gibbins argues that Mr. Vandeperre did not mention that she needed a form to get by the customs agent, even though he knew that she had exited the secure baggage area to use the washroom. Ms. Gibbins reiterates that Mr. Vandeperre did not tell her that there were forms she needed to complete, and she assumed that as he had entered her baggage tag number in his computer, and brought up her information, he had entered the required information in the computer system.

[46] Ms. Gibbins submits that before she passed through customs, she asked the customs agent if he knew where the closest washroom was, and that he did not inform her that she was leaving a restricted area, that she could not return to the baggage area once she had left, and that she required a form, and that he did not ask her if she was missing baggage.

[47] Ms. Gibbins maintains that after she returned home and reported her lost baggage to the Central Lost Baggage Office at Air France, and after she called several times a day during the following days and weeks, to both the Central Lost Baggage Office and the airport itself, Air France repeatedly stated that the agent in Montréal was remiss in not providing her with the appropriate form, and that it would not jeopardize her claim. Ms. Gibbins submits that she was sent forms to list the contents of her baggage, which she completed and returned. She indicates that there was never any mention of any customs form that was supposed to have been given to her by the agent, and that Air France never advised her that the agent had searched for her baggage, despite Air France repeatedly insisting that it had done a complete investigation of what occurred and had spoken several times to Mr. Vandeperre during the course of that investigation.

[48] Ms. Gibbins contends that Air France has admitted that it was Mr. Vandeperre’s responsibility to provide the forms for the lost baggage and customs, but he did not, and that after the investigation by the central lost baggage department, it deemed Air France responsible for reimbursing her for the baggage and its contents. Ms. Gibbins argues that the fact that Air France sent her the forms to complete indicates Air France’s acceptance of liability and its intention to reimburse her. She adds that supervisors were involved in this decision, which was only made after a full investigation and after those supervisors spoke to Mr. Vandeperre. Ms. Gibbins maintains that Ms. Vandeperre is protecting his own best interests by not admitting liability and responsibility for her lost baggage, lest he be made responsible for reimbursing her.

ANALYSIS AND FINDINGS

Issue 1: Did Air France fail to apply the provisions set out in the Tariff relating to liability respecting baggage by refusing to compensate Ms. Gibbins, thereby contravening subsection 110(4) of the ATR? If so, what compensation is due to Ms. Gibbins?

[49] The Tariff provision governing Air France’s limit of liability for lost baggage (Rule 55(D)(4)(c)(i)) provides that:

Amount of the compensable damage:

(i) For checked baggage and with the exception of acts or omissions committed with the intention of causing damage or imprudently with the awareness that damage could result therefrom, the carrier’s liability in the event of damage shall be limited to 1,131 SDR per passenger. If a higher value is declared, the carrier’s liability shall be limited to the value declared, unless the carrier can provide proof that said value is higher than the passenger’s genuine interest at the time of delivery.

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

[51] Accordingly, in order for Ms. Gibbins’ complaint to succeed, she bears the burden to establish, on a balance of probabilities, that the loss of her baggage occurred while under the care and control of Air France.

[52] While the Agency accepts Air France’s evidence that Ms. Gibbins’ baggage was placed on Flight No. AF348, this fact in itself is not sufficient to relieve Air France of its liability.

[53] Air France states that the passenger’s good faith is usually presumed when declaring the loss of checked baggage, and that the passenger’s declaration is accepted as being prima facie evidence of that loss. Air France asserts that, in some cases, circumstances or a passenger’s behavior or statements may push the presumption aside, and that a carrier must be able to reasonably assure itself that a claim is valid.

[54] The Agency notes that there are notable differences between the submissions filed by Ms. Gibbins and those filed by Air France, among which are: the period that Ms. Gibbins may have spent at the Montréal airport seeking to recover her baggage; the degree to which she was assisted by Air France staff in attempting to retrieve her baggage; and, the nature and extent of the interaction between Ms. Gibbins and Air France staff respecting this matter. The Agency also notes that Air France questions Ms. Gibbins’ submission regarding her departure from the restricted baggage area in search of a washroom, and the CBSA customs proceedings that followed.

[55] When contradictory versions of events are presented by the parties, the Agency has previously ruled, recently in Decision No. 444-C-A-2012 (Boutin v. Air Canada), that the burden falls on the complainant to establish that their version is the most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[56] In determining which version is more probable, the Agency is guided by Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C.C.A.) (QL); [1952] 2 D.L.R. 354, where the test to be applied when credibility is at issue is well established. The following passage from Faryna v. Chorny, at paragraph 11, sets out the test to apply:

[...] The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. [...].

[57] The Agency, in considering the credibility of the parties, assesses the evidence and submissions from both parties. In assessing the evidence, the Agency may make findings based on common sense and reject inconsistent evidence.

[58] The Agency has reviewed the evidence and finds that Air France’s version of the events is more probable than the version presented by Ms. Gibbins. Air France has provided detailed information relating to this matter, with affidavits by relevant employees. The Agency finds that the evidence provided by Air France is consistent and coherent, and supports Air France’s version of what transpired. On the other hand, Ms. Gibbins’ submissions lack consistency, for example, regarding the time she spent at the Montréal airport in an effort to locate her baggage, and to report its alleged loss.

[59] In particular, the period that Ms. Gibbins may have spent at the Montréal airport seeking to recover her baggage is troubling. Ms. Gibbins asserts in her complaint that she had to stand “in line twice for a long time”, had to stand “in line repeated times and walk great distances”, that she was desperate to find her bag and that “hours had passed”, and that she had been “in the airport for hours” trying to find her baggage. The facts, as credibly presented by Air France and accepted by the Agency, demonstrate that the aircraft landed at 8:48 p.m. Ms. Gibbins arrived at the baggage carrousel between approximately 9:20 p.m. and 9:25 p.m. At approximately 9:30 p.m., Ms. Gibbins first reported her baggage missing. At approximately 10:00 p.m., she called Air France from outside the protected baggage area to report her baggage loss a second time, after going through customs. It appears that Ms. Gibbins made little effort to locate her baggage prior to declaring it lost. The Agency would have expected a traveller such as Ms. Gibbins to have taken reasonable steps to locate the baggage before leaving the protected baggage area. Furthermore, the Agency draws a negative inference from Ms. Gibbins’ version, with its exaggerated descriptions of time and events.

[60] The lack of plausibility in Ms. Gibbins’ submissions, when combined with the notable differences between the submissions filed by her and those filed by Air France, leads the Agency to doubt the credibility of Ms. Gibbins.

[61] On a balance of probabilities, the Agency finds that Ms. Gibbins has failed to establish that the loss of her baggage has occurred while under Air France’s control.

[62] The Agency finds that Ms. Gibbins has not discharged her burden to demonstrate that Air France contravened subsection 110(4) of the ATR and, therefore, dismisses Ms. Gibbins’ claim for compensation.

Issue 2: Is Air France’s Tariff Rule 115(N)(1) inconsistent with paragraph 2 of Article 17 of the Montreal Convention, and therefore unreasonable within the meaning of subsection 111(1) of the ATR?

[63] Air France maintains that it fulfilled its obligation to deliver Ms. Gibbins’ baggage by placing it on the carousel. In this regard, Air France refers to Rule 115(N)(1) of Air France’s Tariff, which provides that:

[…] Carrier is under no obligation to ascertain that the bearer of the baggage check and baggage (claim) tag is entitled to delivery of the baggage, and carrier is not liable for any loss, damage or expense arising out of or in connection with such delivery of the baggage.[…]

[64] The Montreal Convention applies to this matter, and supersedes any term and condition of carriage that is in conflict with that Convention. Paragraph 2 of Article 17 of the Montreal Convention provides, in part, that:

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 charge of the carrier.[…]

[65] In previous decisions, the Agency addressed the matter of when the liability of the carrier ceases with respect to the delivery of baggage.

[66] At paragraph 26 of Decision No. 211-C-A-2004 (Zimmerman v. Skyservice), the Agency stated:

It is more difficult to determine the end of the transportation of baggage. The carrier’s charge does not end just because the baggage is handed over to a third party (i.e., airport ground handlers). This does not free the carrier from its obligations vis-à-vis the entitled claimant. This means that the period after the landing, during which the baggage is stored with a third party (within the airport’s boundaries) until delivery to the passenger, is still part of the carriage by air (Elmar Giermulla et al., Warsaw Convention - Commentary, The Hague, The Netherlands, Kluwer Law International, 1998, Art. 18, at page 25 [Suppl. 15 (January 2002)], para. 35 [Reference to footnote No. 2 OLG Cologne, 1982, TranspR 43 and 1982 ZLW 167]).

[67] Further, at paragraph 24 of Decision No. 371-C-A-2005 (Pednault v. Kelowna Flightcraft), the Agency found that:

Thus, a carrier is responsible for the care and safekeeping of bags entrusted to it until such time as those bags are reunited with their owners. A carrier is therefore liable for any loss of bags or items contained in the bags during the period in which they are in the carrier’s care, including the time that the bags are in the hands of a third party. The failure of a carrier and/or its agents to exercise due diligence in this regard can lead directly to the loss of goods, with no fault or negligence on the part of the passenger.

[68] In addition, at paragraph 88 of Decision No. 467-C-A-2012 (Lukács v. United), the Agency found that:

[...] The Agency is of the opinion that during the period that baggage is undergoing security inspections, the baggage is in the charge of the carrier. The statement in Rule 28(D)(4) that United is not liable for destruction, loss, damage or delay of baggage occurring during that period is a provision that relieves United from liability for destruction, loss, or damage to baggage in a manner that is inconsistent with Article 17(2) of the Montreal Convention.

[69] In these Decisions, the Agency concluded, among other things, that the carrier satisfies its contractual obligation only when baggage is reunited with its owner. The Agency notes that Air France’s claim that it fulfilled its obligation to deliver Ms. Gibbins’ baggage by placing it on the carousel contradicts this principle.

[70] In light of the foregoing, the Agency is of the preliminary opinion that Rule 115(N)(1) of Air France’s Tariff is inconsistent with paragraph 2 of Article 17 of the Montreal Convention, and is therefore unreasonable within the meaning of subsection 111(1) of the ATR.

Issue 3: Is Air France’s Tariff Rule 55(D)(5)(a)(i) inconsistent with paragraph 1 of Article 35 of the Montreal Convention, and therefore unreasonable within the meaning of subsection 111(1) of the ATR?

[71] Air France submits that, with reference to Rule 55(D)(5)(a)(i) of the Tariff, by leaving the baggage room, Ms. Gibbins made it impossible for Air France to investigate her claim that her baggage was not delivered to her in the baggage area.

[72] Rule 55(D)(5)(a)(i) of Air France’s Tariff provides that:

[…] All missing baggage must imperatively be declared to the carrier as soon as the flight arrives. Any declarations made subsequently may not be taken into account.[…]

[73] The Montreal Convention does not provide any notice requirement for lost baggage. The only deadline imposed by the Montreal Convention relating to claims respecting lost baggage is one established in paragraph 1 of Article 35, which applies generally to actions brought under the Convention. Paragraph 1 of Article 35 provides 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.

[74] In light of the foregoing, the Agency is of the preliminary opinion that Rule 55(D)(5)(a)(i) of Air France’s Tariff is inconsistent with paragraph 1 of Article 35 of the Montreal Convention, and is therefore unreasonable within the meaning of subsection 111(1) of the ATR.

SUMMARY OF CONCLUSIONS

Issue 1

[75] The Agency finds that Ms. Gibbins has not discharged her burden to demonstrate that Air France contravened subsection 110(4) of the ATR and, therefore, her claim for compensation for the alleged loss of her baggage is dismissed.

Issue 2

[76] The Agency finds, on a preliminary basis, that Rule 115(N)(1) of Air France’s Tariff is inconsistent with paragraph 2 of Article 17 of the Montreal Convention, and is therefore unreasonable within the meaning of subsection 111(1) of the ATR.

Issue 3

[77] The Agency finds, on a preliminary basis, that Rule 55(D)(5)(a)(i) of Air France’s Tariff is inconsistent with paragraph 1 of Article 35 of the Montreal Convention, and is therefore unreasonable within the meaning of subsection 111(1) of the ATR.

DIRECTION TO SHOW CAUSE

[78] The Agency provides Air France with the opportunity to show cause by (within 30 days of this Decision) why the Agency should not disallow Tariff Rules 115(N)(1) and 55(D)(5)(a)(i) on the grounds that they are inconsistent with paragraph 2 of Article 17 and paragraph 1 of Article 35 of the Montreal Convention, respectively, and are therefore unreasonable within the meaning of subsection 111(1) of the ATR.

[79] If Air France does not respond to the show cause direction, Tariff Rules 115(N)(1) and 55(D)(5)(a)(i) are disallowed effective December 9, 2013. Air France must, in that case, remove all references to these provisions from its Web site as of that date.


                           APPENDIX

Air Transportation Regulations

Subsection 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.

Subsection 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.

The Montreal Convention

Article 17 – Death and injury of passengers – damage to baggage

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. 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.

Article 35 – Limitation of Actions

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.

Member(s)

Sam Barone
J. Mark MacKeigan
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