Decision No. 56-C-A-2018

September 19, 2018

APPLICATION by Raphael Dotan, Bareket Falk and their minor son (applicants) against El Al Israel Airlines Ltd. (El Al Israel) and Jet Airways (India) Limited (Jet Airways)

 

Case number: 
18-00602

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) regarding the two-day delay that they encountered on the return portion of their international travel from Tel Aviv, Israel, to Toronto, Ontario, via Amsterdam, Netherlands.

[2] Although the applicants originally sought the monetary value of three round trip tickets from Toronto to Tel Aviv, they later amended their claim for compensation to $1,930, broken down as follows: $850 for two days of lost income for the two adult applicants and $1,080 for the cost of the Amsterdam–Toronto segment of their travel. 

[3] The Agency will address the following issues:

  1. Did Jet Airways properly apply its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Jet Airways’ Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), with regard to check-in time limits, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
  2. Did El Al Israel properly apply its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (El Al Israel’s Tariff), which incorporates by reference the Montreal Convention, with regard to involuntary revised routings, as required by subsection 110(4) of the ATR?

[4] In light of the above, the Agency concludes that:

  1. Jet Airways properly applied the terms and conditions set out in its Tariff.
  2. El Al Israel properly applied the terms and conditions set out in its Tariff.

[5] The Agency therefore dismisses the application.

BACKGROUND

[6] The applicants were scheduled to travel from Tel Aviv to Toronto, via Amsterdam, on January 3, 2017. Their trip consisted of an interline itinerary, whereby El Al Israel operated the Tel Aviv–Amsterdam segment and Jet Airways operated the Amsterdam–Toronto segment.

[7] Following the late arrival of the El Al Israel flight, the applicants were refused transportation for their Jet Airways flight to Toronto. El Al Israel subsequently arranged alternate travel for the applicants with Jet Airways, departing on January 5, 2017.

THE LAW

[8] The relevant provisions of the ATR, the Montreal Convention, and the carriers’ tariffs are set out in the Appendix.

POSITIONS OF THE PARTIES

[9] The applicants submit that, on January 3, 2017, their El Al Israel flight was scheduled to land in Amsterdam at 10:30 a.m., following which their Jet Airways flight to Toronto was scheduled to depart at 11:40 a.m. They allege that the El Al Israel flight landed 10 to 15 minutes late, and that they disembarked at approximately 10:55 a.m. The applicants submit that after proceeding through security, they arrived at the Jet Airways gate at 11:20 a.m., 20 minutes before their flight’s scheduled departure time.

[10] According to the applicants, even though boarding was still in progress for the Jet Airways flight, they were told that they were too late to board because they did not have boarding passes. The applicants state that they were eventually rebooked on a similar Jet Airways flight, departing on January 5, 2017.

[11] The applicants submit that they were unable to check in from their hotel on the night of January 3,2017 and that upon returning to the airport the following morning to check in, they were unable to do so at the service desk. The applicants state that they were then taken to the Jet Airways desk, where they were advised that they would not be able to travel on January 5, as their original tickets were Economy class, and only Business class seats were available. The applicants state that they then spoke with an El Al Israel representative, who advised them that the matter was being discussed in Tel Aviv and Delhi. The applicants submit that they left the airport five hours later without knowing whether they would be able to travel on January 5. However, on January 5, 2017, the applicants were permitted to travel on the rebooked flight.

[12] In their application, the applicants allege that, as a result of the two-day delay in their travel, each of the adult applicants lost income for two work days, and the applicants request compensation equivalent to the monetary value of three round trip tickets from Toronto to Tel Aviv.

[13] However, in a later submission, the applicants amended their claim to $1,930, broken down as follows:

  • Two days of lost income for Ms. Falk in the amount of CAN$520 (2 x CAN$260);
  • Two days of lost income for Mr. Dotan in the amount of CAN$330 (2 x CAN$165); and,
  • Compensation in the amount of CAN$1,080 for the cost of the Amsterdam–Toronto flight segment of their travel (alleged to be “approximately 33% of total cost of 2,436 USD”).

[14] Neither Jet Airways nor El Al Israel filed an answer to the application.

Findings of fact

[15] As neither Jet Airways nor El Al Israel filed an answer to the application, the applicants’ evidence and submissions are not challenged. Based on the record before it, the Agency makes the following findings of fact.

[16] The applicants stayed in a hotel in Amsterdam for two nights, but claim no accommodation nor meal expenses arising from their stay. It is fair to assume that this is because El Al Israel already paid for these expenses.

[17] There is no evidence on file concerning the cause of the delay.

[18] Based on the above, the Agency finds that the applicants arrived at their ultimate destination following a two-day delay. The Agency also finds that this delay occurred as a result of the late arrival of the El Al Israel flight and that El Al Israel assumed responsibility for this delay by reprotecting the applicants on a later flight and paying for their hotel accommodation and meals.

ANALYSIS AND DETERMINATIONS

[19] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicants to prove, on a balance of probabilities, that Jet Airways and/or El Al Israel have failed to properly apply, or have inconsistently applied, the terms and conditions of carriage set out in their tariffs.

DID JET AIRWAYS PROPERLY APPLY ITS TARIFF, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION, WITH REGARD TO CHECK-IN TIME LIMITS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

[20] Rule 60(D)(1) of Jet Airways’ Tariff states that passengers must present themselves at the departure gate for boarding at least 45 minutes prior to the scheduled departure time or their reservation and seat assignments are subject to cancellation.

[21] In light of the applicants’ admission that they arrived at the boarding gate 20 minutes prior to the scheduled departure time of their flight, the Agency finds that Jet Airways properly applied its Tariff when it refused to transport the applicants on January 3, 2017.

DID EL AL ISRAEL PROPERLY APPLY ITS TARIFF, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION, WITH REGARD TO INVOLUNTARY REVISED ROUTINGS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

[22] Rules 80(B) and (C) of El Al Israel’s Tariff address instances where El Al Israel fails to operate on schedule and where a passenger misses a connection. Specifically, when El Al Israel fails to operate on schedule, Rule 80(B) requires it to, amongst other options, carry the passenger on another of its flights on which space is available; or, endorse the unused portion of the ticket to another carrier for the purpose of rerouting; or, reroute the passenger by its own or other transportation services. In instances of missed connections, Rule 80(C) requires that the delivering carrier, in this instance El Al Israel, arrange for the carriage of the passenger or make a voluntary refund.

[23] Rule 55(B)(1) of El Al Israel’s Tariff incorporates by reference the Montreal Convention and provides that:

Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention (See Rule 1 (DEFINITIONS), herein) […].

[24] Article 19 of the Montreal Convention provides that:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

[25] At issue is whether El Al Israel properly applied Rules 80(B) and (C) as well as Rule 55(B)(1) of its Tariff.

[26] The applicants’ evidence demonstrates that El Al Israel assumed responsibility for the delay. In fact, following the missed connection, El Al Israel arranged for the carriage of the applicants by reprotecting them on another Jet Airways flight departing on January 5, 2017, with an upgrade to Business Class seats at no additional cost to the applicants. Furthermore, El Al Israel also appears to have paid for the applicants’ hotel and meals during the delay, as no claim for these expenses was made by the applicants.

[27] With regard to the applicants’ claim for compensation in the amount of CAN$1,080 for the cost of the Amsterdam–Toronto leg of their trip, the Agency takes note of a discrepancy in the amount of the applicants’ claim (alleged to be “approximately 33% of total cost of 2,436 USD”) because, based on the invoice filed by the applicants, the tickets were purchased in Canadian dollars. The requested compensation in the amount of CAN$1,080 therefore appears to be overstated. In any event, the Agency finds that the applicants travelled to their final destination with Jet Airways on January 5, 2017, and, as such, they are not entitled to a refund of their tickets. With regard to the applicants’ claim for lost income, the Agency notes that the applicants have not provided any evidence to support such claim, despite being asked by the Agency’s Secretariat to provide proof to substantiate their claim.

[28] In light of the above, the Agency finds that there are no outstanding claims for damages for which El Al Israel should be found responsible and that El Al Israel properly applied its Tariff.

[29] Therefore, the Agency concludes that:

  1. Jet Airways properly applied the terms and conditions set out in its Tariff.
  2. El Al Israel properly applied the terms and conditions set out in its Tariff.

CONCLUSION

[30] The Agency dismisses the application.


APPENDIX TO DECISION NO. 56-C-A-2018

Air Transportation Regulations, SOR/88-58, as amended (ATR)

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.

113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it 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.

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)

Article 19 – Delay

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Jet Airways’ Tariff

LIABILITY OF CARRIERS

[…]

(C) LIMINTATION OF LIABILITY

[…]

(18) 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.

60  CHECK-IN TIME LIMITS

[…]

(D) (1) Passengers must present themselves at the departure gate for boarding at least 45 minutes prior to scheduled departure time or their reservations and seat assignments are subject to cancellation. […]

El Al Israel’s Tariff

55 LIABILITY OF CARRIERS PART A […]

[…]

(B) LAWS AND PROVISIONS APPLICABLE […]

(1) Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention (See Rule 1 (DEFINITIONS), herein) unless such carriage is not “international carriage” as defined by the Convention.

80 REVISED ROUTINGS, FAILURE TO CARRY AND MISSED CONNECTIONS

[…]

(B) INVOLUNTARY REVISED ROUTINGS (See Rule 87 DENIED BOARDING COMPENSATION)

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space or the passenger is refused passage or removed, in accordance with Rule 25 (REFUSAL TO TRANSPORT, LIMITATIONS OF CARRIAGE) herein, carrier will either:

  1. Carry the passenger on another of its passenger aircraft on which space is available; or
  2. Endorse to another carrier to any other transportation service the unused portion of the ticket for purposes of rerouting; or
  3. Reroute the passenger to destination named on the ticket or applicable portion thereof by its own service or by other means of transportation; and, if the fare, excess baggage charges and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portions, as determined by Rule 90 (REFUNDS) herein, carrier will require no additional payment from the passenger, but will refund the difference if the fare and charges for the revised routing are lower, or
  4. Make involuntary refund in accordance with the provisions of Rule 90 (REFUNDS) herein.

[…]

(C) MISSED CONNECTIONS

In the event a passenger misses an onward connecting flight on which space has been reserved for him/her because the delivering carrier did not operate its flight according to schedules or changed the schedule of such a flight, the delivering carrier will arrange for the carriage of the passenger or make involuntary refund in accordance with Rule 90 (REFUNDS) herein.

NOTE: For the purpose of this rule, the term Delivering carrier means a carrier on whose flight a passenger holds or held confirmed space to a connecting point.

Member(s)

Elizabeth C. Barker
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