Decision No. 63-C-A-2017

March 29, 2017

APPLICATION by Manpreet Kaur against China Eastern Airlines Corporation Limited also carrying on business as China Eastern Airlines and as China Eastern (China Eastern).

Case number: 
16-06000

SUMMARY

[1] Manpreet Kaur filed an application with the Canadian Transportation Agency (Agency) concerning the loss of her checked baggage while travelling with China Eastern on July 22, 2016 from Delhi, India to Vancouver, British Columbia, Canada via Shanghai, China.

[2] Ms. Kaur requests compensation in the amount of CAD$1,445 for the contents of her lost baggage, which included various items of clothing, cosmetics and books.

[3] The Agency will address the following issue:

Did China Eastern properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 505 (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 Ms. Kaur for the items in her lost baggage, contrary to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If China Eastern did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Kaur?

[4] For the reasons set out below, the Agency finds that China Eastern, by not compensating Ms. Kaur for her lost checked baggage, did not properly apply the terms and conditions of carriage set out in its Tariff. Therefore, the Agency orders China Eastern to compensate Ms. Kaur, by April 28, 2017, in the amount of CAD$1,445 for the loss of her checked baggage.

BACKGROUND

[5] Upon arrival at the Vancouver International Airport on July 22, 2016, Ms. Kaur was unable to locate her baggage. She filed a lost baggage claim on the same day. Subsequently, she contacted China Eastern regarding the status of her claim and was informed that the compensation process had not yet started because she had not provided receipts for the items claimed. Ms. Kaur does not have receipts for all of the items that she claims. However, she provided to China Eastern copies of the receipts she does have. China Eastern advised her that the receipts are invalid as they are handwritten. Accordingly, Ms. Kaur has not received any compensation for her lost baggage.

THE LAW

[6] The provision of the Montreal Convention, statutory extracts and Tariff provisions relevant to this matter are set out in the Appendix.

MS. KAUR’S POSITION

[7] According to Ms. Kaur, it is “common sense” that nobody retains receipts for long periods after making purchases.

[8] Ms. Kaur argues that the majority of the shops in the area of India that she is from issue handwritten receipts. Ms. Kaur contends that China Eastern cannot dictate the types of receipts that shops should issue.

[9] In support of her application, Ms. Kaur filed four handwritten receipts for various items of clothing and cosmetics that she purchased between May and July of 2016, for a total amount of 30,734 Indian rupees. She also filed a China Eastern baggage claim form for a total amount of CAD$1,445, which gives a description of the lost items, the quantity of each item, as well as their respective values.

[10] Ms. Kaur submits that her claim of CAD$1,445 is justified considering that she is a student who was going to reside in a foreign country for two years.

CHINA EASTERN’S POSITION

[11] China Eastern admits that Ms. Kaur’s checked baggage did not arrive in Vancouver and that, as such, it was declared missing. China Eastern submits that it started the compensation process; however, it needed receipts to calculate the amount of compensation. China Eastern indicates that as it relies on receipts for the processing of compensation, it prefers official receipts rather than handwritten ones.

[12] China Eastern states that based on the receipts that Ms. Kaur was able to provide, the total claim indicated is 30,734 Indian rupees, which is equivalent to CAD$609 based on the real-time currency exchange rate.

ANALYSIS AND DETERMINATION

[13] In accordance with a well-established principle on which the Agency relies when considering 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 of carriage set out in its tariff.

[14] It is uncontested that China Eastern lost Ms. Kaur’s baggage. What is disputed is the amount of compensation due to Ms. Kaur, pursuant to the Tariff.

[15] Rule 55(c) of the Tariff provides, in part, that for the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated therein.

[16] Article 22(2) of the Montreal Convention provides that:

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.

[17] Rule 55(C)(3) of the Tariff provides, in part, that all claims related to baggage liability are subject to proof of amount of loss.

[18] In 308-C-A-2010">Decision No. 308-C-A-2010 (MacGillivray v. Cubana de Aviación S.A.) respecting a delay in the delivery of baggage, the Agency stated that to prove a fact, a party must present the best evidence available in light of the nature and circumstances of the case. Furthermore, the Agency noted that Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase. The Agency is of the opinion that a claim is obviously buttressed by the production of such evidence; however, it is not mandatory under the Montreal Convention because it is impractical, in many circumstances, for a passenger to provide original receipts, handwritten or otherwise, for all losses.

[19] The Agency has reviewed the evidence and submissions provided by Ms. Kaur and notes that: (a) Ms. Kaur reported her loss in a timely manner; (b) she provided a description of the lost items, the quantities, as well as their values; (c) the lost items are in keeping with the purpose of her trip; and (d) the baggage contents are not disputed by China Eastern. The Agency therefore accepts Ms. Kaur’s evidence in this respect as it accords with common sense and is reasonable, having regard to the circumstances.

[20] In light of the specifics of this case, the Agency is satisfied that Ms. Kaur provided the best evidence available to her, and finds that the itemized list and Ms. Kaur’s description of the baggage contents for which she was unable to provide receipts constitute adequate proof of loss.

[21] The Agency finds that Ms. Kaur is entitled to compensation for the loss of her checked baggage, and that she has provided sufficient evidence to establish, on a balance of probabilities, that the items in her checked baggage totalled CAD$1,445.

ORDER

[22] Based on the above findings, and pursuant to section 113.1 of the ATR, the Agency orders China Eastern to compensate Ms. Kaur, by April 28, 2017, in the amount of CAD$1,445 for the loss of her checked baggage. The Agency directs China Eastern to advise the Agency when it has compensated Ms. Kaur.


APPENDIX 

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

Article 22(2) – Limits of Liability in Relation to Delay, Baggage and Cargo

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.

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.

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.

China Eastern’s International Passenger Rules and Fares Tariff, NTA(A) No. 505

Rule 55(C) – Limitation of Liability

For Travel Governed by the Montreal Convention

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.

[…]

Rule (55)(C)(3)

Any liability of carrier is limited to 250 French gold francs (approximately +[N]USD20.00/CAD 26.00) per kilogram in the case of checked baggage and 5000 French gold francs (approximately +[N]USD 400.00/CAD 520.00) per passengers in the case of unchecked baggage or other property, unless a higher value is declared in advance and additional charges are paid pursuant to the carrier’s regulations. In that event, the liability of the carrier shall be limited to such higher declared value. 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.

[…]

Member(s)

P. Paul Fitzgerald
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