Decision No. 69-C-A-2017

April 13, 2017
APPLICATION by Isaac Robert Issug against British Airways Plc carrying on business as British Airways (British Airways).
Case number: 
17-00167

SUMMARY

[1] Isaac Robert Issug filed an application with the Canadian Transportation Agency (Agency) against British Airways regarding the loss of one of his pieces of checked baggage while travelling from Calgary, Alberta, Canada to Paris, France via London, United Kingdom, on October 16 and 17, 2016. Mr. Issug’s application also pertains to a piece of baggage that was damaged during the return flight from Paris to Calgary on November 11, 2016.

[2] Mr. Issug is requesting that the Agency order British Airways to return his piece of baggage and its contents which, according to him, are worth over CAN$1,500.

[3] The Agency will address the following issues:

  1. Did British Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 306 (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 liability of carriers respecting baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
  2. If British Airways did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Issug?

[4] For the reasons set out below, the Agency finds that British Airways did not properly apply the terms and conditions set out in its Tariff. Therefore, the Agency orders British Airways to compensate Mr. Issug in the amount of CAN$2,053.84, by May 13, 2017.

BACKGROUND

[5] On October 16 and 17, 2016, Mr. Issug travelled with British Airways on Flight No. 102 from Calgary to London and on Flight No. 322 from London to Paris, respectively.

[6] On November 11, 2016, Mr. Issug travelled with British Airways on Flight No. 335 from Paris to London and on Flight No. 103 from London to Calgary.

THE LAW

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

POSITIONS OF THE PARTIES

Mr. Issug’s position

[8] Mr. Issug states that upon arrival at Charles de Gaulle Airport (CDG Airport) in Paris, he could not find his piece of baggage. He alleges that with the assistance of a British Airways agent, he searched for it, but still could not find it. He then filed a Missing Baggage Report (dated October 17, 2016). Mr. Issug was issued missing baggage reference No. BA 733424 and Missing Baggage Report No. CDGBA 47857. He claims that he was informed that, in the event that the piece of baggage was found, it would be sent to his address. He adds that the British Airways official did, however, ask him to wait 21 days before filing a claim.

[9] Mr. Issug states that on November 1, 2016, he received confirmation that his piece of baggage had been found and that it would be delivered to him in the next few days.

[10] In support of his argument, Mr. Issug filed a copy of the Missing Baggage Report indicating that his piece of baggage had been found.

[11] Mr. Issug alleges that when he called British Airways to follow up, he was told that his piece of baggage would be delivered to him upon his return to Calgary on November 11, 2016. Mr. Issug adds that he did not receive it.

[12] In addition, Mr. Issug claims that following his return flight on November 11, 2016, a different piece of baggage was damaged.

[13] On November 15, 2016, Mr. Issug filed with British Airways a claim for the piece of baggage that was lost during his October 16 and 17 flights (reference No. BA 15969841).

[14] On November 20, 2016, Mr. Issug filed with British Airways a claim for the damaged piece of baggage (reference No. BA 15982100).

[15] Mr. Issug states that the air carrier is liable for the destruction or loss of, or damage to, baggage up to 1,131 Special Drawing Rights (SDR) [approximately £1,000 or EUR 1,230]. He adds that for checked baggage, the air carrier is liable even if it is not at fault, except for defective baggage. For unchecked baggage, the air carrier is liable only if it is at fault.

[16] Mr. Issug submits that British Airways did not provide him with an explanation as to why his piece of baggage was not delivered to him, even though British Airways had supposedly found it. He states that he would like to recover his piece of baggage and its contents, whose value he estimates at over CAN$1,500.

[17] With regard to his claim for compensation, M. Issug provided the proof of purchase that was in his possession. He indicates that he filed with British Airways a copy of the invoices for the items contained in his piece of baggage.

British Airways’ position

[18] British Airways states that Mr. Issug checked two pieces of baggage in Calgary (tag Nos. 01257334424 [733424] and 01257334425 [733425]). Baggage No. 733424 was reported missing at CDG Airport.

[19] British Airways submits that Mr. Issug did not contact British Airways to establish his claim for the loss of his piece of baggage until one month later. British Airways denies that baggage No. 733424 was lost.

[20] According to British Airways, it carried Mr. Issug’s two pieces of checked baggage from Calgary to London and from London to Paris. British Airway filed evidence supporting that the pieces of baggage were on board the aircraft. More specifically, British Airways filed a Merlin BSM History Report showing that baggage No. 733424 was the 17th baggage loaded, at 4:33 p.m., into baggage container No. AKH 42835BB in London destined for CDG Airport on Flight No. 332 on October 17, 2016.

[21] British Airways submits that after Flight No. 332 arrived at CDG Airport, the baggage container was offloaded and transported to the baggage arrival belt in the airport terminal. An agent subsequently transferred the baggage from the container and placed them onto the arrival belt that takes the baggage to the carousel located in the baggage arrival hall.

[22] British Airways states that there were no other lost baggage reports for Flight No. 332, and that no baggage were left in container No. AKH 42835BB. According to British Airways, there is no evidence that Mr. Issug’s piece of baggage was lost or illegally taken by baggage handling agents upon arrival at CDG Airport.

[23] With regard to the return flight, British Airways confirms that Mr. Issug checked two pieces of baggage (Nos. 442826 and 442941) for Flight No. 335 on November 11, 2016.

[24] British Airways states that the circumstances surrounding Mr. Issug’s case pertain to a journey of international carriage by air, departing and returning from Canada, with agreed international stopping places, and accordingly, the rights and obligations of the parties are governed exclusively by the Montreal Convention. British Airways points out that Article 17(2) of the Montreal Convention specifically applies to baggage.

[25] According to British Airways, the evidentiary burden falls on Mr. Issug to establish, on a balance of probabilities, that his piece of checked baggage was lost by British Airways while it was on board the aircraft or during any period within which it was in the charge of British Airways. In addition, British Airways submits that based on the evidence provided, Mr. Issug did not, on a balance of probabilities, establish the loss of his piece of baggage.

[26] With regard to Mr. Issug’s claim concerning the alleged lost piece of baggage, British Airway points out that Mr. Issug is claiming CAN$1,646.02 for his piece of baggage and its contents, but that when Mr. Issug filed a lost baggage claim, he requested CAN$4,010. British Airways argues that no receipt or other proof of purchase, either for the original piece of baggage or its contents, or for the replacement piece of baggage, were provided by Mr. Issug.

[27] According to British Airways, it and other air carriers are the victims of orchestrated claims for lost baggage. In addition, British Airways states that this is not a bona fide claim for lost baggage, and that the application should be dismissed with costs being awarded to British Airways.

ANALYSIS AND DETERMINATIONS

[28] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, 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.

Issue 1: Did British Airways properly apply the terms and conditions set out in its Tariff with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR?

[29] British Airways confirmed that Mr. Issug’s pieces of baggage were loaded on the flight to Paris. British Airways sates that the Merlin BSM History Report shows that baggage No. 73324 was the 17th baggage loaded, at 4:33 p.m., into baggage container No. AKH 42835BB in London destined for CDG Airport on Flight No. 332 on October 17, 2016.

[30] When he filed a copy of the Missing Baggage Report, Mr. Issug confirmed that he had informed British Airways that his piece of baggage was missing, and that British Airways was aware of that fact as it issued a missing baggage report number to Mr. Issug. The copy of the Report also includes the date on which the incident was reported as well as the status of the piece of baggage.

[31] The Agency has stated in past decisions (e.g. 227-C-A-2008">Decision No. 227-C-A-2008) 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.

[32] The Agency finds that British Airways was liable for Mr. Issug’s pieces of baggage once they were checked.

[33] In light of the foregoing, the Agency finds that the principle established in 227-C-A-2008">Decision No. 227‑C‑A‑2008 is applicable in this case. Article 17(2) of the Montreal Convention provides, in part, that the carrier is liable for damage sustained in case of loss of, or damage to, checked 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.

[34] In addition, British Airways did not prove that it took all measures that could reasonably be required to justify the delay in delivering Mr. Issug’s piece of baggage or that it was never delivered to him, or that it was impossible for British Airways to take such measures. In addition, the Missing Baggage Report indicated the following: « Status: your bag has been found. Your bag is at your local airport. We will notify you when it is ready for delivery / pickup. » Mr. Issug stated that no follow-up was made to that notification, and that he never recovered his piece of baggage. British Airways did not refute this allegation.

[35] Because Mr. Issug’s missing piece of baggage was under the care and control of British Airways and British Airways was aware that the piece of baggage was missing, the Agency finds that British Airways is liable for the loss of the piece of baggage pursuant to Article 17(2) of the Montreal Convention.

[36] The Agency therefore finds that Mr. Issug has established, on a balance of probabilities, that British Airways did not properly apply the terms and conditions set out in its Tariff with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

Issue 2: If British Airways did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Issug?

[37] Mr. Issug is requesting that his piece of baggage and its contents, whose value he estimates at over CAN$1,500, be delivered to him. Mr. Issug has provided proof of purchase for most of the items contained in his piece of baggage, for a total of CAN$1,657.02.

[38] With respect to Mr. Issug’s claim concerning the damaged piece of baggage, the Agency finds that the parties’ submissions are incomplete in this regard and, consequently, it cannot reach a decision. Mr. Issug did not file proof of material loss, photos of the damaged piece of baggage, or an estimate from a repair shop of the cost of repairing it.

[39] Article 22(2) of the Montreal Convention limits the liability of the carrier in the case of destruction, loss, damage or delay of baggage to 1,131 SDR for each passenger (the equivalent of CAN$2,053.84).

[40] Mr. Issug provided a description of the items contained in his piece of baggage as well as proof of purchase. Therefore, the Agency finds it reasonable to award Mr. Issug CAN$2,053.84.

ORDER

[41] In light of the above findings, the Agency orders British Airways to compensate Mr. Issug in the amount of CAN$2,053.84, by May 13, 2017.


Appendix

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

Article 17(2) – Death and Injury of Passengers – Damage to Baggage

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. […]

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.

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

(a) take the corrective measures that the Agency considers appropriate; and

(b) 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.

Member(s)

P. Paul Fitzgerald
Date modified: