Decision No. 73-C-A-2017

May 18, 2017

APPLICATION by Lev Marder against Jet Airways (India) Limited (Jet Airways).

Case number: 
17-00860

SUMMARY

[1] Lev Marder filed an application with the Canadian Transportation Agency (Agency) against Jet Airways with respect to the loss of his checked baggage following his August 16, 2016 flight from Amsterdam, Kingdom of the Netherlands to Toronto, Ontario, Canada.

[2] Mr. Marder requests compensation in the amount of CAN$1,315.93 for the items he purchased during the period his baggage was missing. Mr. Marder also requests further financial relief, in the amount of CAN$1,000, for the stress and time that he spent attempting to communicate with Jet Airways.

[3] Jet Airways acknowledged receipt of Mr. Marder’s application, but did not file an answer to it.

[4] Mr. Marder seeks compensation pursuant to the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) as they apply to lost/delayed baggage. Mr. Marder claims that his baggage did not arrive in Toronto, and that after 21 days he submitted a lost baggage claim with Jet Airways, pursuant to Article 17(3) of the Montreal Convention. Although Mr. Marder’s baggage was eventually found and returned to him by Jet Airways on September 20, 2016, the Agency will consider this to be a claim for lost baggage according to the Montreal Convention.

[5] The Agency will address the following issue:

Did Jet Airways properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), which incorporates by reference the 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)? If Jet Airways did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Mr. Marder?

[6] For the reasons set out below, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rule 55(C)(18) of its Tariff. Therefore, the Agency orders Jet Airways to compensate Mr. Marder in the amount of CAN$1,316.52 by no later than July 4, 2017.

BACKGROUND

[7] Upon arrival at the Toronto Pearson International Airport on August 16, 2016, Mr. Marder was unable to locate his checked baggage.

[8] Mr. Marder filed a missing baggage report and contacted Jet Airways several times to obtain information regarding his baggage, and compensation for it; however, he was unsuccessful in his efforts.

[9] Mr. Marder was unable to retrieve his baggage until September 20, 2016 when it was returned to him by Jet Airways.

[10] Mr. Marder filed an application with the Agency on February 22, 2017.

THE LAW

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

POSITIONS OF THE PARTIES

Mr. Marder’s position

[12] Mr. Marder claims that all of his essential belongings were in the lost baggage.

[13] Mr. Marder states that on August 17, 2016, he sent an e-mail to Jet Airways, seeking the airline’s guidelines on how to replace the items in his lost baggage; however, according to Mr. Marder, Jet Airways did not respond to his request. Mr. Marder indicates that as a result, he was forced to purchase many items of clothing and other necessities in order to replace the items in his lost baggage.

[14] Mr. Marder submits that on September 8, 2016, he contacted Jet Airways’ Key Account Executive, via e-mail, to request a compensation form for his lost baggage. He further submits that in his e-mail, he claimed that more than 22 days had elapsed since his baggage was missing and indicated that he was entitled to compensation for lost baggage pursuant to the Montreal Convention. Mr. Marder submits that Jet Airways did not respond to his request for compensation.

[15] According to Mr. Marder, on September 18, 2016, he sent another e-mail to Jet Airways demanding compensation and stating that “[a]fter 21 days, the luggage is considered lost and even if for the next ten years you try to say that Jet Airways is trying to find the luggage, this is inconsequential. There are specific rules and laws under the Montreal Convention that Jet Airways must adhere to and compensate me the full amount I requested…”

[16] Mr. Marder alleges that on September 20, 2016, a courier company contacted him and returned his baggage at the request of Jet Airways.

[17] Mr. Marder submits that he wrote again to Jet Airways on October 3, 2016, seeking compensation in the amount of CAN$1,315.93. According to Mr. Marder, the amount he is claiming is below the 1131 Special Drawing Rights liability limits allowed under the Montreal Convention. Mr. Marder indicates that Jet Airways did not respond.

Jet Airways’ position

[18] As indicated above, Jet Airways did not file an answer to the application. On March 9, 2017, Jet Airways acknowledged receipt of the application.

Findings of Facts

[19] Mr. Marder did not receive his baggage when he arrived at the Toronto Pearson International Airport.

[20] In support of his application, Mr. Marder provided copies of his e-mail correspondence with Jet Airways. In an e-mail dated September 1, 2016, the Toronto Baggage Service of Jet Airways informed Mr. Marder that it was extending the tracing period to find the missing baggage. Specifically, Jet Airways informed Mr. Marder of the following: “Appreciate your patience, if the bag is not found till the end of next week we shall declare it lost and inform you of the compensation amount.” It appears that Jet Airways’ staff conceded that Mr. Marder’s baggage was missing on September 1, 2016.

[21] In an e-mail dated September 8, 2016, Mr. Marder communicated to Jet Airways that his baggage should be declared lost and that he was entitled to compensation pursuant to the Montreal Convention. Mr. Marder wrote to Jet Airways on September 18, 2016, requesting compensation for lost baggage pursuant to the Montreal Convention because his baggage was missing for more than 21 days.

[22] On September 20, 2016, Jet Airways returned Mr. Marder’s baggage to him.

[23] On October 3, 2016, Mr. Marder contacted Jet Airways again seeking compensation for his lost baggage.

[24] Mr. Marder included with his application proof of purchase for the items that he had to replace as a result of his baggage being lost.

[25] In light of the above, the Agency finds that Mr. Marder’s baggage was lost.

ANALYSIS AND DETERMINATION

Did Jet Airways properly apply the terms and conditions of carriage set out in its Tariff, which incorporates by reference the Montreal Convention, with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR? If Jet Airways did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Mr. Marder?

[26] In accordance with a well-established principle on which the Agency relies when considering such 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.

[27] As Jet Airways did not file an answer to the application, Mr. Marder’s claims and evidence remain uncontested.

[28] Tariff Rule 55(C)(18) incorporates by reference the Montreal Convention. Under Article 17(2) of the Montreal Convention, a 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. Mr. Marder’s baggage was under the care and control of Jet Airways and Jet Airways acknowledged that his baggage was missing. Consequently, the Agency finds that Jet Airways is liable for the loss of Mr. Marder’s baggage as set out under Article 17(2) of the Montreal Convention.

[29] Pursuant to Article 17(3) of the Montreal Convention, if a checked baggage has not arrived at the expiration of 21 days following the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage. On three separate occasions, Mr. Marder sought compensation from Jet Airways for his lost baggage; however, Jet Airways did not compensate Mr. Marder accordingly.

[30] Therefore, the Agency finds that Mr. Marder has established, on a balance of probabilities, that by not compensating Mr. Marder for the damages he incurred as a result of the loss of his baggage, Jet 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.

[31] Section 113.1 of the ATR provides that where an air carrier that provides an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in its tariff, the Agency may direct it to pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions of carriage set out in its tariff.

[32] Mr. Marder is seeking compensation for CAN$1,315.93, in accordance with the Montreal Convention, for damage occasioned by the loss of his baggage. This amount represents the replacement value for the items that he required while his baggage was lost.

[33] The Agency notes that Jet Airways would normally have had the right to ask for proof of all replacement items purchased. However, the Agency finds that in light of the receipts provided by Mr. Marder, in the absence of an answer to Mr. Marder’s application from Jet Airways, and given that the amount claimed does not exceed the limit set out in Article 22(2) of the Montreal Convention, i.e., 1,131 SDR for each passenger, or the equivalent of CAN$2,053.84, the amount of compensation sought by Mr. Marder is reasonable.

[34] Mr. Marder submitted copies of receipts for the replacement items that he had to purchase before his bag was returned to him after 34 days. Accordingly, the Agency finds it reasonable to award Mr. Marder CAN$1,316.52.

[35] In addition, Mr. Marder seeks compensation in the amount of CAN$1,000 for the stress caused by Jet Airways’ failure to respond to his requests for information and compensation. On March 2, 2017, the Agency informed Mr. Marder that it does not have jurisdiction to award compensation for pain and suffering or to deal with customer service issues.

ORDER

[36] In light of the above findings, and pursuant to section 113.1 of the ATR, the Agency orders Jet Airways to compensate Mr. Marder in the amount of CAN$1,316.52. The Agency expects Jet Airways to provide the compensation to Mr. Marder as soon as possible and, in any event, no later than July 4, 2017. The Agency remains seized of this application until such time as Jet Airways has paid the compensation to Mr. Marder.


APPENDIX

Convention for the Unification of Certain Rules for International Carriage by Air – 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 an inherent defect, quality or vice of the baggage. […]

(3) If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

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

(2) 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:

take the corrective measures that the Agency considers appropriate; and 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.

Jet Airways (India) Limited’s International Passenger Rules and Fares Tariff, NTA(A) No. 521

Rule 55(C)(18) provides that:

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.

Member(s)

William G. McMurray
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