Decision No. 8-C-A-2018

February 2, 2018

APPLICATION by Jasminka Jasna Mudrinic against Air Serbia a.d. Beograd (Air Serbia).

Case number:
17-03042

SUMMARY

[1] Jasminka Jasna Mudrinic filed an application with the Canadian Transportation Agency (Agency) against Air Serbia regarding damage to her checked baggage and items missing from it. Ms. Mudrinic is seeking compensation in the amount of EUR1,515 for the missing items, and CAN$395 for the damage to the baggage and the excess baggage fees that she paid. [2] The Agency will address the following issues: 1. Did Air Serbia properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 515 (Tariff) which incorporates by reference the Unification of Certain Rules for International Carriage by Air - Montreal Convention (Montreal Convention), by not compensating Ms. Mudrinic for the damage to her checked baggage and items missing from it, contrary to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? 2. If Air Serbia did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Mudrinic? [3] For the reasons set out below, the Agency finds that Air Serbia did not properly apply the terms and conditions set out in Rule 55(C) of its Tariff and orders Air Serbia to compensate Ms. Mudrinic in the amount of CAN$2,675.38 as soon as possible and no later than March 5, 2018.

BACKGROUND

[4] On June 10, 2016, Ms. Mudrinic travelled from Toronto, Ontario, Canada to Belgrade, Serbia, via Amsterdam, Netherlands. The Toronto-Amsterdam portion of her itinerary was operated by Jet Airways (India) Limited, while Air Serbia operated the Amsterdam-Belgrade segment.

[5] Upon her arrival at the Belgrade airport on June 11, 2016, Ms. Mudrinic was unable to locate her checked baggage. On June 12, 2016, she returned to the Belgrade airport to retrieve her baggage and at that time, she discovered that her baggage was damaged and that there were items missing from it.

THE LAW

[6] 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 AND FINDINGS OF FACT

Ms. Mudrinic’s position

[7] Ms. Mudrinic submits that as her baggage weighed 5 kilograms more than the allowable 25 kilograms (i.e. 28 kilograms), she paid CAN$195 to Jet Airways for extra baggage fees at the Toronto Pearson International Airport. She states that when she arrived at the Belgrade airport to retrieve her baggage, she discovered that it was damaged. Ms. Mudrinic submits that she then asked the Air Serbia staff to weigh her baggage; however, they refused to do so, as they believed the baggage weighed the standard 23 kilograms. Ms. Mudrinic therefore concluded that up to five kilograms of her belongings were stolen, and requested that a shift supervisor be called. According to Ms. Mudrinic, when her baggage was opened, there were a number of items missing, including presents. Ms. Mudrinic submits that she then made a list of the missing items and immediately reported it to both Air Serbia and the police. Ms. Mudrinic states that based on her calculation, her loss ranged between EUR1,500 and EUR1,600. [8] Ms. Mudrinic submits that upon her return home to Canada in July 2016, she made an official claim to Air Serbia, wherein she asked to be reimbursed for the value of the stolen items, the damaged baggage, and the extra baggage fees that she paid. [9] Ms. Mudrinic refers the Agency to the baggage liability provisions set out in the Montreal Convention, which state that once checked baggage is destroyed, damaged or lost, the airline is automatically liable to a maximum of 1,131 SDR [approximately CAN$2,007] for each passenger. However, she submits that the Montreal Convention also provides that there is no limit if the damage was done deliberately by airline employees acting in the course of employment, and knowing that damage would result. Ms. Mudrinic maintains that her property was stolen by Air Serbia’s employees, and that as theft is a deliberate act, Air Serbia’s employees knew that damage would result.

[10] Ms. Mudrinic states that in her correspondence with Air Serbia, she indicated that the value of her damaged baggage was CAN$400. In an e-mail to the Agency dated July 7, 2017, Ms. Mudrinic clarified that she purchased her baggage in the United States for over$400; however, she cannot find the receipt. In light of this, she provided an EBay website printout of a similar piece of baggage for $360, and requests compensation in the amount of CAN$200 for her damaged baggage.

[11] To support her application, Ms. Mudrinic provided:

• a list of the items missing from her baggage, totalling EUR1,515;
• four receipts for some of the items missing from the baggage, totalling CAN$326.88; • two bank transaction receipts for some of the items missing from the baggage, totalling CAN$307.69;
• a receipt in the amount of CAN$195 for excess baggage fees paid; • an EBay website printout showing the price of a similar piece of baggage ; • a property irregularity report dated June 11, 2016; • a damage report dated June 12, 2016; • Ms. Mudrinic’s Passenger Name Record containing the baggage claim that she filed with Air Serbia; and, • a police report dated June 12, 2016. Air Serbia’s position [12] On July 14, 2016, Ms. Mudrinic sent an e-mail to Air Serbia asking Air Serbia to reconsider its decision regarding the amount of compensation that it offered her, and return with “an objective reimbursement for her stolen goods.” As its answer to this application, Air Serbia filed its response to Ms. Mudrinic’s July 14, 2016 e-mail. [13] Air Serbia states that it has reviewed its decision, and that based on Ms. Mudrinic’s report of damage, it was unable to approve the amount that she is seeking. Air Serbia explains that the “approved amount” that it is prepared to offer Ms. Mudrinic is based on the Montreal Convention’s conditions for passengers and baggage published on its website, and the experience of its Guest Service Support Team. Findings of Fact [14] It is undisputed that Ms. Mudrinic did not receive her baggage upon her arrival at the Belgrade airport on June 10, 2016, and that when she retrieved the baggage on June 11, 2016, it was damaged and items were missing from it. It is uncontested that Ms. Mudrinic filed a property irregularity report with Air Serbia on June 10, 2016 and a damage report on June 11, 2016. [15] Air Serbia acknowledges that it received, processed and reviewed Ms. Mudrinic’s damaged baggage report, and offered her some compensation for the damages that she incurred. [16] Based on the above, the Agency finds that Ms. Mudrinic’s baggage was delayed in its delivery to her and when found, it was damaged and items were missing from it. ANALYSIS AND DETERMINATIONS Did Air Serbia properly apply the terms and conditions of carriage set out in its Tariff, which incorporates by reference the Montreal Convention, by not compensating Ms. Mudrinic for the damage to her checked baggage and items missing from it, contrary to subsection 110(4) ATR? [17] 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 the terms and conditions set out in its tariff. [18] Rule 55(C) of Air Serbia’s Tariff incorporates by reference the liability rules set out in the Montreal Convention. Pursuant to Article 17(2) of the Montreal Convention, a 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. [19] Article 36(3) of the Montreal Convention provides: As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee. [20] Air Serbia was the last carrier on Ms. Mudrinic’s itinerary and Ms. Mudrinic was entitled to delivery of her baggage upon arrival in Belgrade on her Air Serbia flight. Pursuant to Article 36(3) of the Montreal Convention, the Agency finds that Air Serbia is liable to Ms. Mudrinic for the damage to her baggage and the items missing from it. If Air Serbia did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Mudrinic? [21] Article 22(2) of the Montreal Convention limits the carrier’s liability, in case of destruction, loss of, damage to, or delay of baggage, to an amount of 1,131 Special Drawing Rights (SDR) [approximately CAN$2,007] for each passenger.

[22] Article 22(5) of the Montreal Convention provides that the liability limits set out in Article 22(2) shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

[23] A party, in endeavouring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case.

[24] Based on the evidence filed, Ms. Mudrinic is seeking compensation in the amount of CAN$200 for the damage to her baggage, EUR1,515 for the items that were missing from it, and CAN$195 for the excess baggage fees that she paid. Ms. Mudrinic acknowledges that this amount is in excess of the liability limits set out in the Montreal Convention; however, she submits that the Montreal Convention also states that there is no limit if her loss resulted from deliberate action by the airline. The Agency notes that Air Serbia did not respond to Ms. Mudrinic’s allegation that the missing items were stolen from her baggage.

[25] To support her claim for compensation for the items missing from her baggage, Ms. Mudrinic filed a list of the items and their cost, and a police report detailing the incident. She also filed a receipt for the extra baggage fees paid, along with four receipts and two bank transaction printouts as proof of purchase for some of the missing items. To support her claim for damage to her baggage, Ms. Mudrinic filed website printout of a similar baggage and the cost of it, as she is unable to locate the receipt.

[26] Air Serbia does not dispute that there were items missing from Ms. Mudrinic’s baggage, nor does it dispute that the baggage itself was damaged, or that the loss was as a result of theft. Furthermore, Air Serbia did not respond to Ms. Mudrinic’s position that the items had been stolen while in the care of Air Serbia. What is at issue is the amount of compensation to which Ms. Mudrinic is entitled.

[27] The Agency has reviewed the evidence and submissions filed by Ms. Mudrinic. The Agency notes that Ms. Mudrinic filed a police report shortly after discovering the loss of, and damage to her baggage; provided a description of the lost items, the quantities and their value; and filed receipts for some of the lost items. She was however unable to locate proof of purchase for the damaged baggage.

[28] The Agency notes that Air Serbia would normally have the right to ask for proof of all losses; however, the Agency finds that in light of the damaged baggage, property irregularity and police reports filed by Ms. Mudrinic, her claim accords with common sense and is reasonable, in these circumstances.

[29] Based on the above, Agency finds that by not compensating Ms. Mudrinic for the damaged baggage, the items missing from it, and the excess baggage fees, Air Serbia failed to apply the terms and conditions set out in Rule 55(C) of its Tariff, which incorporates the Montreal Convention by reference, and has therefore contravened subsection 110(4) of the ATR. As Ms. Mudrinic’s assertion that her loss was intentionally caused by Air Serbia was unchallenged, the Agency accepts that liability limits set out in Article 22(2) of the Montreal Convention do not apply to this matter.

ORDER

[30] Pursuant to section 113.1 of the ATR, the Agency orders Air Serbia to compensate Ms. Mudrinic in the amount of CAN\$2,675.38 as soon as possible and no later than March 5, 2018.

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

Article 17 - 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 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.

Article 22(5) – Limits of Liability in Relation to Delay, Baggage and Cargo

The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

Article 36 - Successive Carriage

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

LIMITATION OF LIABILITY

Except as the Convention or other applicable law may otherwise require:

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 incorportation [sic]herein and shall supersede and prevail over any provisions in this tariff which may be inconsistent with those rules.

Member(s)

P. Paul Fitzgerald
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