Decision No. 9-C-A-2018

February 2, 2018

APPLICATION by Asif Uz Zaman, on behalf of himself, his wife, Jehan Jamir Rumkey, and their minor children (applicants) against Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airline (SAA).

Case number: 
17-03027

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against SAA concerning the cancellation of Flight No. SV0060 from Toronto, Ontario, Canada to Jeddah, Saudi Arabia on December 21, 2016.

[2] The applicants are seeking compensation in the amount of CAN$80,000, consisting of reimbursement for the cost of the air travel tickets, expenses incurred as a result of the delay, and compensation for pain and suffering, inconvenience, and loss of enjoyment.

[3] The Agency will address the following issue:

Did SAA properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA (A) No. 324 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal Convention (Montreal Convention), relating to the liability of the carrier respecting schedule changes, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If SAA did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to the applicants?

[4] For the reasons set out below, the Agency finds that SAA did not properly apply the terms and conditions set out in Rule 55(B)(4) of its Tariff and orders SAA to compensate the applicants in the amount of CAN$250.07 for expenses incurred as a result of the delay. SAA is to pay this amount to the applicants as soon as possible and no later than March 16, 2018.

BACKGROUND

[5] The applicants’ itinerary involved a direct flight with SAA departing from the Toronto Pearson International Airport (Toronto Airport) at 12:45 p.m. on December 21, 2017 and scheduled to arrive at Jeddah’s Zing Abdulaziz International Airport (Jeddah) at 8:30 a.m. on December 22, 2017 (Flight No. SV0060).

[6] Flight No. SV0060 was cancelled after boarding due to damage to one of the aircraft’s wings. The applicants were reprotected on Flight No. SV2031, which departed from Toronto at 11:00 a.m. on December 22, 2017 and arrived in Jeddah around 6:45 a.m. on December 23, 2016. The cancellation of Flight No. SV0060 therefore resulted in a delay of approximately 22 hours and 15 minutes.

PRELIMINARY MATTER

Agency jurisdiction over quality of service, pain and suffering, and loss of enjoyment

[7] The applicants submit that the cancellation of Flight No. SV0060, the subsequent delay in their arrival at their final destination, the lack of adequate food served during the delay and at the hotel, and mistreatment by SAA caused all four passengers to become physically ill and caused them mental distress. They add that Ms. Rumkey became physically ill on the aircraft and was administered an injection by a doctor on board the aircraft. The aircrew subsequently assisted Ms. Rumkey to the airport clinic upon arrival in Jeddah. In addition, all members of the family became physically ill with gastrointestinal discomforts upon arrival in Jeddah. Mr. Zaman and Ms. Rumkey received antibiotics and the children were bedridden for the first three days of their stay in Jeddah.

[8] The applicants travelled to Jeddah in order to participate in Umrah, a religious pilgrimage that involves the performance of particular prayers. They submit that as a result of their physical illness, they were unable to participate in Umrah and this caused them significant mental distress and trauma.

[9] As such, the applicants are seeking a full refund of their tickets and damages for the pain and suffering that they endured. However, the Agency does not have jurisdiction to order compensation for matters relating to quality of service, pain and suffering, or loss of enjoyment (Decision No. 18‑C‑A-2015 and Decision No. 55-C-A-2014). Therefore, the Agency will not consider these issues.

THE LAW

[10] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff, as follows:

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.

[11] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier 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.

[12] Rule 85(B)(2) of SAA’s Tariff outlines the carrier’s obligations with respect to flight cancellations, and states, in part:

Carrier may, without notice cancel, terminate, divert, postpone or delay any flight or the further right of carriage or reservation of traffic accommodations and determine if any departure or landing should be made, without any liability except to refund in accordance with its tariffs the fare and baggage charges for any unused portion of the ticket if it would be adviseable [sic] to do so:

a. […]

b. Because of any fact not to be foreseen, anticipated or predicted; or […].

[13] Rule 55(B)(4) of the Tariff incorporates the Montreal Convention by reference and states that:

(Applicable to AT/[N]GF/IB/MA/MS/OA/PK/RO/SU/SV) 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.

[14] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay of passenger, baggage or cargo:

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.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants’ position

[15] The applicants submit that they boarded Flight No. SV0060 around 12:00 p.m. and were kept on board the aircraft for about four hours without food or information about the delay. They claim that around 4:00 p.m., they were deplaned and brought back to the terminal where they were required to wait in multiple lines for several hours before being provided with transport to a hotel.

[16] The applicants submit that they were charged CAN$250.07 for a “no show” fee for the first night (December 22, 2016) of their hotel booking in Mecca, Saudi Arabia.

SAA’s position

[17] SAA submits that there was a “schedule change” for Flight No. SV0060 because of damage to the aircraft’s wing that was caused by a ground service vehicle. SAA denies liability for the passengers’ delay because it was caused by an event beyond its control that it could not have foreseen or anticipated.

[18] SAA submits that when it became clear that Flight No. SV0060 could not depart as planned on December 21, 2016, it provided the passengers with hotel accommodation, meals, and transportation. SAA states that it expended $786.80 for these services for the applicants notwithstanding the fact that they reside in Mississauga, the municipality in which the Toronto Airport is located.

[19] SAA claims that it attempted to rebook passengers on other air carriers and that it was in fact able to do so for a number of passengers. However, it was unable to rebook the applicants as four seats were not available on any other flight to Jeddah. SAA adds that the Kingdom of Saudi Arabia has specific visa requirements that require that Umrah visitors enter the country through Jeddah and that it is the only carrier that offers a direct flight from the Toronto Airport to Jeddah.

[20] Finally, SAA submits that if it is found to be liable for expenses incurred as a result of the delay, such damages should be offset by the fact that SAA provided hotel accommodation and meals for travellers in Toronto. The compensation available to the applicants should accordingly be limited to 100 SAR (Saudi Arabian riyal), which represents the difference between the 700 SAR no-show fee and the 600 SAR nightly fee that they would have incurred had they stayed at the hotel on December 22, 2016 as scheduled.

Findings of Fact

[21] The Agency finds that the delay was unavoidable and could not have been reasonably predicted because it was the consequence of damage to the aircraft’s wing by a ground vehicle. The Agency considers this to be a “force majeure” event.

[22] Neither party made submissions as to whether SAA offered the applicants any options that would allow them to travel on that day. The Agency therefore finds that the applicants had no choice but to accept the rescheduling.

ANALYSIS AND DETERMINATIONS

[23] When an application is filed with the Agency, the onus is on the applicant to establish that, on a balance of probabilities, the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff, as required by subsection 110(4) of the ATR.

[24] According to Rule 85(B)(2) of SAA’s Tariff, SAA may cancel flights if required by matters beyond its control, including matters that SAA could not foresee or anticipate, such as the “force majeure” event that it experienced when its aircraft’s wing was damaged. However, the Agency recently stated, in Determination No. A-2017-194: “In order for a Force Majeure situation to exempt a carrier from liability for non-performance of an obligation, it must have some connection to the non-performance of that obligation.” SAA therefore cannot be held responsible for the cancellation of Flight No. SV0060, as per Article 19 of the Montreal Convention.

[25] Although SAA cannot be held responsible for the cancellation of Flight No. SV0060, it nonetheless has an obligation to exhaust all measures to avoid the delay and to mitigate the damage occasioned by the delay. The Agency acknowledges that SAA provided passengers with meals, transportation, and hotel accommodations during the delay. The Agency also accepts that SAA tried to rebook as many passengers with other carriers as it was able to, but that it did not rebook the applicants for a variety of reasons. In this, SAA made unilateral decisions for the applicants about mitigating the damage of the delay. In determining how to reprotect the applicants, SAA assumed that the applicants would not have accepted to travel separately or accepted to travel on a flight with connections rather than provide the applicants with the available options. The applicants therefore had no choice but to accept the accommodation provided in Toronto and travel on the following day.

[26] Therefore, the Agency finds that SAA did not take all measures available to avoid the damage caused by the delay. SAA is accordingly liable for the expenses incurred by the applicants as a result of the delay.

[27] With respect to compensation, while the provision of food and hotel accommodation in Toronto may mitigate the expenses incurred by the applicants as a result of the delay, it does not relieve SAA from liability for the additional expenses incurred (see Decision No. 91-C-A-2017).

[28] The Agency therefore finds that SAA is liable for the full amount of the “no-show” fee (100 SAR, equivalent to CAN$250.07) charged to the applicants.

CONCLUSION

[29] Pursuant to paragraph 113.1(b) of the ATR, the Agency orders SAA to compensate the applicants in the amount of CAN$250.07. SAA is to pay this amount to the applicants as soon as possible and no later than March 16, 2018.

Member(s)

P. Paul Fitzgerald
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