Decision No. 91-C-A-2017

September 21, 2017

APPLICATION by Hanan Hussein on behalf of herself and her two minor children against Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airlines (SAA).

Case number: 
17-00661

SUMMARY

[1] Hanan Hussein filed an application with the Canadian Transportation Agency (Agency) against SAA regarding the rescheduling of her and her infant children’s flight from Toronto, Ontario, Canada to Jeddah, Saudi Arabia, on two separate occasions.

[2] Ms. Hussein seeks compensation in the amount of CAN$3,000 (i.e. an amount of CAN$1,000 to each traveller) for lost time and for expenses incurred as a result of the schedule changes.

[3] SAA maintains that Ms. Hussein is not entitled to any compensation as she accepted the first schedule change, and as the subsequent schedule change was outside of the carrier’s control.

[4] The Agency will address the following issues:

  1. Did SAA properly apply the terms and conditions of carriage set out in 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), concerning 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)?
  2. If SAA did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Hussein?

[5] For the reasons set out below, the Agency finds that:

  1. With respect to the first schedule change, which advanced the date of the flight, SAA properly applied the terms and conditions set out in Rules 2(iii) and 85(A) of its Tariff. As such, SAA is not liable for any damages incurred as a result of that schedule change. With respect to the subsequent schedule change, which delayed the departure of the flight, SAA has not proven that it took all measures that could reasonably be required to avoid damage caused by that delay, contrary to the Montreal Convention. As such, SAA is liable for any damages incurred as a result of that schedule change.
  2. Ms. Hussein is entitled to compensation in the amount of CAN$610.

BACKGROUND

[6] Ms. Hussein and her two infant children were originally scheduled to travel from Toronto to Jeddah on December 22, 2016, on SAA’s Flight SV060. Sometime before November 26, 2016, SAA advised Ms. Hussein that Flight SV060 was advanced to December 21, 2016 (first schedule change). Subsequent to the arrival of the aircraft in Toronto on December 21, 2016, an airside service vehicle made contact with the aircraft. SAA then delayed the flight to the original December 22, 2016 departure date (subsequent schedule change).

PRELIMINARY MATTER

[7] Ms. Hussein requests compensation for time lost as a result of the schedule changes.

[8] The Agency does not compensate for pain and suffering or loss of enjoyment, as consistently stated in previous decisions such as Decision No. 18-C-A-2015 and Decision No. 55-C-A-2014.

[9] Therefore, the Agency will not consider this issue.

THE LAW

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

Issue 1: Did SAA properly apply the terms and conditions of carriage set out in its Tariff, which incorporates by reference the Montreal Convention, concerning the liability of the carrier respecting schedule changes, as required by subsection 110(4) of the ATR?

POSITIONS OF THE PARTIES

Ms. Hussein’s position

[11] Ms. Hussein submits that she incurred expenses for transportation and accommodation arrangements that she had to cancel as a result of the schedule changes. With respect to the first schedule change, Ms. Hussein states that SAA offered no compensation, nor did it offer any rerouting that would have allowed her to travel as originally scheduled, and, hence, to keep her reservations and commitments in Jeddah. Ms. Hussein adds that “We [sic] only offered two options either accepting the new date or cancel the booking. So we accepted the 21 of December […].”

[12] With respect to the subsequent schedule change, Ms. Hussein states that after checking her baggage and boarding Flight SV060, the flight was rescheduled to December 22, 2016. Ms. Hussein adds that, as a result, she once again lost her prepaid pick-up and hotel accommodations, which she had to re-book a third time at last-minute prices.

SAA’s position

[13] SAA submits that the original December 22, 2016 flight had to be advanced in order to accommodate network-wide schedule changes. SAA refers to Rule 2 of its Tariff, which states in part that a passenger may accept a schedule change that occurs prior to departure; or alternatively, the passenger may cancel or have the ticket reissued in accordance with applicable tariffs, without incurring a penalty.

[14] According to SAA, Ms. Hussein confirmed the first schedule change, and made no request to cancel the original booking, nor did she request that alternate arrangements be made. SAA further refers the Agency to Rule 85 of its Tariff, which provides that times shown on a ticket are not guaranteed and do not form part of the contract of carriage.

[15] With respect to the subsequent schedule change, SAA states that after the aircraft arrived in Toronto on December 21, 2016, an airside service vehicle made contact with the aircraft. As a result, the flight was pushed back to its originally scheduled December 22, 2016 departure date, in order to allow an inspection of the aircraft to ensure its airworthiness and safe release back into service. SAA submits that it then provided the inconvenienced passengers with meals, transportation, and hotel accommodations.

[16] SAA refers the Agency to Rule 85 of its Tariff, which states in part that it may cancel flights if required by matters beyond its control, including matters which SAA could not foresee or anticipate. SAA submits that this provision is just and reasonable, given the dynamic nature of international air travel. According to SAA, the situation leading to the subsequent schedule change was beyond its reasonable control and, furthermore, it could not have anticipated the incident. SAA therefore maintains that the subsequent schedule change was permissible pursuant to its Tariff, and, therefore, should not form the basis of any compensation owed to Ms. Hussein.

[17] SAA also refers the Agency to Article 19 of the Montreal Convention, which states that a carrier is not liable for damages 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. SAA argues that it took all measures reasonably required to avoid the subsequent schedule change in accordance with Article 19 of the Montreal Convention, or alternatively, that such change was within the confines of Rule 85 of its Tariff.

[18] SAA notes that the flight departed on December 22, 2016, and that Ms. Hussein and her children arrived in Jeddah on the following day – the same day which the original itinerary provided for.

Findings of fact

[19] SAA acknowledges that on two occasions, it rescheduled Flight SV060. With respect to the first schedule change, Ms. Hussein states that, based on the options provided, she accepted the advancement of her flight. This is confirmed by SAA.

[20] SAA states that the subsequent schedule change was the result of an airside service vehicle making contact with the aircraft and, as a result, the flight was delayed in order to ensure the airworthiness of the aircraft. Neither party made submissions concerning whether SAA offered Ms. Hussein any other options that would allow her to travel that day, other than awaiting the aircraft’s airworthiness.

[21] Based on the above, the Agency finds that Flight SV060 was rescheduled on two separate occasions. The Agency finds that Ms. Hussein accepted the first rescheduling. The Agency however finds that Ms. Hussein had no other choice but to accept the subsequent rescheduling, as she was not provided with any additional options, other than to await the airworthiness of the aircraft.

ANALYSIS AND DETERMINATION

Did SAA properly apply the terms and conditions of carriage set out in its Tariff, which incorporates by reference the Montreal Convention, concerning the liability of the carrier respecting schedule changes, as required by subsection 110(4) of the ATR?

[22] When an application is filed with the Agency, the applicant must, on a balance of probabilities, establish that the air carrier has failed to apply the terms and conditions of carriage set out in the applicable tariff.

[23] Ms. Hussein states that as a result of both schedule changes, she incurred the following expenses:

  1. Approximately CAN$150 for non-refundable, pre-arranged pick-up in Jeddah due to the advancement of her flight to December 21, 2016;
  2. CAN $230 cancelation fee for hotel accommodations due to the advancement of her flight to December 21, 2016;
  3. CAN $150 for non-refundable, pre-arranged pick-up in Jeddah as a result of the delay of her flight until December 22, 2016;
  4. CAN $460 for the loss of booked hotel accommodations as a result of the delay of her flight until December 22, 2016; and
  5. Compensation for lost time of an unspecified amount.

First schedule change

[24] Rule 2(iii) of SAA’s Tariff states that if, after issuance of the ticket, schedule changes by the carrier(s) create alterations to the ticketed itinerary which are unacceptable to the passenger, the passenger may cancel or have the ticket reissued in accordance with applicable tariffs, without incurring a penalty.

[25] With respect to schedule changes, Rule 85(A) states in part that schedules are not guaranteed and form no part of the contract of carriage.

[26] On the issue of the first schedule change, the Agency notes that Ms. Hussein was provided with over three weeks’ notice that her flight date was advanced. Furthermore, Ms. Hussein acknowledges that she was provided with the options of either accepting the schedule change or cancelling the reservation. Ms. Hussein confirms that she chose the former option, which is confirmed by SAA.

[27] In light of the above, the Agency finds that SAA properly applied Rules 2(iii) and 85(A) of its Tariff and that, as such, Ms. Hussein is not entitled to compensation for damages resulting from the first schedule change.

Subsequent schedule change

[28] According to Rule 85(B)(2) of SAA’s Tariff, SAA may delay flights if required by matters beyond its control, including matters SAA could not foresee or anticipate. SAA maintains that the airside service vehicle’s contact with the aircraft was beyond its control and that it could not have anticipated that occurrence.

[29] SAA’s Tariff is subject to the Montreal Convention, as recognized by Rule 5(B)(4) of the Tariff, which states that the Tariff fully incorporates the liability rules set out in the Montreal Convention and that those rules supersede and prevail over any inconsistent provisions of the Tariff.

[30] Article 19 of the Montreal Convention provides that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo, unless it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage occasioned by the delay, or that it was impossible for it or them to take such measures.

[31] The Agency notes SAA’s submission that it provided passengers with meals, transportation and hotel accommodations as a result of the delay. However, SAA provides no submissions concerning any further efforts it undertook to avoid the damage occasioned by the delay, including efforts to enable the passengers on Flight SV060 to arrive at their destination as per their itineraries. For example, SAA does not indicate whether it made efforts to carry the passengers on another of its passenger aircraft or the aircraft of another carrier. SAA provides no submissions on whether such measures would have been reasonable or impossible for it to take.

[32] Based on the above, the Agency finds that SAA has not discharged its burden to prove that it took all measures that could reasonably be required to avoid the damage occasioned by the delay, or that it was impossible for it to take such measures. SAA is therefore liable for expenses incurred by Ms. Hussein as a result of the delay.

Issue 2: If SAA did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Hussein?

Ms. Hussein’s position

[33] In terms of compensation for damage occasioned by the flight delay, Ms. Hussein seeks CAN$150 for non-refundable, pre‑arranged pick-up in Jeddah, and CAN$460 for the loss of previously booked hotel accommodations.

[34] Ms. Hussein states that she has no proof of these expenses, as receipts are not commonly issued in Jeddah and credit cards are not widely used.

SAA’s position

[35] SAA refers the Agency to Article 29 of the Montreal Convention, which provides that any punitive, exemplary or any other non-compensatory damages shall not be recoverable. SAA argues that Ms. Hussein has not provided any evidence that she or her daughters suffered compensable losses as a result of the schedule change and, as such, there is no basis upon which a fair, objective and justiciable award may be rendered, if compensation is owed.

[36] SAA further argues that if, for example, as a result of the subsequent schedule change, Ms. Hussein and her daughters lost the benefit of planned accommodations at the destination for one night, such damages are reasonably offset by SAA having provided food and accommodation for travelers in Toronto.

ANALYSIS AND DETERMINATIONS

If SAA did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Ms. Hussein?

[37] The Agency disagrees with SAA’s submission that the expenses incurred by Ms. Hussein as a result of the flight delay are offset by SAA having provided food and accommodations in Toronto. While the provision of food and accommodation in Toronto may mitigate the expenses claimed by Ms. Hussein as a result of the flight delay, it does not relieve SAA from liability for the additional expenses she incurred. The Agency therefore finds that SAA is liable for the expenses incurred by Ms. Hussein as a result of the flight delay.

[38] In Decision No. 308-C-A-2010, the Agency noted that Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase. According to that Decision, other methods such as a sworn affidavit, a declaration or the inherent reasonableness of the expenses claimed could, in some cases, assist in determining the validity of a claim. The Agency finds the value of the amount claimed by Ms. Hussein to be inherently reasonable and therefore acceptable in the present circumstances.

ORDER

[39] Pursuant to paragraph 113.1(b) of the ATR, the Agency orders SAA to compensate Ms. Hussein, by no later than November 20, 2017, in the amount of CAN$610, which accounts for the transportation and accommodation costs that she incurred as a result of the delay of the December 21, 2016 flight.


APPENDIX

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.

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

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.

Article 29 – Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

Saudi Arabian Airlines Corporation, carrying on business as Saudi Arabian Airlines' International Passenger Rules and Fares Tariff, NTA(A) No. 324

Rule 2 STANDARD FORMAT OF ELECTRONIC RULES

[…]          

PENALTIES […]

2. Advance Purchase of Fares

a. Prior to Departure

  1. In the event of cancellation by the passenger or failure to use confirmed space as ticketed prior to or at departure for any reason, except as provided in (ii) and (iii) below, a portion of the fare will be deemed non-refundable and will be forfeited by the passenger. The applicable non-refundable amount will be specified in each advance purchase/advance purchase excursion rule.
  2. Full refund will be made in the event of:(aa) death or illness of the prospective passenger or a member of the passenger's immediate family (attested to by an appropriate certificate);(bb) an increase in the advance purchase fare after a ticket has been issued, and the passenger desires to cancel.
  3. If, after issuance of the ticket, schedule changes by the carrier(s) create alterations to the ticketed itinerary which are unacceptable to the passenger, the passenger may cancel or have the ticket reissued in accordance with applicable tariffs, without incurring a penalty.

Rule 55 LIABILITY OF CARRIERS PART A

[…]

B. LAWS AND PROVISIONS APPLICABLE […]

4.  […] For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in 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 85 SCHEDULES, DELAYS AND CANCELLATIONS

A. SCHEDULES

The times shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice and the carrier assumes no responsibility for making connections. Carrier will not be responsible for errors or omissions either in timetables or other representations of schedules. No employee, agent or representative of the carrier is authorized to bind carrier as to the dates or times of departure or arrival or of operation of any flight.

B. CANCELLATIONS

  1. Carrier may, without notice, substitute alternate carriers or aircraft.
  2. 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 to do so:

a. Because of any fact beyond its control (including but without limitation, meteorological conditions, acts of God, force majeure, strikes, riots, civil commotions, embargoes, wars, hostilities, disturbances, or unsettled international conditions) actual, threatened or reported or because of delay demand conditions circumstance or requirement due, directly or indirectly, to such fact; or

b. Because of any fact not foreseen, anticipated or predicted, or

[…]

Member(s)

Stephen Campbell
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