Decision No. 92-C-A-2017

September 21, 2017

APPLICATION by Norman Jules Lapierre against Air Canada carrying on business as Air Canada rouge (Air Canada) and United Airlines, Inc., carrying on business as United, as United Airlines, as Continental, as Continental Micronesia and as Air Micronesia (United).

Case number: 
17-02499

SUMMARY

[1] Norman Jules Lapierre filed an application with the Canadian Transportation Agency (Agency) against Air Canada and United with respect to the delay in the delivery of his piece of baggage.

[2] Mr. Lapierre is claiming a reimbursement of $430. Specifically, Mr. Lapierre is claiming a reimbursement of $64 for expenses incurred in Manila, the Philippines, for clothing and necessities that he purchased as a result of the delay in the delivery of his piece of baggage. Mr. Lapierre is also claiming reimbursement for clothing that he purchased in preparation for his trip, in the amount of $366.

[3] The Agency will consider the following issues:

  1. Did United properly apply the terms and conditions set out in Rule 28(D)(1) of its International Passenger Rules and Fares Tariff, NTA(A) No. 361 (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 United did not properly apply the terms and conditions of its Tariff, what remedy, if any, is available to Mr. Lapierre?

[4] For the reasons set out below, the Agency finds that United did not properly apply the conditions set out in Rule 28(D)(1) of its Tariff.

BACKGROUND

[5] On December 4, 2016, Mr. Lapierre was scheduled to take a flight from Montreal, Quebec, Canada to Manila, the Philippines via Chicago, United States of America, and Hong Kong. Air Canada and United were among the carriers on Mr. Lapierre’s itinerary.

[6] The Air Canada flight leaving Montreal was delayed 55 minutes. When Mr. Lapierre arrived in Chicago, his flight to Hong Kong had already departed. While still in Chicago, Mr. Lapierre requested that his piece of baggage be retrieved, and the Air Canada representatives informed him that he had to retrieve it in Los Angeles, United States of America.

[7] Mr. Lapierre finally took a flight from Chicago to Manila via Los Angeles, Honolulu, Hawaii, and Guam. Mr. Lapierre received his piece of baggage on December 10, 2016, the day before his return to Canada.

PRELIMINARY MATTER

[8] The Montreal Convention, as incorporated into the Carriage by Air Act, R.S.C. (1985), c. C-26, applies to Mr. Lapierre’s itinerary, which involved more than one carrier.

[9] Pursuant to article 36(3) of the Montreal Convention, “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.”

[10] However, article 31 of the Montreal Convention stipulates that a complaint or claim must be submitted to the carrier within a prescribed time frame, failing which the carrier is freed from liability. Article 31(4) specifies that, in the absence of a notice of complaint within the time frames stipulated, no action shall lie against the carrier.

[11] In the present case, Air Canada states that it never received a written claim for damages resulting from the delay in Mr. Lapierre’s baggage. Mr. Lapierre does not dispute that statement. Air Canada suggests instead that Mr. Lapierre submitted a written claim to United, which is not disputed by United. Air Canada maintains that the Agency must dismiss Mr. Lapierre’s application.

[12] The Agency agrees that Mr. Lapierre submitted a claim against United. Based on the foregoing findings, the Agency dismisses the application against Air Canada and will consider the application against United.

THE LAW

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 – 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.

Article 31 – Timely Notice of complaints

4. Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

ATR

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

  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.

United’s tariff

Rule 3(D)

International carriage is subject to rules on liability established by the Warsaw Convention and the Montreal Convention, and to all other provisions therein. All provisions of those rules that do not comply with a provision of the applicable Convention, in this measure, but only in this measure, will not apply to international carriage.

Rule 28(D)(1)

The Carrier is liable for damages sustained in the case of destruction or loss of, damage to, or delay of checked and unchecked baggage, as provided in the following paragraphs:

  1. Except as provided below, the liability of the carrier is limited to 1,131 Special Drawing Rights for each passenger in the case of destruction, loss, damage, or delay of baggage, whether checked or unchecked, under the Warsaw Convention or the Montreal Convention, whichever may apply.

POSITIONS OF THE PARTIES

Position of Mr. Lapierre

[13] Mr. Lapierre contends that he checked his piece of baggage with Air Canada at the Montreal Airport for his trip to Manila via Chicago and Hong Kong. Upon his arrival in Chicago, Mr. Lapierre questioned Air Canada staff about his piece of baggage. Mr. Lapierre maintains that Air Canada staff informed him that he could only retrieve it in Los Angeles.

[14] Mr. Lapierre contends that he did not receive his piece of baggage until December 10, 2016, the day before his return flight to Canada.

[15] Mr. Lapierre is claiming a reimbursement for the shorts, vest and necessities that he purchased in the Philippines, in the amount of $64, due to the delay in receiving his piece of baggage. Mr. Lapierre is also claiming a reimbursement for the clothing that he purchased before leaving on his trip, in the amount of $366. He contends that if clothing in his size had been available in the Philippines, he would have incurred those expenses.

Position of United

[16] United asserts that the Agency should dismiss Mr. Lapierre’s application because it is not based on fact or law.

ANALYSIS AND DETERMINATIONS

[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, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[18] An interline trip involves the participation of multiple air carriers indicated on a single ticket purchased in a single transaction. Each carrier’s tariff applies to the segment of the itinerary that the carrier operates.

[19] Alignment with the Agency’s Interline Baggage Rules for Canada, which apply to tickets purchased on or after April 1, 2015, requires that a single set of baggage rules apply throughout a passenger’s interline itinerary appearing on a single ticket, for which the origin or final destination is a point in Canada, regardless of stopovers.

[20] The Agency concludes that United’s tariff applies to Mr. Lapierre’s itinerary.

[21] Rule 3(D) of United’s tariff incorporates the Montreal Convention by reference. Article 19 of the Montreal Convention provides that the carrier is liable for damage occasioned by delay in the carriage by air of baggage unless the carrier proves that it took all measures that could reasonably be required to prevent the damage or that it was impossible for it to take such measures. United did not comment on the measures that it took to prevent the damage. United merely asserted that Mr. Lapierre’s application was not based on fact or law.

[22] Mr. Lapierre is claiming a reimbursement for expenses in the amount of $64 that he incurred as a result of the delay in receiving his piece of baggage and a reimbursement for the clothing that he purchased in preparation for his trip, in the amount of $366.

[23] Article 19 of the Montreal Convention stipulates that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Since Mr. Lapierre’s expenses in the amount of $366 were incurred before his departure, they do not constitute expenses incurred as a result of the delay in receiving his piece of baggage. The Agency cannot grant a reimbursement for those expenses. However, the Agency agrees that the expenses in the amount of $64 incurred by Mr. Lapierre during his trip are attributable to the delay in the delivery of his piece of baggage.

[24] Therefore, the Agency finds that Mr. Lapierre has proved, on a balance of probabilities, that United, by not compensating Mr. Lapierre for the damages incurred due to the delay in the delivery of his piece of baggage, did not correctly apply the conditions of carriage set out in Rule 28(D)(1) of its tariff, pursuant to subsection 110(4) of the ATR.

[25] The Agency therefore finds that Mr. Lapierre is entitled to compensation for the expenses that he incurred as a result of the delay in the delivery of his piece of baggage, namely $64. Although Mr. Lapierre did not provide receipts to support those expenses, they appear reasonable given the amounts claimed and the nature of the items purchased.

[26] The Agency notes that, if the legislation granted it the power to order damages for loss of enjoyment, it would have considered doing so given the specific circumstances of this case and the inconvenience suffered by Mr. Lapierre as a result of the delay in the delivery of his piece of baggage.

ORDER

[27] The Agency, pursuant to paragraph 113.1(b) of the ATR, directs United to pay Mr. Lapierre, by no later than October 20, 2017, compensation in the amount of CAN$64.

Member(s)

P. Paul Fitzgerald
Sam Barone
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