Decision No. 3-C-A-2018

January 12, 2018

APPLICATION by Rajiv Sharma against Jet Airways (India) Limited (Jet Airways).

Case number: 
17-04546

SUMMARY

[1] Rajiv Sharma filed an application with the Canadian Transportation Agency (Agency) against Jet Airways regarding the loss of a gold necklace and gold earrings (gold jewelry) from his checked baggage while travelling from Delhi, India to Toronto, Ontario, Canada on November 8, 2016.

[2] Mr. Sharma is seeking reimbursement in the amount of CAN$6,020 plus tax for the value of the lost gold jewelry from his checked baggage.

[3] The Agency will address the following issue:

Did Jet Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), by not compensating Mr. Sharma as required by Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Jet Airways did not properly apply its Tariff, what remedy, if any, is available to Mr. Sharma?

[4] 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 and orders Jet Airways to compensate Mr. Ahmad in the amount of CAN$2,056.56. Jet Airways is to pay this amount to Mr. Ahmad as soon as possible and no later than February 23, 2018.

BACKGROUND

[5] Mr. Sharma travelled with Jet Airways on November 8, 2016 from Delhi to Toronto. Upon his arrival at the Toronto Pearson International Airport (Pearson Airport), Mr. Sharma noticed damage to his baggage and reported it to Jet Airways. Mr. Sharma was informed by Jet Airways that it would pay for the cost of replacing his damaged baggage, which it did.

[6] In addition, when Mr. Sharma returned home, he noticed that gold jewelry was missing from his checked baggage.

[7] On November 10, 2016, Mr. Sharma e-mailed Jet Airways’ staff informing them of the missing items from his baggage.

[8] On November 11, 2016, Jet Airways e-mailed Mr. Sharma stating that once the passenger leaves the arrivals area of the airport, the airline is no longer able to accept any claims.

THE LAW

[9] 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.

[10] 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.

[11] Rule 55(C)(6) of Jet Airways’ Tariff states:

9W is not liable for loss, damage to, or delay in the delivery of fragile or perishable articles, money, jewelry, silverware, negotiable instruments, securities, business documents, government licenses or other valuables (whether having cash value or value specific to passenger only), that may be included or contained in the checked-in baggage, whether with or without the knowledge of 9W. Passengers are advised to keep all such valuables in their hand baggage, to take adequate care of such valuables and to obtain appropriate insurance to cover any loss.

[12] Rule 55(C)(14) of Jet Airways’ Tariff states:

9W may disallow any claim for loss or damage with contains misrepresentations or false statements. 9W may also disallow claims where the passenger fails to provide proof of loss in the form of receipts of purchase or other such reliable documentary evidence. It is however clarified that 9W shall not be liable beyond the limits or its liability as per applicable Conventions and laws.

[13] Rule 55(C)(18) of Jet Airways’ Tariff incorporates the Montreal Convention and states 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.

[14] Rule 55(D)(1) of Jet Airways’ Tariff states:

[…] in the case of delay, or loss, complaint must be made at the latest within 21 days from the date on which the baggage has been placed at his disposal (in the case of delay), or should have been placed at his disposal (in the case of loss). Every complaint must be made in writing and dispatched within the time aforesaid. […].

[15] Article 17(2) of the Montreal Convention sets out the carrier’s liability in case of destruction, loss of, or damage to checked 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. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

[16] Article 22(2) of the Montreal Convention sets out the carrier’s limits of liability in relation to loss, delay, destruction, or damage to 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.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Mr. Sharma’s position

[17] Mr. Sharma states that when he returned home he realized that the gold jewelry was missing from his baggage.

[18] On November 10, 2016, Mr. Sharma e-mailed Jet Airways’ staff informing them of the missing items from his baggage.

[19] Mr. Sharma submitted his original receipt for the gold jewelry that he purchased in India on January 19, 1998, for a total of 46,250 Indian Rupees.

[20] Mr. Sharma states that he purchased 96.33 grams of gold, as shown on the receipt, and that the price of gold on October 10, 2017 was CAN$62.50/gram. He is therefore seeking the amount of CAN$6,020 plus tax.

Jet Airways’ position

[21] Jet Airways argues that it does not assume liability and will not compensate passengers for the loss of items from their checked baggage unless they declare the item at the time of check in and additional insurance coverage is purchased by the passenger.

[22] Jet Airways states that Mr. Sharma did not report any irregularities to Jet Airways’ staff at the airport and submits that reporting the incident at the airport allows it to do a detailed investigation into the incident.

Findings of Fact

[23] It is uncontested by Jet Airways that the gold jewelry purchased on January 19, 1998 was missing from Mr. Sharma’s baggage and that the loss of the gold jewelry took place while the baggage was under its care and control after it had been checked in by Mr. Sharma on November 8, 2016. It is also uncontested by Jet Airways that Mr. Sharma e-mailed Jet Airways on November 10, 2016, informing it of the missing items.

ANALYSIS AND DETERMINATIONS

[24] 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.

[25] Rule 55(C)(18) of the Tariff incorporates by reference the liability rules set out in the Montreal Convention, which governs a carrier’s liability for lost and damaged 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. Furthermore, Rule 55(C)(18) of the Tariff states that the Montreal Convention shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

[26] Given that Mr. Sharma’s bag was under the care and control of Jet Airways when the gold jewelry was lost, the Agency finds that Jet Airways is liable under Article 17(2) of the Montreal Convention for the loss of the gold jewelry from Mr. Sharma’s baggage.

[27] Jet Airways argues that Mr. Sharma did not inform the agent at check in that his baggage contained gold jewelry. It also argues that, as Mr. Sharma did not report the lost jewelry at the airport before leaving, Jet Airways assumes no liability.

[28] As per Rule No. 55(D)(1) of Jet Airways’ Tariff, in the case of delay or loss, a complaint must be made at the latest within 21 days and every complaint must be made in writing. The Agency finds that, as Mr. Sharma informed Jet Airways of his missing gold jewelry through e-mail on November 10, 2016, two days after arriving, he satisfied this requirement.

[29] The Agency notes that 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. While the production of original receipts of purchase will generally support proof of loss, circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate.

[30] Mr. Sharma is seeking compensation in the amount of CAN$6,020 plus tax for the gold jewelry missing from his baggage. Specifically, Mr. Sharma states that he purchased 96.330 grams of gold and that the price of gold on the day he submitted his application to the Agency was CAN$62.50/gram. Nevertheless, the Agency finds that this is not an appropriate method to determine the amount of compensation to which Mr. Sharma is entitled. Mr. Sharma’s gold jewelry was lost on November 8, 2016. The Agency has determined that the closing price of gold, on the day that the jewellery was lost, was approximately CAN$54.44/gram. The Agency therefore finds that Mr. Sharma’s lost gold jewelry is worth approximately CAN$5,244.20.

[31] Based on the above, the Agency finds that Jet Airways, in not compensating Mr. Sharma for the gold jewelry missing form his baggage, failed to apply the terms and conditions set out in Rule 55(C)(18) of its Tariff, which incorporates the Montreal Convention by reference, and has therefore contravened subsection 110(4) of the ATR.

[32] Article 22(2) of the Montreal Convention limits the liability of the carrier in the case of destruction, loss, damage or delay of baggage to 1,131 Special Drawing Rights for each passenger (the equivalent of CAN$2,056.56), unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest and has paid a supplementary sum if the case so requires.

[33] The Agency notes that this limit is less than the value of the gold jewelry that Mr. Sharma lost. The Agency finds that in light of the original receipt provided by Mr. Sharma, and given that the value of the gold jewelry lost exceeds the limit set out in the Montreal Convention, it is appropriate in this circumstance to award Mr. Sharma the maximum amount of compensation provided for under the Montreal Convention, i.e. CAN$2,056.56.

ORDER

[34] Pursuant to section 113.1 of the ATR, the Agency orders Jet Airways to compensate Mr. Sharma in the amount of CAN $2,056.56. Jet Airways is to pay this amount to Mr. Sharma as soon as possible and no later than February 23, 2018.

Member(s)

Sam Barone
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