Decision No. 36-C-A-2018

May 11, 2018

APPLICATION by Christophe Scordo against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada).

Case number: 
17-05454

SUMMARY

[1] Christophe Scordo filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the loss of his checked baggage following a flight from Brussels, Belgium, to Toronto, Ontario, via Milan, Italy, on July 5, 2017.

[2] Mr. Scordo is requesting the maximum compensation of 1,131 Special Drawing Rights set out in 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.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), 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)? If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Scordo?

[4] For the reasons set out below, the Agency finds that Air Canada did not properly apply the terms and conditions set out in Rules 60(A)(5) and 105(C)(1)(b) of its Tariff. Consequently, the Agency orders Air Canada to pay Mr. Scordo compensation in the amount of CAN$1,811.76, from which the amount already paid to Mr. Scordo will be deducted. Air Canada must pay this amount to Mr. Scordo as soon as possible, and no later than June 26, 2018.

BACKGROUND

[5] Upon arrival at the Lester B. Pearson International Airport in Toronto (Toronto airport) on July 5, 2017, Mr. Scordo did not find his checked baggage.

[6] Mr. Scordo indicates that his baggage did not arrive at the Toronto airport and that he submitted a Missing Baggage Declaration to Air Canada in accordance with the Montreal Convention. Mr. Scordo’s baggage was eventually located, and Air Canada returned it to him on July 30, 2017.

THE LAW

[7] 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.

[8] 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.

[9] Rule 60(A)(5)(b) of Air Canada’s Tariff provides in part as follows:

Collection and Delivery of baggage

Checked baggage will be delivered to the bearer of the baggage check upon payment of all unpaid sums due to carrier under contract of carriage or tariff.

Only the passenger for whom a baggage identification tag was issued may take possession of the baggage. Carrier may, but is under no obligation to do so, require satisfactory proof that the baggage belongs to the passenger in question before delivering the baggage to the passenger.

Acceptance of the baggage without complaint, within the time limits stipulated in Rule 105(E), by the passenger in possession of the baggage identification tag is prima facie evidence that the carrier delivered the baggage in good condition in accordance with this tariff.

[10] Rule 105(C)(1)(b) of Air Canada’s Tariff provides in part as follows:

  1. Where the Montreal Convention applies, the limits of liability are as follows:

[…]

b. In respect of destruction, loss of, or damage or delay to baggage, 1,131 Special Drawing Rights […] per passenger in most cases.

[…]

[11] Articles 17(2) and 17(3) of the Montreal Convention set out the carrier’s liability in case of destruction, loss of, or damage to checked baggage as follows:

2. 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. […]

3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

[12] Article 22(2) of the Montreal Convention sets out the limits of liability in relation to delays, 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.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Mr. Scordo’s position

[13] Mr. Scordo claims that his baggage was missing when he arrived at the Toronto airport on July 5, 2017, and that when he asked Air Canada staff for a Missing Baggage Declaration he was told to make the request on the Air Canada website. Mr. Scordo indicates that a Delayed Baggage File was opened and that during his stay in Canada, from July 5 to 12, 2017, he received no information concerning his baggage. Mr. Scordo adds that he called Air Canada every day that he was in Canada.

[14] Mr. Scordo claims that all of his personal effects were in his lost baggage. He indicates that it was difficult to enjoy his stay without his personal effects and that he purchased replacement items.

[15] Mr. Scordo claims that, upon returning to Belgium, he called Air Canada every day. He states that, on July 13, 2017, Air Canada informed him that his baggage was in Milan. Mr. Scordo also claims that his baggage was then sent to Toronto and Ottawa before being returned to Toronto. He adds that, on July 14, 2017, his baggage was sent from Toronto to Amsterdam and that, on July 15, 2017, his baggage was lost at the Schiphol Airport in Amsterdam (Amsterdam airport).

[16] Mr. Scordo submits that he completed the Air Canada forms, providing details on the contents of his baggage and the expenses that he incurred as a result of his delayed baggage. Mr. Scordo states that Air Canada told him that he had to wait six weeks before he could obtain additional information. Mr. Scordo adds that he called the Amsterdam, Brussels and Toronto airports as well as the [translation] “railway company” to locate his baggage.

[17] Mr. Scordo states that he received his baggage on July 30, 2017, at 9:51 p.m., that is, 25 days after his expected date of arrival at his destination. In support of his application, Mr. Scordo filed the Brussels airport baggage service document, which confirms receipt of his baggage.

[18] Mr. Scordo also filed a list of items that were in his baggage, the sum of which totalled CAN$1,811.76; receipts for some of the items in his baggage, in the amount of 564.30 euros, 1,523 HKD and US$94.03; and a list of interim expenses in the amount of CAN$246.03.

Air Canada’s position

[19] Air Canada admits that Mr. Scordo received his baggage more than 21 days after his expected date of arrival at destination. However, Air Canada claims that, in a case of delayed or lost baggage, the only compensation to which the passenger is entitled is for damages actually sustained and that these damages must be proven by the best evidence available. Air Canada states that as Mr. Scordo recovered his baggage with all of its contents, he is not entitled to compensation equivalent to the value of the baggage contents.

[20] Air Canada states that it reimbursed Mr. Scordo for his interim expenses. In fact, Air Canada indicates that it sent Mr. Scordo a cheque by registered mail in the amount of 296 euros, that is, 164 euros for the expenses that he incurred when he was not in possession of his baggage and a lump sum of 132 euros for other expenses incurred, with no admission of liability.

[21] It is the opinion of Air Canada that the Agency should dismiss Mr. Scordo’s application.

Mr. Scordo’s reply

[22] Mr. Scordo claims that, as of January 24, 2018, he had not received any compensation or indemnification from Air Canada. He argues that Air Canada did not present any evidence to support this finding. On January 26, 2018, Air Canada filed a copy of a web page that showed the tracking of the delivery of a cheque sent to Mr. Scordo by registered mail.

[23] Mr. Scordo argues that under Article 17 of the Montreal Convention, a delay of more than 21 days in the delivery of a baggage to its owner imposes a legal liability on Air Canada.

Findings of Fact

[24] The Agency notes that Mr. Scordo did not receive his baggage upon his arrival at the Toronto airport on July 5, 2017, and that he received his baggage on July 30, 2017, that is, 25 days after his expected date of arrival at his destination. The Agency also notes that Mr. Scordo’s baggage was located and returned to him as a result of his efforts.

[25] Mr. Scordo completed a Missing Baggage Declaration at the Toronto airport and received a reference number.

ANALYSIS AND DETERMINATIONS

[26] 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.

[27] Pursuant to Article 17(3) of the Montreal Convention, if checked baggage does not arrive at its destination within 21 days following the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage. Although Mr. Scordo’s baggage was eventually located and returned to him by Air Canada, the Agency will consider this to be a claim for lost baggage under Article 17(3) of the Montreal Convention because it was returned more than 21 days after the date on which it ought to have arrived.

[28] Rule 105(C)(1)(b) of Air Canada’s Tariff incorporates the Montreal Convention by reference. Article 17(2) of the Montreal Convention states that 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. Mr. Scordo’s baggage was under the care and control of Air Canada when it was lost. This is shown by the correspondence between Mr. Scordo and Air Canada during the time when Mr. Scordo was trying to locate his baggage. The Agency finds that Air Canada is liable for the loss of Mr. Scordo’s baggage under Article 17(2) of the Montreal Convention.

[29] Consequently, the Agency finds that Mr. Scordo has established, on a balance of probabilities, that Air Canada, by failing to compensate Mr. Scordo for damages caused by the loss of his baggage, did not properly apply the terms and conditions of carriage set out in its Tariff with regard to the liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

[30] Section 113.1 of the ATR provides that 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 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.

[31] Mr. Scordo is requesting compensation of an amount equal to the 1,131 Special Drawing Rights liability limit allowed under Article 22 of the Montreal Convention for damages caused by the loss of his baggage. This amount does not represent the replacement value of the items that were in his baggage when it was lost. In fact, Mr. Scordo filed a list of the items that were in his baggage in support of his application. Mr. Scordo indicated that the total value of these items was CAN$1,811.76.

[32] The Agency notes that Mr. Scordo did not file any receipts to establish the value of all items that were in his baggage when it was under the care and control of Air Canada. However, the Agency finds that the amount claimed, which matches the receipts filed by Mr. Scordo, is sufficient because it does not exceed the limit set under Article 22(2) of the Montreal Convention, that is, 1,131 Special Drawing Rights for each passenger. The Agency finds that the amount of the compensation requested by Mr. Scordo is reasonable.

CONCLUSION

[33] Based on the above, the Agency finds that Air Canada did not properly apply the terms and conditions set out in Rules 60(A)(5) and 105(C)(1)(b) of its Tariff, which incorporates the Montreal Convention by reference with regard to the liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

ORDER

[34] Pursuant to section 113.1 of the ATR, the Agency orders Air Canada to pay to Mr. Scordo compensation in the amount of CAN$1,811.76, from which the amount already paid to Mr. Scordo will be deducted. Air Canada must pay this amount to Mr. Scordo as soon as possible, and no later than June 26, 2018.

Member(s)

P. Paul Fitzgerald
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