Upon retrieving her baggage after a domestic flight from Toronto to Winnipeg, Ms. Kipper noticed that it was dented, and reported this to WestJet’s baggage service desk. She was told that WestJet was not responsible for “normal wear and tear.” Ms. Kipper complained to the Canadian Transportation Agency (CTA), which issued its decision on July 21, 2010 finding WestJet liable for the damage to the luggage. In keeping with a recent series of decisions that may broaden the scope of liability of air carriers, the CTA confirmed that air carriers are liable for loss or damage to baggage, unless the damage was caused by an inherent defect, quality or vice of the baggage.
WestJet relied on its “Baggage Information” sheet (given to Ms. Kipper by WestJet staff), which excluded liability for “normal wear and tear”. These exclusions also appear on the carrier’s website in a section on damaged baggage. However, no information regarding “normal wear and tear”, or exemption from liability for this type of damage, was included in WestJet’s contract of carriage (contained in its tariff).
Ms. Kipper argued that the airline applied terms and conditions which did not appear in its tariff, contrary to s. 67(3) of the Canada Transportation Act. Secondly, she submitted that to be exempt from liability for damage to baggage, there must be a causal relationship between the damage to the baggage and an inherent defect, quality or vice of the baggage.
WestJet acknowledged that the terms and conditions used in its “Baggage Information” sheet should also be contained in the tariff, and proposed to change its tariff to include an exclusion from liability for “normal wear and tear”. WestJet also proposed to draft a definition of “normal wear and tear” which would include some examples but be broad enough to allow for the application of common sense. Where disagreement arose, could be decided by the CTA or a Court. WestJet pointed out that the loading and unloading of baggage is carried out by many different stakeholders, in addition to WestJet staff. As a result, it would be “at best unreasonable” to hold WestJet liable for “normal wear and tear” incurred as baggage passes through this complex system.
The CTA ruled that WestJet had in fact breached s. 67(3) of the Act by relying upon the conditions appearing in its “Baggage Information” sheet, as they were not set out in its tariff. The CTA also applied to domestic carriage the principle under the Montreal Convention (which governs international carriage) that a carrier may only escape liability for damage to baggage where the damage was causally associated with an inherent defect, quality or vice of the baggage. The CTA found that the statements on the WestJet “Baggage Information” sheet failed to respect this principle.
Since Ms. Kipper’s baggage was in the care and control of WestJet when it was damaged, and given that WestJet had not provided any evidence that the damage was caused by an inherent defect, quality or vice of the baggage, the CTA held that WestJet was responsible for the damage, up to the maximum amount of $250, as stipulated in its tariff. Of note, the CTA has subsequently held that the limit of $250 is unreasonably low and has directed WestJet to propose a higher limit.
Tags: baggage, Canada Transportation Act, Canadian Transportation Agency, CTA, loss or damage to baggage, Montreal Convention, scope of liability, tariff, wear and tear, WestJet
