Timing is Everything: Airline Not Liable to Passengers Who Filed Late Baggage Complaint

On March 1, 2019, Mr. and Mrs. Olak (the “Passengers”) travelled on an Air Canada flight from Vancouver to Delhi, India.  Upon their arrival in India, the Passengers’ checked bags were missing.  The Passengers sued the airline in the BC Civil Resolution Tribunal (“CRT”) and sought damages to compensate them for clothing and other necessities that they were forced to purchase because their bags were delayed.  The Passengers also sought “non-material damages”.

The Passengers, who were travelling with a total of four checked bags, arrived in Delhi on March 2, 2019.  They alleged that they received three of their bags on March 10, 2019, and that they did not receive the fourth bag until March 20, 2019.  The fourth bag had arrived in Jalandhar, India on March 15, 2019, and was collected by family members, but the Passengers left earlier that day to travel to Delhi.  The Passengers argued that they did not have possession of the fourth bag until March 20, 2019, when they returned to Jalandhar.

The airline argued that the Passengers’ claims were time-barred by operation of the Montreal Convention.  The Montreal Convention is an international treaty that applies to all international air carriage of persons, baggage, and cargo.  The Montreal Convention limits the scope and type of claims that a passenger can make against a carrier.

Article 31 of the Montreal Convention requires passengers to complain to the airline, in writing, within 21 days of their baggage being “placed at their disposal”, otherwise “no action shall lie against the carrier”.

The CRT found that the Passengers’ family members were acting on their behalf when they collected the fourth bag from the airline’s contractor on March 15, 2019.  At the time the fourth bag was collected, it was no longer in the possession of the airline or its contractors and the airline’s responsibility for the bag was discharged.

The CRT looked at the Merriam Webster dictionary, which defines the phrase “at someone’s disposal” as “available for someone to use”.  The CRT ruled that the fourth bag was available for the Passengers to use once their family members collected it in Jalandhar on March 15, 2019, even though the Passengers had travelled to Delhi earlier that day.  The CRT found that if it were to interpret “disposal” as requiring actual possession of baggage, then passengers could have an agent collect and hold baggage for an indefinite period, and then claim increased compensable expenses.

As a result, the CRT held that the 21-day time limit to make a written complaint began on March 15, 2019 and expired on April 5, 2019.  The Passengers made a written baggage complaint to the airline on April 6, 2019 at 1:50 a.m. Eastern Time.

The CRT determined that the most appropriate time zone to be used to establish the date of complaint was that of the location where the time began running (in this case, India).  It was April 6, 2019 in India when the Passengers filed their written complaint to the airline.  The CRT ruled that the Passengers did not submit their complaint within 21 days as required by Article 31 of the Montreal Convention.  As a result, they had no right of action against the airline.

The CRT also decided that the Passengers had failed to provide sufficient proof of their expenses as they submitted no receipts.  The CRT also determined that the Montreal Convention does not permit claims for inconvenience or mental distress and denied the claim for “non-material damages”.  The claim was dismissed.

This case confirms and provides a reminder of the longstanding principle that the time limitation provisions of the Montreal Convention are to be interpreted strictly by courts.

For more information, please contact a member of our Aviation Group.

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