Gábor Lukács is well known to many air carriers operating in Canada as a passenger rights activist. He is an academic who, over the past few years, has filed numerous complaints with the Canadian Transportation Agency (CTA) against air carriers on tariff-related issues.
Two of Lukács's recent complaints, brought against United Airlines, were adjudicated in May 2012.(1)
The first relates to an incident that occurred in March 2011 when Lukács travelled from Winnipeg to Savannah, Georgia with United. On arrival at Savannah, Lukács discovered that his name tag was missing from his suitcase. When he attempted to complete a damage report, he was referred by a United check-in agent to a sign which stated that United does not assume liability for "normal wear and tear" (which was defined as including, among other things, "damage or loss to protruding baggage parts").
After being advised by the United check-in agent that he was ineligible to file a damage report, Lukács spoke to a supervisor, who completed a report and was alleged to have advised Lukács that he would be contacted in relation to the incident.
United did not contact Lukács, although it did compensate him for the damage through an informal dispute resolution process facilitated by the CTA.
Nevertheless, Lukács complained to the CTA that certain information posted by United relating to delayed and damaged baggage was inconsistent with the Montreal Convention and, Lukács argued, contrary to Section 18(b) of the Air Transportation Regulations, which provides that licensees "shall not make publicly any statement that is false or misleading with respect to the licensee's air service or any service incidental thereto".
More specifically, Lukács alleged that the exclusion of liability for normal wear and tear was contrary to Article 17(2) of the Montreal Convention, which may be said to impose such liability in respect of such damage.
With respect to the defence of inherent defect, he cited McCabe v Air Canada (CTA Decision 227-C-A-2008), Lukács v Air Canada (CTA Decision 208-C-A-2009) and Lukács v WestJet (CTA Decision 477-C-A-2009) for the proposition that in order for a carrier to be exempt from liability for damage to baggage under Article 17(2) of the Montreal Convention, there must be a causal relationship between the damage and an inherent defect, quality or vice of the baggage.
Lukács's complaint was directed towards:
- the signage at United's airport check-in counters;
- United's 'Delayed and damaged baggage' web page on its Canadian website; and
- United's policy as reflected in its Bulletin B11-05.
With regard to the airport signage, United filed submissions indicating that the language complained of was no longer in place at its check-in counters.
However, in response to this assertion, Lukács produced a photograph taken after United's submissions were filed demonstrating that the offending sign was still in at least one airport.
United explained that the situation at the Winnipeg airport occurred inadvertently. It undertook to canvass its stations to ensure that any such signage was removed.
Lukács challenged the assertion that the signs remained in place due to inadvertence. In support of this allegation, he filed an audio recording of a telephone conversation that he had with a United baggage agent, which purportedly took place approximately one month after United advised that it was attempting to correct the error. In that conversation, the agent advised Lukács that United was not responsible for normal wear and tear to checked baggage. In its responding submissions, United explained that information provided by baggage agents is general in nature and applies without regard to the passenger's itinerary.
Based on the preceding facts, the CTA found that United had displayed signage at the airport counter in Winnipeg that was misleading in that it misstated United's liability for baggage as set out in Article 17(2) of the Montreal Convention. However, the CTA accepted that at the time of rendering its decision, the signs had been removed and, as such, no further action was contemplated on this portion of the complaint.
Insofar as the Canadian website was concerned, Lukács alleged that the web page on that website also misleadingly provided that United was not responsible for normal wear and tear to checked baggage, even though he was unable to find language supporting this policy in United's tariff.
As a result, United agreed to amend the website to state the following:
Baggage is designed to protect the contents. Normal wear and tear such as scratches, nicks or dirt may appear despite care in handling, especially of your bag is over-sized or over-packed.
Damages should be reported to and resolved by the individual United Baggage Services Office at the airport location where the damage was discovered. If this is not possible, please direct your report and claim to our airport staff at the location nearest you within 24 hours. We will need a copy of your ticket and claim check and will make a visual inspection of the damage."
Lukács argued that these proposed amendments did not address the problem adequately.
With respect to the first paragraph, he argued that the language remained misleading. First, he submitted that the Montreal Convention does not distinguish between baggage and its contents, and to do so on the website provides the reader with the false impression that baggage is treated differently from what it contains. Second, Lukács argued that the way in which this paragraph was drafted suggested that normal wear and tear is a common and acceptable phenomenon – and, since this provision appeared under the heading 'Damage claim', it left the impression that such damage is not compensable.
With respect to the second paragraph of the proposed website amendment, Lukács argued that this language purported to impose a 24-hour time limit on the notification of damage to checked baggage – and that a notice period of that duration contradicts United's obligations under Article 31 of the Montreal Convention, which prescribes a seven-day notice period. Accordingly, he argued that this provision was also misleading, and therefore contrary to Section 18(b) of the Air Transportation Regulations.
The CTA accepted Lukács' arguments with respect to both paragraphs of the proposed amended policy for the Canadian website and, as a result, did not approve of the proposed language.
The CTA then considered United's revised international-specific baggage liability policy, which became effective after the complaint was launched. This policy advised United personnel that stations could no longer deny a claim for damaged baggage based on the concept of normal wear and tear.
Lukács submitted that despite implementing this policy, United was failing to comply with it. In support of this allegation, he filed an audio recording of a discussion that he had had with a United baggage agent, which allegedly occurred three months after the policy implementation date. In this conversation, a United agent advised Lukács over the telephone that United would not provide compensation for normal wear and tear to checked baggage.
As a result of hearing this from the United baggage agent, Lukács alleged that United had failed to distribute the bulletin giving effect to the policy to its baggage agents.
In response, United filed proof that the bulletin had been distributed to its staff by email, and that it had sent a further advisory to its agents after becoming aware of the telephone call with Lukács.
The CTA reviewed the contents of the bulletin and confirmed that it accurately reflected United's obligations to passengers on routes governed by the Montreal Convention insofar as the issue of normal wear and tear was concerned. However, the CTA noted (disapprovingly) that the bulletin was silent on the time that a passenger has to file a complaint about such damage.
The CTA then went on to consider whether United had applied a policy governing baggage liability that did not appear in its tariff.
In this regard, Lukács argued that since the limitation of liability for normal wear and tear appeared on the United website but not the tariff – and since Lukács's complaint was handled in a manner consistent with the website policy – United had disregarded its own tariff in assessing his claim.
The CTA agreed and found that in doing so, United had contravened Sections 122(c)(x) and (xi) of the Air Transportation Regulations.
As a consequence of the above findings, United was ordered, within 30 days, to:
- file amendments to its tariff that clearly reflect its policy respecting limits to and exclusions from liability relating to baggage, as set out in the bulletin and that also reflect the time limits within which the complaint must be filed pursuant to Article 31 of the Montreal Convention; and
- ensure that the bulletin and United's Canadian website reflect the findings made by the CTA and remove any language that is contrary to same.
In a separate complaint, Lukács sought an order from the CTA requiring United to remove the language similar to that which had been previously posted on the Canadian website from United's global website.
In that proceeding, United argued that the matter had been rendered moot by the fact that the changes had been applied to its global website as a result of United's integration with Continental Airlines. While the new global website still provides that United is not liable for normal wear and tear, this limitation of liability is now specifically limited to domestic travel within the United States. In addition, the global website now states that claims for damaged baggage for international flights must be reported within seven days.
In reply submissions, Lukács argued that although the new website was a "substantial improvement" on the previous version, he objected to a new statement on the global site that requires passengers to obtain prior approval through United's Baggage Resolution Service Centre in order for expenses to be reimbursed.
Lukács alleged in the complaint that the requirement to obtain such prior approval also contradicted United's obligations under the Montreal Convention.
In reviewing the matter, the CTA found that in light of the changes that were undertaken in the integrated United/Continental website, the subject matter of the complaint had been rendered moot and, as a result, the complaint was dismissed.
With respect to the new allegation pertaining to the requirement that passengers obtain prior approval for any expenses arising from delayed or damaged baggage, the CTA held that this was an entirely new issue, and therefore would not be considered as part of the original complaint.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).
(1) Lukács v United Airlines Inc CTA Decision 182-C-A-2012 and CTA Decision 200-C-A-2012.