2015 QCCQ 11332, 2015 QCCQ 11332

Stein c. Société Air France 2015 QCCQ 11332 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» No: 500-32-145957-157 DATE: September 25, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ irina stein Plaintiff v.

SOCIÉTÉ air france -and- air france – klm baggage SERVICE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants and amount of $2,000, which was allegedly stolen from a wallet contained in her checked luggage during an Air France flight from Abidjan, Côte d’Ivoire to Montréal. [ 2 ] Société Air France (“ Air France ”) denies liability.

It argues that Plaintiff’s claim must be dismissed because she did not make a written complaint within seven days of receipt of her luggage as required by the Montréal Convention . Air France – KLM Baggage Service is not a legal entity and cannot be sued. FACTUAL CONTEXT [ 3 ] On June 21, 2014, Plaintiff checked her baggage prior to boarding an Air France flight from Abidjan, Côte d’Ivoire to Montréal [1] with her husband and infant son.

This was the return portion of her travel arrangement with Air France, as she flew from Montreal to Paris on May 13, 2014 and on to Abidjan on May 29, 2014. [2] [ 4 ] Plaintiff claims that when she checked her baggage prior to boarding, it contained a wallet with $2,000 in cash, which she had brought to Abidjan as an emergency fund should a problem occur during the family’s vacation. It was not needed and she was returning with it. [ 5 ] Plaintiff received her luggage after landing in Montréal on June 21, 2014.

She claims that she found the $2,000 missing from the wallet when she opened her luggage. [ 6 ] She immediately contacted her travel insurance company to inquire whether her insurance plan covered the loss. When she was advised that it did not, she contacted Air France by telephone on or around June 27, 2014. [ 7 ] She explained the situation to a customer service employee at Air France who advised her that she had to file a complaint online.

The employee made no mention of any delay applicable to the filing of such a complaint. [ 8 ] On June 30, 2014, Plaintiff submitted her complaint online as instructed [3] and immediately received an automatic reply from Air France. [ 9 ] On July 14, 2014, Air France advised Plaintiff that the claim procedure would be completed as quickly as possible and requested that she provide a bank receipt showing the withdrawal of the amounts claimed. [4] [ 10 ] She provided the statement [5] and was further requested on July 22, 2014 to provide an affidavit. [6] A further exchange of emails followed during the course of September 2014. [7] [ 11 ] At no time during her exchanges with Air France representatives was Plaintiff advised that her complaint had been filed too late and would not be considered. [ 12 ] On August 23, 2014, Plaintiff formally requested payment of $2,000 from Air France no later than September 6, 2014. [8] ANALYSIS [ 13 ] Air France’s potential liability towards Plaintiff is governed by the Convention for the unification of certain rules for international carriage by air (the “ Montréal Convention ”), which has been given effect in Canada pursuant to the Carriage by Air

Act . [9] [ 14 ] The Montreal Convention limits the liability of air carriers in international travel for loss of, or damage to, a passenger’s baggage.

It also creates certain presumptions of air carrier liability, subject to specified exceptions. [ 15 ] The Montreal Convention is applicable in the instant case because the place of departure and the place of destination of Plaintiff’s travel agreement are situated within the territory of a signatory state with an agreed stopping place within the territory of another state. [10] [ 16 ] Air France argues that Plaintiff’s claim must be dismissed because she did not submit a written complaint within seven days of receiving her baggage.

Indeed, she received her baggage on June 21, 2014 and filed a written complaint on June 30, 2014, [11] more than seven days later. [ 17 ] Air France refers to

Article 31 of the Montréal Convention , which provides:

Article 31 – Timely Notice of Complaints 1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the documents of carriage or with the record preserved by the other means referred to in paragraph 2 of

Article 3 and paragraph 2 of

Article 4. 2. In the case of damage , the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and 14 days from the date of receipt in the case of cargo. In the case of delay , the complaint must be made at the latest within 21 days from the date on which the baggage or cargo have been placed at his or her disposal. 3. Every complaint must be made in writing and given or dispatched within the times aforesaid. 4.

If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part . [Our emphasis] [ 18 ] Under this provision, a person who claims that his or her baggage was damaged or that its delivery was delayed must make a written complaint within the indicated delays, failing which no action against the carrier is possible. [ 19 ] In the present case, however, the issue is not one of damage or delay involving baggage, but rather one of loss of baggage as a result of an alleged theft. [ 20 ] The Court therefore concludes that the strict notice requirements set out in

Article 31 of the Montreal Convention do not bar Plaintiff’s claim as argued by Air France. [ 21 ] A carrier’s liability for loss of checked baggage is provided for in Paragraphs 2 and 3 of

Article 17, which read as follows:

Article 17 – Death and Injury of Passengers – Damage to Baggage (…) 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.

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. 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. (…) [ 22 ] To benefit from the presumption of liability created by this provision, Plaintiff must prove, on a balance of probabilities, [12] that the baggage contained the wallet with $ 2,000 in cash when she checked it prior to boarding in Abidjan on June 21, 2014 and that the money disappeared during the time that the baggage was in the charge of Air France. [ 23 ] To meet this burden of proof, the evidence offered must be clear and convincing [13] and the alleged facts must not only be possible, but probable. [14] The Court must determine liability on the basis of the most probable facts. [15] [ 24 ] The Court finds that Plaintiff has not met this burden of proof. [ 25 ] Despite Plaintiff’s testimony and the statement showing a $2,000 withdrawal from her bank account on May 8, 2014, [16] the Court finds it improbable that a passenger would place such a large amount of money in her checked baggage rather than carry the money with her while travelling. [ 26 ] It also appears improbable to the Court that someone would single out Plaintiff’s baggage while in Air France’s possession, open it, steal the $2,000 from the wallet and return the wallet to the suitcase as suggested by Plaintiff. [ 27 ] Consequently, Plaintiff’s claim must be dismissed, but the Court exercises its discretion to do so without costs.

FOR THE REASONS, THE COURT: DISMISSES the action. WITHOUT COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: June 12, 2015