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Case Comment: 2006 Implementing Provisions Agreement
Published in the May 2010 issue of Transportation Notes - View Article
In the November 2009, edition of this newsletter we reported on the near certain death of Bill C-310, Canada’s first attempt at a “bill of rights” for air travelers. Earlier that month, the Standing Committee on Transport, Infrastructure and Communities recommended that the House proceed no further with the Bill. As anticipated, the Bill was voted down when it came up for a final vote in the House of Commons on May 5, 2010. Thus this particular initiative is certainly at an end. However, there is reason to believe that another attempt to introduce such legislation will be made this Fall.
Meanwhile, on May 3rd the Canadian Transportation Agency, which is an active proponent of passenger rights, issued a decision which brings an end to a three year struggle over the issue of appropriate tariff filings in recognition of the 2006 Implementing Provisions Agreement (“2006 IPA”) whereby subscribing carriers agree to amend their terms of contract to incorporate provisions of the Warsaw and Montreal Conventions.
The Agency has, with some apparent reluctance, agreed to allow the filing of tariffs incorporating the amended 2006 IPA.
The history of this struggle goes back to October 2006, when the U.S. Department of Transportation approved the original 2006 IPA. In April of 2007, Delta Air Lines filed an amendment to its general rules tariff with the Agency to give effect to the 2006 IPA. The Agency responded with a Show Cause letter in which it concluded that the “tariff provisions do not afford to passengers all the rights that are extended by the Montreal Convention, thereby rendering such provisions unjust and unreasonable”. It suspended the tariff revisions subject to further investigation.
The thrust of the Agency’s criticism was the failure of the revised tariff to set out all of the provisions of the Montreal Convention. The Air Transport Association of America (“ATA”), which represented Delta in the ensuing discussions with the Agency, pointed out that tariffs have never purported to set out all the provisions of the Conventions. This state of affairs has been accepted by regulators throughout the world. Indeed the Agency itself has routinely accepted for filing tariffs which do not meet the standard it was now applying to the Delta filing.
Discussions between the ATA and the Agency continued and in June 2009 the ATA submitted revised tariff language. While the Agency recognized that this language would provide passengers with some additional benefits, it was not satisfied that the changes went far enough. The Agency stood by the view it had expressed in the Show Cause letter—the “tariff should be a stand-alone document avoiding references to other documents unrelated to the tariff. Passengers should be able to fully understand their rights in law simply by reading the tariff”.
It is difficult to understand how this objective could be accomplished. The exact nature of the rights given by the Conventions is a subject of a rich and complex jurisprudence and it would be entirely impossible to capture all the nuances and qualifications which exist today, much less those which may evolve, in a tariff.
In any event, the ATA decided it could not delay implementation of the amended 2006 IPA any further. On November 9, 2009, it applied to the U.S. DOT for approval of the amendments to the 2006 IPA. The ATA indicated that, on approval, the amended 2006 IPA would apply to all countries except Canada. The DOT approved the IPA by Order 2009-12-20 of December 23, 2009.
The Canadian Transportation Agency was thus left in a rather awkward position. Carriers represented by the ATA were in a position to, and did in fact, begin filing terms of carriage applicable to all countries except Canada which were more favourable to passengers than the terms governing carriage to Canada. The Agency recognized and acknowledged that the revisions made by the ATA “were designed to respond to the Agency’s concerns and . . . that there are particular benefits associated with the tariff language”. It would provide uniformity and would provide “passengers with rights that are additional to those appearing in tariff provisions currently on file with the Agency.”
Having said this the Agency went on to reaffirm its commitment to a “stand-alone document” standard. However, its commitment to this principle did not prevent it from approving the amended 2006 IPA wording, thus permitting uniformity in the rules governing carriage to and from Canada and between international points.
Canadian Transportation Agency,
Decision 161-A-2010