Airline and aviation issues can have major wide reaching and on-going effects, often caused by the airlines need to lower standards to out-compete rivals. This means that claims against these organisations will often need to be raised to recover compensation for damage caused. Certain rules now exist to assist customers of airlines, in minor as well as extreme circumstances, to get 100% of the compensation they deserve.
Knowing these rules will allow you to navigate the troubling and often upsetting situations when dealing with these airlines – and know when Lawford Kidd is able to help if a problem isn’t manageable.
Events such as flight delays, lost baggage and overbooked flights present risks that have the potential to cause loss and damage to airline users.
There exists an EU Regulation (261/2004) that establishes common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellations or long delays (as long as the flight meets the criteria). Additionally, the regulation sets out the entitlements of these air passengers when such events affect their travel, although some EU Members States have stronger individual consumer protection.
The regulations apply to any passengers who are flying from an EU-based airport. This protection applies to passengers when they are leaving an airport in a third country for one situation in a Member State (MS), when a MS air carrier operates the flight.
Although technically EU legislation does not apply in these jurisdictions, airports in Iceland, Liechtenstein, Norway and Switzerland are also included, and therefore also cover Icelandic, Norwegian and Swiss air carriers. However, helicopter flights, flights not operated by a fixed-wing aircraft and flights to and from Gibraltar are not afforded protection.
Other restrictions include where the passenger is travelling on a free or discounted ticket not available to the general public, other than a ticket obtained from a frequent flyer program. Further, the claimant must have a reservation on the flight and, with the exception of cancellations, must have checked in according to the airline’s guidelines or no later than 45 minutes before departure if no rules are provided.
If the carrier is bound by the regulations they are under an obligation to make passengers aware of their rights as and when they become relevant and must display a notice inviting passengers to enquire about these if they are delayed longer than two hours.
However, many airlines are members of “alliances” or “codeshare agreements” which means that different carriers operate return flights. This could mean that, if they carrier isn’t an EU airline, the rules will not apply on the return trip, even if flights were booked with an EU carrier.
The benefits airlines provide are split in the categories of “care” and “compensation”. Should problems with the service occur, then passengers are to be informed of their rights and where these are applicable.
When an airline cancels a flight, denies a person boarding, or incurs a delay exceeding two hours, it is obliged to provide each passenger affected with a written notice setting out their rights under the regulation and the contract information of the national body which enforces the regulation.
When passengers become entitled to assistance, they must be offered, free of charge:
If there is a flight delay, when the regulation rules activate depends on the length of the delay:
Before denying passengers boarding involuntarily, the airline is required to first ask for volunteers to not board the flight in return for whatever incentives are negotiated between the carrier and the volunteers. As well as benefits for this elective, the airline must also offer assistance in rerouting or a refund of their ticket.
If insufficient volunteers are obtained then the airline may proceed to involuntarily deny passengers. They must then offer those that are denied boarding compensation, as well as care, in addition to either refunding or rerouting them.
Should an airline upgrade a passenger’s travel class, they are prohibited from charging extra, however, if they are forced to downgrade a passenger due to overbooking, then they must offer a discount.
If a flight is cancelled, passengers are automatically entitled to their choice of:
If the destination has multiple airports, the airline is permitted to transport passengers via this method, provided they make arrangements to reach the original destination or another nearby location agreed upon.
If the flight is cancelled over two weeks before departure, the airlines is not liable to pay compensation if it ensures customers leave no earlier than two hours before originally scheduled to fly, and arrive no more than four hours late. If the cancellation was communicated less than one week before departure, the liability is set at one hour earlier and two hours after arrival. This change must be communicated to the passengers and the carrier must be able to prove they informed all those affected.
Changes made with notice beyond two weeks before departure are not considered short notice and do not receive these benefits.
If an airline expects a flight to be delayed, passengers are entitled to refreshments and communications if the expected delay is:
Passengers may also be entitled to compensation. The Court of Justice of the European Union has established that a passenger experiencing a loss of time equivalent to three hours or more at the final destination is entitled to compensation as though their flight had been cancelled, although this is not stated in the regulations.
Compensation and Assistance
Compensation is calculated on the length of the flight. Presently, there are three broad categories:
Where rerouting is offered and results in the passenger arriving within two/three/four hours of the scheduled arrival time, the compensation payable is halved.
If passengers are forced to downgrade their class of travel, they are due a refund of:
This payment is strictly compensation for the customer's inconvenience and does not replace or form a part of the carrier’s obligation to reroute or provide refreshments, communication or accommodation.
Additionally, these guidelines are the minimum requirements and courts, at their discretion, are able to make higher compensatory awards if there is justification for doing so.
Compensation is not available when the issue is due to an “extraordinary circumstance” that is beyond the control of the airline. To be considered an extraordinary circumstance, it must be unpredictable, unavoidable and external. If the disruption affects all airlines, it's usually an extraordinary circumstance.
Examples of extraordinary circumstances are: closures of airspace; unruly or ill passengers; adverse weather conditions; or, unexpected damage to an aircraft. However, maintenance issues and staff shortages are not usually considered extraordinary. The EU regulations provide a list in order to determine what is considered an extraordinary circumstance.
Although these events prevent compensation, airlines should still offer care and assistance.
In terms of care, the airline should offer this accordingly as the delay develops. In these situations consult with a member of the airline staff.
For compensation afterwards, the airline should be contacted directly. Many will have specific contact details on their website for claims.
Should the airline not be forthcoming, then rights can be applied through what is known as the “enforcing body”. If you are leaving the UK, or arriving on a UK airline from outside of the EU, you should contact the Civil Aviation Authority (CCA). For flights departing other EU states or other EU airlines, the enforcing body in that member state (and not the CAA) should be contacted.
Should this agency not be able to assist in claiming compensation, then a court action may be required to recover.
The Montreal Convention is an agreement created between countries that establishes uniformity and predictability of rules relating to the international carriage of passengers, barrage and cargo. This modernizes international legal operational standards and facilitates a successful global air transport system. Additionally, the Convention provides rules on a carrier’s liability should there by any problems. The Montreal Convention applies in 103 different countries worldwide and is the mostly common avenue of seeking compensation for damages in international air travel.
The Convention states that airlines are strictly liable for proven damages up to 113,100 Special Drawing Rights (SDR), a mix of currency values established by the International Monetary Fund. As of September 2014, 1 SDR is worth approximately £0.94; however, this may change daily like other currencies. Claim amounts are reviewed every five years.
Claims may be made if a flight has been delayed, but the carrier may escape liability if it is able to show that it took all reasonable measures to avoid the damage, or it was impossible for it to act in another way. The maximum claim for liability is 4,694 SDR (around £4,488).
The Convention fixes the maximum liability for lost baggage at 1,131 SDR per passenger (approximately £1,023), unless a higher value has been pre-agreed with the airline before check-in. Airlines are permitted 21 days to find and return any delayed baggage after which the property is considered lost even if the airlines delivers it after that period. It requires airlines to fully compensate travellers the cost of replacement items purchased until the baggage is delivered, up to the maximum liability.
In the event of death or injury (on board or while boarding or disembarking), the airline cannot limit or argue against its liability when a claim for compensation is less than 113,100 Special Drawing Rights (approximately £102,261). The carrier is permitted to mitigate their loss by disproving negligence if the claim is for any figure above this amount.
It is important to note that the Montreal Convention requires suits to be brought within two years of the aircraft’s arrival at the destination, not two years from the injury or death. This condition is rigidly enforceable and offers no protection from complications that may arise from injuries after this two-year period.
The Convention also includes accidents while embarking and disembarking, which covers walking to and from the aircraft and applies not only to members of the public but also employees.
In order to claim compensation under the Convention, the airlines should contact in the first instance. If the airline refuses does not provide a satisfactory remedy then CAA, which will attempt to resolve the dispute.
Should no solution be reached, the Convention states that a remedy may be sought through a court action in either the home country of the airline, the destination country, or in your country of residence (as long as the airline has a presence there, and the passenger’s ticket was booked through it).
Additionally, with claims involving injury or death, action may be raised in the country where the person lived provided, again, that the airline operates there (even if another carrier operates there on its behalf).
Lawford Kidd has considerable experience with this and is able to offer professional advice. Our expert personal injury lawyers specialise in handling aircraft, aviation and travel accident claims in Scotland. Over the years, the firm has been involved in claims for passengers and airline staff arising out of major aircraft accidents. We have also helped claimants who have had problems with travel accidents abroad claim compensation.
Through our great quality of personnel and service and exceptionally responsive approach we are able to help passengers recover loss that they have experienced due to airlines. This has allowed them to enforce their guaranteed rights and begin to repair some of the financial damage they have experienced.
We will give you free advice about the prospects of success and can help you on a 100% compensation, no-win-no-fee basis against your employer or, where relevant, insurers. Don’t delay, contact us as soon as possible.
Click here to start making your claim or call us on 01312255214.