The flight arrangements may need to be confirmed.
Personal injuries can occur at the airport, through tripping or slipping, and in the aircraft, from objects falling from overhead lockers, from air turbulence and food poisoning.
Baggage can be damaged, delayed or lost.
Travel can be delayed, boarding can be denied because of overbooking.
Air rage can endanger the safety of the passengers and crew.
Air travel has its own legal framework which remains a mystery to almost all passengers.
This article sheds some legal light upon the hazards of scheduled, as distinct from chartered, air travel.
OUTLINE
We will start by examining the booking and the ticket, which create the contractual basis for the relationship between the airline and the passenger.
We will then turn to examine five common legal situations involving the airline and the passenger (and their baggage) namely:-
- Personal Injury Claims
- Baggage Claims
- Delays
- Denied
Boarding/Overbooking
- Air rage
- We will end with a note upon travel insurance.
Booking and Ticketing
The booking and the ticketing of
the booking form the legal basis
of the flight.
Four kinds of tickets can be
booked for flights:-
- the normal full fare
ticket for a specific
flight. The ticket will
allow flight arrangements to
be changed, without penalty.
The ticket is valid for one
year;
- the full fare ticket
that is "open", that is,
where no specific flight
arrangement is booked (such
as for the return flight).
The ticket will allow
specific travel arrangements
to be made within one year
(of its issue);
- special fare tickets,
such as advance purchase
tickets and special
"holiday" offers, which are
issued at a discount to
normal fares. Flight
arrangements cannot be
changed without penalty. If
a passenger does not take
the flight booked, then the
fare will be lost.
- frequent flyer redemptions: the availability of frequent flyer redemption flights is limited in terms of number of seats per flight and flight availability. Flights can be changed.
Once a flight has been
booked, it is important to check
its "status", that is, is the
booking confirmed? The airline
has no obligation until the
booking is confirmed.
The status is shown on the
passenger coupon inside the
paper ticket or on the e-ticket
confirmation. Bookings which are
not confirmed are either marked
"not confirmed" or are marked
"waitlisted". Evidence of
confirmation is coded "OK" in
the status column on the
passenger coupon.
The other "status" needing
confirmation, namely the class
of travel is also coded on the
coupon: First Class - P/F:
Business Class - J and Economy
Class - Y. Bookings can be
confirmed in say economy class
and upgrades waitlisted.
Different flight arrangements
apply to each class in terms of
seating, food, baggage
allowances, access to airport
lounges and frequent flyer
points.
Most international airlines do
not require a flight bookings to
be re-confirmed. However some do
require re-confirmation of
continuing or return
reservations where the journey
is broken by more than 72 hours.
Passengers should check with
their travel agent or airline,
or at the airlines desk at the
airport when they arrive, to
find out if continuing or return
flights need to be re-confirmed.
The
Airline Ticket
All airline
travel is subject to conditions
of carriage.
When
questioned, most passengers:-
- admit that they have
never read the airline
ticket; and
- think that if they did read it, it would make them legally responsible.
Both attitudes are misconceived!
In paper ticket travel, the
conditions are found in the air
ticket, which also contains a
series of warnings regarding
baggage, overbooking and the
like. All international flights
have paper tickets. In e-ticket
travel the practice is to have
the terms and conditions of
travel displayed at the check-in
counter where the bags are
booked in or where the boarding
pass issues.
For our purposes, we will assume
that the conditions of carriage
are contained in the ticket.
The ticket contains the flight
coupon, which sets out details
of the passenger, the flights,
particularly the departure dates
and times, which should always
be checked for correctness. It
is important to check the name
is accurately spelled out - as
per the passport
It contains conditions of
contract, advice on limitations
of liability, notices concerning
baggage and dangerous goods, the
number of pieces and weights of
cabin baggage and the like.
The conditions that apply to a
flight do not end there - the
law introduces conditions and
flight safety and convenience,
such as prohibitions on the use
of mobile phones and no smoking,
and conditions which govern the
right to claim compensation from
an airline for personal injuries
and for loss or damage to
baggage, and for delays.
The conditions also include
directions given by airline
staff to passengers.
These conditions apply to the
passenger regardless of whether
the passenger reads them*: the
Warsaw Convention conditions
apply as soon as the ticket is
handed to the passenger; the
warnings on dangerous goods
apply automatically because of
government legislation and the
booking conditions introduced by
the airline apply from either
the time of booking or the time
of check-in because the airline
has done everything reasonably
necessary to bring those
conditions to the attention of
the passenger.
* Note: may be scope for
infrequent flyers who purchase
e-tickets to argue that they are
not bound by the terms and
conditions of travel introduced
by the airline (if they are not
physically handed a copy of the
terms and conditions).
Some extra flight conditions and
policies are set out in the
airline magazine found in the
seat pocket of the aircraft
which cover not only legal
issues but issues of safety and
convenience.
My advice is therefore that
although the ticket may not be
easy to understand, with the
benefit of the explanation in
this article to aid
understanding, the ticket should
be read.
Where does air travel law apply?
The law of civil aviation (air
travel law) applies to airports,
aircraft and air routes.
Airlines are responsible for
passengers and their baggage
from the point of embarkation,
during the flight, and until
disembarkation. During the whole
of that period, the passenger
and their baggage are subject to
the legal regime of what is
known as the Warsaw Convention.
For passengers, where is the
line marking the point of
embarkation (boarding) that the
passenger crosses at the
airport? It is after they have
walked through the X-ray scanner
and past the duty free store. It
is the point when they enter
into the boarding lounge (if the
lounge is controlled by the
airline, with restricted access)
or else when they pass through
the boarding gate where the
boarding pass and coupon is
taken from the air ticket.
For baggage, embarkation is at
the point the baggage is checked
in and the baggage coupon is
attached to the ticket.
There is room for controversy:
Is the moving footway within the
terminal in the course of
embarkation?: No; Is travel in
an airport bus over the tarmac
to the aircraft in the course of
embarkation?: Yes.
The regime of the Warsaw
Convention continues until
disembarkation (leaving the
aircraft). It is the point at
which the passenger is no longer
under the control of the
airline, when they enter into
the airport building and into a
public area, and when their
baggage appears for collection
upon the baggage carousel.
Personal Injury Claims
Personal injuries sustained
between embarkation and
disembarkation can only be dealt
with under the terms of the
Warsaw Convention. It is not
possible to claim under other
laws.
The Warsaw Convention both gives
and takes away.
It gives the right to the
passenger to claim compensation
for death and personal injury,
without the passenger needing to
prove that it was the airlines
fault. This is particularly
useful in air disasters where
determining the cause is
difficult, expensive and often
long delayed.
However, airlines can argue that
they took all necessary measures
or that the passenger
contributed to their injury
through their own failure to
take care (negligence). The
airline takes all necessary
measures by warning passengers
to fasten seatbelts and to
securely close overhead lockers,
and by checking them before take
off and landing. Examples where
the passenger is at fault are if
they trip over a bag they have
left in the aisle or fail to
securely stow hand luggage in
the overhead locker.
The airlines take away by
limiting the claim in terms of
the amount which can be claimed,
what types of injuries can be
claimed and the time for
claiming.
For Australian airlines and
airlines where the flight
commences or ends in Australia
the amount which can be claimed
is limited to $500,000. In other
places, the limit can be much
lower, for example, the USA,
where the limit is US$75,000. If
the airline is reckless, the
limit does not apply.
There are limitations upon the
type of injury claimed. Injury
claims are restricted to the
"death or wounding of a
passenger or any other bodily
injury suffered by a passenger".
Consider the case of Kotsambasis
-v- Singapore Airlines (1997)
Miss Kotsambasis was seated on a
Singapore Airlines aircraft
departing from Athens Airport.
Shortly after take off she
looked out through the window
and saw smoke coming from a
starboard engine, which appeared
to have caught alight. The pilot
announced the plane would return
to Athens because of a
mechanical malfunction. However,
it needed an hour to jettison
fuel and returned to the airport
at 3.23am. Because of lack of
facilities, the passengers were
required to stay on board the
aircraft until finally allowed
to disembark at 5.50am.
The NSW Court of Appeal decided
Miss Kotsambasis could not claim
for the shock and distress
suffered because it was not
"physical injury" as defined
under the Warsaw Convention and
was therefore not able to be
claimed.
A time limit of two years
applies to making claims for
death and personal injury.
Travel insurance coverage
provides compensation in the
form of medical and hospital
expenses for injuries sustained
while overseas, and a lump sum
"life insurance style" payment
for death whilst travelling. The
insurable amounts vary, and are
often capped.
Baggage Claims
Baggage can be lost, baggage and
contents can be damaged.
Just as for personal injuries,
the Warsaw Convention both gives
and takes away for baggage.
Airlines are responsible for the
loss and damage to baggage,
whilst it is within their
control, without the passenger
needing to prove fault. Airlines
will not be responsible if
prohibited items or dangerous
goods are carried and damage
results. Most airlines also
exclude liability for scratches,
scuffs and dents to cases
(luggage).
The airlines liability is
limited in Australia to A$1,600
with a maximum of A$160 for
unchecked baggage (i.e.
hand/cabin luggage) and the
balance for checked baggage
(i.e. stored in the hold).
Mostly, the loss is calculated
on weight at approximately US$20
per kilo for checked baggage,
and by value for unchecked
baggage. The baggage coupon
affixed to the ticket records
details of the checked baggage.
Unchecked baggage is not
recorded.
Strict time limits apply to make
claims. If the baggage is lost,
the claim must be made within
seven (7) days. The claim is
best made at the airport after
it is discovered that the
baggage has not appeared on the
carousel. If the baggage is
damaged, the claim must be made
within twenty-one (21) days of
its delivery.
Travel insurance coverage will
compensate for loss, damage to
and delays in arrival of baggage
more generously than the
compensation provided by the
airline. The level of coverage
is higher (often up to $10,000)
but more importantly,
compensation is based upon
replacement value (if new) or
second hand value (if not),
rather than upon weight. This is
particularly significant for
clothing, electronic and
photographic items and
jewellery, where weight is low
compared with value.
Delays
Airline flights have been known
to be delayed!
Usually, the delay is caused by
faulty electrical or mechanical
equipment, such as faulty
warning lights, a faulty latch
on the cargo bay door. Delay is
also caused by adverse weather
conditions or industrial
disputes, such as an air traffic
controllers dispute which might
close the airport.
Claims for compensation for
delay are difficult to make out
against airlines for many
reasons.
First and foremost, the delay
must occur between the point of
embarkation and disembarkation.
If the airline has any inkling
that a delay will occur, it will
not permit embarkation and
therefore avoid liability.
Secondly, airlines like other
carriers are not required to be
punctual - they can carry "with
reasonable dispatch". If the
airline has done everything it
can for the flight to be on
time, then what it has done will
be reasonable.
Finally, only "damage" arising
from the delay can be claimed
for. The inconvenience and the
boredom of waiting for the
problem to be fixed are not
claimable. It must be "physical
injury or financial loss" which
has been notified to the
airline.
Missed connections are the most
common source of claims - but
even they can be "cured" by the
airline ensuring the passengers
are booked on their next
available flight or on another
airlines next available flight.
Faced with these difficulties, a
passenger is well advised to
have travel insurance coverage
for delays and missed
connections, namely for the
meals and accommodation, and a
clothing allowance for delays in
baggage arrival. The coverage
extends far beyond what is
recoverable from an airline for
delay.
Denied Boarding/Overbooking
One of the most distressing
hazards of air travel occurs
when the passenger presents
themselves at the check-in
counter and is told that even
though their booking is
confirmed, they will not be
checked in because the flight is
full. These days, airline
tickets refer to this as a
possibility in their conditions
of carriage and emphasise that
check-in times must be observed.
Check in times are at least 30
minutes for domestic flights and
at least 1 hour, and for some
airlines 2 hours, for
international flights. If a
passenger does not present
themselves within these times,
then the airline can ignore
their confirmed status and
re-allocate the seat.
Assuming the flight has been
confirmed and the passenger
checks in within the required
time, then the airline is
responsible to compensate the
passenger if it decides not to
take them on the flight, by a
combination of meal allowance
and cash compensation if they
are able to be flown later that
same day, and with accommodation
and telephone calls in addition,
if another flight cannot be
arranged until the next day.
Airlines usually ask for
volunteers before compulsorily
offloading passengers.
Air
Rage
"Air Rage" is the popular term
for unlawful interference with
aircraft operations or unruly
behaviour on the aircraft. The
cramped spaces in aircraft, the
greater effect of alcohol at low
pressure and the non-smoking
policies of Governments and
airlines all play a part in air
rage. As air rage is a matter of
safety, it is taken very
seriously by the airlines and by
the relevant government
regulatory authority.
Strict procedures are laid down
for airlines to follow. As the
first step, the airline issues
warnings, both verbal, and
written (the "yellow card"). If
the behaviour continues, the
passenger can be physically
bound in a straight jacket and
even off loaded through an
unscheduled stop at the nearest
airport (at the passengers
cost).
Passengers who engage in air
rage are liable to be banned
from the airline, and are often
prosecuted and convicted.
Depending on the seriousness of
the incident, the passenger can
be fined or even jailed.
Travel Insurance
Travel insurance can provide
coverage for many of the hazards
of air travel, particularly
medical and hospital expenses
resulting from physical injury,
loss of baggage or valuables and
substantial compensation for
delays.
Travel insurance falls into two
main classes:-
- full coverage for the
holiday covering risks
ranging from cancellation
pre and during the holiday,
medical and hospital, loss
of baggage and personal
effects, loss of life and so
forth.
- coverage limited to the air, sea or rail travel, covering risks such as cancellation, loss of baggage and delay. Trip insurance is usually offered by airlines, or in the USA, at the airport.
The benefit of travel
insurance for a passenger is
that it is a quick and simple
means of obtaining compensation.
Once a passenger claims upon
travel insurance, then the
travel insurer stands in the
shoes of the passenger to make
that claim against the airline.
Final Word
Jim
Hall the Chairman of the
National Transport Safety Board
in the US said this about the
fascination people have with
plane accidents:
"Most of us can walk, most of us
can drive and most of us can
swim, but most of us can't fly,
and I think they will always be
a fascination with flight, and
with the average person, I think
there is that little sinking
feeling in the stomach when they
are at 30,000 feet and they are
not in control."
Cordato Partners can help as
follows:-
- advising airlines on
dealing with passenger
complaints generally and
defending claims for
personal injuries, loss of
baggage, delay and the like
- advising travel insurers
in relation to on
recognising claims by
passengers, and pursuing
claims for indemnity from
airlines
- acting for passengers in
pursuing claims against
airlines and travel insurers
for personal injury, loss of
baggage and delay
- advising relatives of deceased passengers on full compensation to be claimed arising out of the death
Important Notice:-
This article provides a summary
of the law. It does not cover
the whole of the relevant law
and is not a substitute for
professional advice.
Moreover, because it avoids
legal language wherever
possible, there may be some
generalisations about the
application of the law. Some
provisions of the law referred
to have exceptions or important
qualifications.
Your particular circumstances
need to be taken into account
when determining how the law
applies to you.
The
information available on this
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basis:-
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