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Recent changes in the liability of the air carrier

by Marta Pietrzak 

Low cost airlines, competitive prices of foreign trips and more and more travel agencies offering increasingly diverse tourist’s offers. Statistics show that during last 10 years, every 5 person in Poland within one year shall hold at least two foreign trips. Of course, every year the popularity of ‘travelling’ increases around the world, but the largest increase in this phenomenon is noticeable in Europe, which became and still becomes the cradle of low-cost air travel.

Unfortunately, air carriers often use the ignorance of the law by passengers, that is why very often passengers whose flight was delayed, whose luggage was damaged or whose lost valuables, do not receive any compensation or receive compensation totally inadequate to the damage suffered and therefore inconsistent with the law.

At the outset, it must be remembered that the main issues related to the liability of the air carrier in countries belonging to the European Union, the Schengen Area and also to the European Economic Area, are regulated by the Montreal Convention of 28th May 1999. Supplementing it consists of: Regulation (EC) No 889/2002 and the legislation of EU member states.

Currently, one of the most common legal damages in the field of aviation law is a delayed or canceled flight. Of course, in case of flight cancellation, the airline is obliged to full reimbursement of the costs of the passenger’s ticket or to offer some alternative flight to the previous destination within next 5 hours. However, the case of delayed flight is not a simple. The Montreal Convention, as well as the other acts of implementing the Convention, indicates the minimum period of delay as 5 hours. So the passenger who plans to request a refund of the ticket price and compensation should have a flight delayed minimum for a 5 hours.

The Montreal Convention clearly indicates that if the flight is canceled or delayed more than 3 hours because of the reasons called as ‘the extraordinary circumstances’, each passenger is entitled to reimbursement of the ticket price and compensation.

It should be also noted that the Montreal Convention indicates very detailed catalog of events that are the extraordinary circumstances. There are really very occasional situations, which in compliance with the meaning of the Convention, could not be avoided by taking specific, reasonable measures, generally such as: force majeure or air crash. Contrary to popular belief, a force majeure certainly is not a need for additional plane’s tests or a waiting for another plane.

Secondly, the passenger includes by the legal principles of the country from which is the departure, not with the state of the target travel. Therefore, if the passenger flies from Poland or from another country, eg. from Greece to the United States of America, and his/her flight is delayed more than 3 hours or totally canceled, the passenger has a right to recover the whole amount of money paid for the ticket and also has a right to receive a compensation in the amount of 250 or 600 Euro.

Since 1st January 2017, the Montreal Convention has introduced a number of the following changes to the civil liability of the air carrier:

– total reimbursement of the ticket – in case of the flight cancellation or delay over 3 hours,

– compensation in the amount of 250 euros – flight delay from 3 to 5 hours,

– compensation in the amount of 600 euros – flight cancellation or delay over 5 hours.

Moreover, many passengers stuck in the belief that in case of the flight’s cancellation and provide by air carrier another flight to the main, previous destination, the air carrier is not subject to civil liability. Of course this is a misconception. From 1st January 2017 this rule has changed. By the end of 2016, in the case of flight cancellation, the airline does not bear any responsibility (and therefore had no obligation to refund the passenger and the payment of financial compensation) if to the passenger has been proposed another flight to the same destination more-less within next 5 hours.

Currently, the international air law leaves freedom to decide by a passenger in the event of cancellation or delay a flight:

– if the passenger will benefit from the proposal of another flight (so-called ‘replacement flight’) to the main destination, he/she may apply for the air carrier to the total reimbursement of the previous ticket and also for a free transport by the new air connection,

– on the other hand, if the passenger does not benefit from the proposed of ‘replacement flight’, he/she has a right not only for a fully recover the cost of an airline ticket, but also has a right to obtain compensation in the amount of 600 euros.

According to above, the choice belongs to the passenger. Passenger may benefit from the proposals of the air carrier, who wants to compensate the loss incurred, but it should be remembered that this is not a passenger’s obligation.

Except delays and flight cancellations, very frequent situations are also the overbooking’s practices. Selling more tickets than available airplane’s seats is currently the practice often used not only by the air carriers, but also by the travellers. Very often booking systems do not work properly and too many passengers makes the luggage and flight check-in in the last minutes. Furthermore, the air carriers sometimes lead to this type of situations to have the best guarantee of occupation all the seats in the airplane. The end result of overbooking is not allowing to the airplane’s board the over limited number of people. So far, passengers who wasn’t allowed on a board, because of lack of free sear (even they had a ticket), can apply for a full refund of the ticket price and for the compensation.

Unfortunately, the amount of compensation was not clearly specified. Usually the amount of compensation was agreed in the Internal Rules of Procedures by the air carriers. In the overbooking’s case, some airlines have proposed 200 euros of compensation, other 400 euros, and some 600 euros. In accordance with the provisions of the Montreal Convention and the other auxiliary legal acts, from 1st January 2017, there is agreed the 600 euros compensation’s amount. Therefore, every passenger who suffered damage as a result of overbooking must be compensated in the amount of 600 euros.

With reference to above mentioned cases, there is one issue not regulated by the international air law in a manner favorable to the passenger. Many passengers think that in the case of destruction or loss of luggage (for example: jewellery, electronic equipment or even damaging the luggage bag) for sure will obtain some an adequate compensation. Unfortunately, this issue depends on the internal rules of each airline. The air carrier may exclude its liability for damage or loss of a luggage (even registered). Therefore, always before making the flight reservation or buying tickets, every passenger should read the Internal Rules of Procedure existing in the elected air carrier. Of course, even if the Internal Rules of Procedure in the elected air carrier does not include compensation for luggage’s loss or damage, the passenger can submit a complaint. What’s more, every passenger (regardless of the air carrier) has a right to complain to the European Consumer Centre.

As can be seen, certainly the rules of the international air law put into practical use from 1st January 2017 provide passengers with a much more effective protection than it was before. However, every passenger wishing to have a guarantee of obtaining his/her claims in the case of cancellation or flight delays, denial of boarding the airplane, the loss or destruction of baggage, absolutely should purchase the additional travel insurance. Many passengers do not realize that they can get a full refund of the ticket price or the highest compensation on the basis of additionally bought travel insurance.

The cost of such insurance is small, for example travel insurance for the week-long trip to another country (European Union, Schengen Area or European Economic Area country), regardless of the trip’s purpose (whether it is a business or a tourist trip) usually cost about 30 Polish zloty (PLN). This is a very low cost, and provides very great advantages, mainly as follows:

– cover the cost of treatment in a foreign country (including the outpatient treatment),

– the personal accident insurance,

– the insurance in case of death,

– as well as the compensation for a canceled and also delayed flight, and any damage or loss of luggage.

It begs the conclusion: each passenger, especially very active airline’s passengers, before every intended flight, should very specifically refer to the provisions of the Montreal Convention and also to the Internal Rules of the selected air carrier, as well as obtain good travel insurance. Only then, travel abroad will be fully safe.

Marta Pietrzak
Lawyer, journalist, traveler. She loves Italian cuisine and oriental dishes. Specialist in Polish immigration law. Assistant of the Legal Aid Department at Papug.pl