The Hazards of Air Travel




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:-

i. Personal Injury Claims

ii. Baggage Claims

iii. Delays

iv. Denied Boarding/Overbooking

v. Air rage

vi. 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:-

i. 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;

ii. 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);

iii. 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.

iv. 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:-

i. admit that they have never read the airline ticket; and

ii. 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:-

i. 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.

ii. 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:-

i. advising airlines on dealing with passenger complaints generally and defending claims for personal injuries, loss of baggage, delay and the like

ii. advising travel insurers in relation to on recognising claims by passengers, and pursuing claims for indemnity from airlines

iii. acting for passengers in pursuing claims against airlines and travel insurers for personal injury, loss of baggage and delay

iv. 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.

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