Airline Travel Law



Airline Travel Law Topics:


If you suffer stomach pain on an airplane, do you have a claim?

Airlines owe a legal duty of care for the safety of their passengers.

Not only do airlines promote safe travel, but by international law they must make sure the passenger is kept safe from personal injury or even death.

The international law is called the Montreal Convention. It says that if a passenger is injured because of an accident on board (or boarding or leaving) an aircraft, then the airline is legally responsible. The passenger does not need to prove it was the airline’s fault. They only need to prove the accident happened.

But how far does the definition of ‘injury’ stretch?

A recent decision of the Federal Court of Australia has set the boundaries.

The passengers claimed they suffered stomach cramps, nausea, diarrhoea and other health conditions after drinking a cup of water, which was tainted by a perfume used as a deodoriser in the lavatory of the plane. They claimed $25,000 compensation for their pain and suffering.

The Court was not convinced. It said that these health conditions were not injuries. It was just like catching a cold on an aircraft, which is an inconvenience, not an injury. There was no medical evidence of damage to an organ in the body. The claim was dismissed.

It’s a different story if there is a physical injury caused by a bag falling from an overhead locker, a slippery floor or a wonky seat. The airline is responsible to pay compensation.

For more on the Federal Court decision click


What’s to happen to the unwanted Virgin Australia aircraft?

Virgin Australian Airlines appointed insolvency administrators on 20 April 2020, when its debt servicing burden became unsustainable.

The successful bidder for the Virgin Australia Group will operate a simplified all-Boeing 737 mainline fleet and the retention of the regional and charter fleet. This means that half the fleet which consists of ATR, Boeing 777, Airbus A330 and Tigerair Airbus A320 aircraft types is unwanted. The unwanted aircraft were mostly under finance or lease.

Usually when an airline goes into liquidation, lessors and financiers will immediately repossess their aircraft and fly them away.

But in these Covid-19 times, the Virgin aircraft financiers were in no hurry. No one was lining up to lease aircraft. Wells Fargo and Willis decided to request the insolvency administrator to deliver up the aircraft engines to their facility in Florida.

The administrator refused, not wanting to pay the cost of delivery.

What’s to happen has been decided by the Federal Court. For more click



Virgin planes can fly the coop on 20 June 2020 - unless they decide to stay

Due to a little known international treaty, the Virgin fleet has been grounded in Australia since 20 April 2020, which was when Administrators were appointed to Virgin Australia Airlines.

But that grounding will end on 20 June 2020 because that is when the 60 day stand-still period ends under the Cape Town Convention which applies to international interests in aircraft. 'International interests' refers to lease finance and other finance for aircraft.

Almost all of the Virgin fleet is affected - 142 aircraft in the Virgin fleet of 144 aircraft are leased or financed. The 50 aircraft lessors are owed $1.8 billion and the 23 aircraft financiers are owed about $2 billion. They have not received any lease payments since April, but have been paid usage fees if their aircraft has been flown.

On 20 June 2020, the aircraft lessors and financiers can decide to terminate their leases with Virgin, re-fuel the 142 aircraft and fly them out of Australia, and no-one can stop them. If all of them did so, Virgin would be left with the 2 planes it owns.

The only reason why they may not choose the 'fly away' option is that they cannot get a better leasing deal with another airline because the COVID-19 pandemic has drastically reduced flights around the world.

Their other option is to wait until the creditors meeting on 22 August, to see if the successful bidder for the Virgin business needs their aircraft. If so, they need to be prepared to reduce the rent payable as an incentive.

The bottom line is that the Virgin Administrators might have precious little in terms of aircraft left to sell by the time of the creditors meeting. Time will tell.

For more detail click on my article Where do aircraft lessors stand after the insolvency of Virgin Australia Airlines?



Why do Airlines offer water as soon as the 'fasten seatbelts' sign is turned off?

On long-haul flights, water, juice or alcohol is served with lunch and dinner. Usually, meals are served 2 hours after departure, so it's a long time to wait for a drink of water.

Recently, some airlines are providing bottled water or a drink from the drinks cart earlier, as soon as the 'fasten seatbelts' sign is turned off, which might be 30 minutes after departure (or after climbing to 10,000 feet).

Is this practice purely out of concern for the health and well-being of the passengers, to combat dehydration? Or is there some other reason?

The passenger's 'dehydration' starts well before boarding. At the carry-on bag security screening at the airport, bottles of water are confiscated. So a passenger could be thirsty when they board.

It is well known that flying accelerates dehydration because of the low humidity inside the cabin. The humidity level is less than 25% due to the extremely low humidity levels of the outside air supplied to the cabin.

The statistics are that perhaps two or three faints a week will occur on an aircraft, to which dehydration is a contributing factor. Airlines advise 'Keep well hydrated by drinking enough water'.

All this supports the proposition that providing water or drinks early and often is in line with the airline's concern for the passenger's health and well-being.

But is there a legal liability reason? In a recent decision of the Supreme Court of Victoria, the facts were that a passenger fainted when entering the toilet, fell and broke her ankle. She claimed a large amount of compensation from the airline (Emirates) for her injury.

She claimed that she had fainted because she was dehydrated because of airline's failure to provide her with water before the meal (and also after the meal).

She failed in her claim because the airline (Emirates) was able to satisfactorily explain why it had not supplied her with water when she requested it, and that when the incident occurred (in 2015), it was normal policy to provide water before the first meal.

The last year, when I flew Emirates to Dubai, I noticed a change. The drinks cart came down the aisle as soon as the 'fasten seatbelts' sign was turned off. I can only assume that Emirates is now serving drinks early both for the health and well-being of the passengers and to avoid legal liability.

For my summary of the Court's decision, click on my case note Airlines need to provide water to passengers often to avoid in-flight injuries


If your flight is delayed or cancelled, the airline must offer a fare refund

The consumer watchdog, the ACCC has taught Jetstar an expensive lesson to not discriminate against budget travellers when it comes to fare refunds.

Jetstar had a 'No Refunds' fare rule for passengers who booked the basic Jetstar 'Starter fare'. This fare pays for a seat and carry-on baggage only. If a passenger wants entertainment, food and flight flexibility (including refund rights) then they must pay more.

In other words, Jetstar took the view that you get what you pay for. And even if Jetstar delays or cancels the flight there are no refunds for 'Starter fare' passengers.

The ACCC took Jetstar to the Federal Court and the Court fined Jetstar $1.95 million because it is against the Australian Consumer Law to deny passengers the right to compensation if an airline cannot provide flights or provide them within a reasonable time.

As a result, where a flight is delayed by more than 3 hours or cancelled because of weather events, air traffic control issues, industrial action by a third party, security issues and so forth, airlines in Australia must:

  • Attempt to book on the next available flight they provide, at no extra cost;
  • If they cannot, provide a flight credit or a refund.

For my case note click No Refunds FareRule costs Jetstar $1.95m

If you are injured on an aircraft, if you wait two years to claim it’s too late

It is a quirk of air travel that an International Convention known as the Warsaw Convention (also known as the Montreal Convention) both gives and takes away rights to claim compensation.

It gives air passengers rights to claim compensation without requiring them to prove that the airline was at fault. All an air passenger needs to prove is that they were injured, or a family member was killed, or their bags were lost, and they will have a claim.

It takes away air passenger rights to claim full compensation for injury, and their family members rights to claim full compensation for death, by limiting the amount to $725,000 and $1,600 for lost baggage (in Australia, to and from Australia).

Equally as importantly, there are time limits for making claims. Claims for damaged baggage must be made within 7 days, claims for lost baggage must be made within 21 days. For injury or death claims, the time limit is 2 years.

Two years can pass quickly - too quickly as the Stephensons found out. In their case, their husband / father was killed when a helicopter in which he was a passenger struck a power line, flipped and crashed. They made a workers compensation claim upon the employer, the Parkes Shire Council, but left it for 3 years before they made a claim under the Warsaw Convention.

The High Court of Australia has ruled that the Stephensons rights to claim compensation of up to $500,000 each under the Warsaw Convention had been extinguished because they failed to bring their claim within two years.

For my case note, click on Article 29 Warsaw Convention: two years is too late to wait to bring a claim for the death of an air passenger

Fare refunds for flight delays and cancellations are now easier in Australia

It's frustrating to be waiting at an airport and watching your flight being delayed on the Flight Directory. It's even worse if it's late at night and the flight is cancelled because it cannot take off before the curfew.

The airline will offer refreshments, meals and accommodation for overnight delays. But what if you don’t want to take the flight anymore?

When it comes to giving a fare refund for flight delays and cancellations, airlines have been very reluctant:

Jetstar policy was that its 'Economy Starter' fares and 'Plus Bundle' fares were non-refundable unless the passenger purchased a flight bundle at additional cost.

Qantas policy was that refunds were not available for its 'Red e-deal' fares.

Tigerair policy was that a "refund admin fee" was payable for a refund, and the refund was only available as a fare credit valid for 6 months only.

Virgin Australia policy was that refunds were not available for its 'Domestic Getaway' and International Short-Haul fares, and the refund was only available as a fare credit valid for 12 months only.

The consumer regulator, the ACCC, has used its threat of legal action for breach of the consumer guarantee that services must be supplied within a reasonable time to have these four airlines agree to offer fare refunds to any passenger who requested one over the past 2 years and in the future.

In addition, it proposes to fine Jetstar $1.95 million because its policy to offer refunds only if a more expensive fare was purchased was far worse than the refund policies of the other airlines.

The result is by no means perfect. Often a passenger has to pay more to another airline for a fare if the flight is cancelled and they may lose their connections. These extra costs are not compensated. Nor is there any fixed compensation available as there is in Europe where up to E600 is payable for a flight delay or cancellation (as an alternative to a fare refund).

For more information click on my briefing note At last, a new regime for refunds for flight delays and cancellations in Australia


Do airline cancellation fees and charge fees annoy you? Help is on its way.

If you want to cancel your flight, for whatever reason, you pay a cancellation fee. Is a fee of 60% of the fare a fair fee if the cancellation is more than one month before the flight?

If you want to change to another flight, or want change your booking, you pay a change fee. Is a fee of $80 fair if you want to change to another flight which had spare seats?

If the airline cancels your flight, can you ask for cancellation compensation despite the prominent 'no refunds' notice? Is paid overnight accommodation and meals enough compensation if the cancellation was the airline's fault?

The good news is that the consumer law watchdog (the ACCC) is about to change the way airlines charge you excessive cancellation and change fees if you want to change your mind about a flight.

The ACCC also wants airlines to change their 'no refunds' notices, and to give more compensation to passengers where the airline has cancelled the flight due to the airline's fault.

The ACCC has outlined its position in a Report - Airlines: Terms and Conditions - and will be engaging with airlines operating in Australia to change their terms and conditions. It may even bring some test cases to the courts on behalf of passengers.

For more information on the report, and to see 6 examples out of 1,400 complaints the ACCC has received in the past 2 years, click - Memo to Airlines: It's time to review refund policies, cancellation and change fees to comply with the Australian Consumer Law

Will 'Yoga or Yogurt' replace 'Tea or Coffee' on the Qantas inflight menu?

What's behind the new move by Qantas to emphasise health and wellbeing, especially for long haul flights?

What Qantas has done is to commission scientific research on counteracting jetlag, recommended physical activity, better nutrition, better transit lounge design and improving the cabin environment. Qantas is looking to do more than just 'Refresh' by providing a Refresh bag with bottled water!

There are legal, public relations and marketing perspectives to this move -

  1. Legal - Qantas is keen to reduce passenger claims - it is looking to improve the flight conditions and provide better warnings and advice to reduce claims and complaints for health related issues.
  2. Public Relations - Qantas is known for its 'safety' branding. It wants to add 'inflight health' to its branding / image.
  3. Marketing - Qantas wants to be able to market that passengers will feel refreshed and rejuvenated at the end of their flight as the reason why people should choose Qantas to fly with.

We will know soon enough if the scientific research will help Qantas - the first test will be on the 17 hour non-stop flight from Perth to London on its new Boeing 787 Dreamliner. The flights are due to start in in March 2018.

For more click on my article, with public relations insights by Richard Lenarduzzi and marketing insights by Michael Field - Will 'Yoga or Yogurt' replace 'Tea or Coffee' on the menu for Qantas long haul flights?

The dangers of flying a drone near aircraft, and what are the chances of your airplane hitting a drone?

The Australian Transport Safety Board has recently investigated the chances of an airplane colliding with a drone. It has issued a 48 page report: A safety analysis of remotely piloted aircraft systems.

If you think of a drone as a mechanical bird, then data upon bird strikes on aircraft will help predict the damage expected from collisions between drones and manned aircraft.  Click Here

Australian domestic airlines agree to an ‘opt in’ model for extra charges

Australian airlines will now use ‘opt in’ choices in their online bookings, where passengers need to agree to extra charges being added. Instead of ‘opt out’ choices , where the extra charge is added unless the charge is removed by the passenger. Click Here

Do hidden extra charges annoy you when booking flights or places to stay online?
There’ll be no more drip pricing by Airbnb and eDreams in Australia


Can hot tea served on a plane cause back pain?
Airline avoids liability for passenger injury from a hot tea spill


The hazards of Air Travel
Examining the booking and the ticket......then examine five common legal situations involving the airline and the passenger...


US Visa Waiver Program (ESTA)
Enables nationals of 36 countries including Australia to travel to the United States ... without obtaining a visa stamp...


Now sit back, relax and enjoy the flight! - a case about aircraft seating
Car rental / hire car businesses overcharge for damage repairs....A fall from a top bunk creates a $853,396 migraine


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