Airline Travel Law
Airline Travel Law
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
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 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
For more on the Federal Court decision
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
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
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
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
For my summary of the Court's decision, click on my case
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
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
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
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
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
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
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
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
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 -
- 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.
- Public Relations - Qantas is known for its 'safety'
branding. It wants to add 'inflight health' to its
branding / image.
- 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
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
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.
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.
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
Can hot tea served on a plane
cause back pain?
avoids liability for passenger injury from a hot tea
The hazards of Air Travel
Examining the booking and the ticket......then examine five
common legal situations involving the airline and the
Waiver Program (ESTA)
Enables nationals of 36 countries including Australia to
travel to the United States ... without obtaining a visa
Now sit back,
relax and enjoy the flight! - a case about aircraft
Car rental / hire car businesses overcharge for damage
repairs....A fall from a top bunk creates a $853,396