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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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