Friday, July 17, 2009
The judge wrote that the government's failures to detect and abort the terrorists' plots would not affect the aviation defendants' potential liability. The judge also denied a motion to admit the 9/11 Commission report as a whole as evidence in the case, instead only admitting the chronology provided in the report.
Source: Dow Jones Newswires; find article here>>.
Thursday, July 16, 2009
As in case Xa ZR 78/08, BGH held that missing a connecting flight due to a delay of the feeder would not constitute "denied boarding" under Reg. 261/2004.
BGH furthermore held that a contract for flight carriage normally could not be regarded a contract whereas time is of absolute essence in a meaning that the whole contract would lapse if the scheduled time was missed. Neither could a flight delay be regarded as deficient service entitling passengers to a price reduction. Plaintiff therefore could only have sued for any damages caused by the delay.
BGH 28.05.2009, Xa ZR 113/08; judgement avialable in German here>>.
Thursday, July 09, 2009
European Court of Justice: court of place of departure or arrival compentent for compensation claims under Reg. 261/2004
The place of the head office or the principal place of establishment of the airline concerned does not have the necessary close link to the contract. The operations and activities undertaken from that place, such as, in particular, the provision of an adequate aircraft and crew, are logistical and preparatory measures for the purpose of performing the contract relating to air transport and are not services the provision of which is linked to the actual content of the contract. The same is true with regard to the place where the contract for air transport is concluded and the place where the ticket is issued.
The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, the ‘places of departure and arrival’ having to be understood as those agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
Each of those two places has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, ensures the close connection between the contract and the court having jurisdiction. Consequently, a claim for compensation following the cancellation of a flight may be brought, as a matter of choice on the part of the passenger concerned, before the court having territorial jurisdiction over the place of departure or of arrival.
Source: ECJ press release No 62/09;
Full text of judgement avialable here>>.
Source: eTurboNews; find article here>>.
Source: eTurboNews; find article here>>.
Wednesday, July 08, 2009
The bill aims to make reporting crime aboard ships mandatory and require ships to install security latches and peepholes in cabin doors. Along with security precautions, ship physicians would also have to be trained in sexual assault examinations.
Source: TravelAgentCentral; find article here>>.
Tuesday, July 07, 2009
European Court of Justice: Penalty on Greece for Non-Recovery of illegal State Aid to Olympic Airways
Following difficulties encountered by Greece in implementing that judgment, the Commission brought a new action before the Court, seeking a declaration that Greece had not complied with the Court's judgment and the imposition of a periodic penalty payment and a lump sum penalty payment against Greece.
The Court today delivered a second judgment on failure to fulfil obligations, accompanied by a dual financial penalty: a periodic penalty payment and a lump sum penalty payment.
The Court found that Greece's failure to fulfil obligations has lasted for more than four years. It concerns the common market, the establishment of which is an essential task of the European Community. Moreover, the control of aid to air transport is of considerable importance, since that market is, by its nature, a cross-border market. However, the amounts of aid in respect of which Greece has not proved repayment constitute only a relatively small part of the total sum.
The Court therefore imposed upon Greece a periodic penalty payment of EUR 16 000 per day of delay in implementing the judgment of 2005, counting from one month after the delivery of the present judgment, in order to allow Greece to demonstrate that it has ended the failure to fulfil obligations.
The Court recalled that cumulation of the two penalties in based on the capability of each to fulfil its own objective and depends on the circumstances of each case. The Court, on a just assessment of the circumstances of this case, determined the amount of the lump sum penalty payment at EUR 2 million.
Source: ECJ press release 59/09 of July 7, 2009; find full text here>>.
Monday, July 06, 2009
In France potential passengers –mostly from the Comores community - are refusing to fly again with Yemen flag carrier, denouncing the poor quality. They ask French authorities to ban the airline from French and even EU skies. It is an unprecedented move against an airline with serious potential consequences for the airline industry: Passengers forcing an airline to out of a market could create a precedent open a new era in the relations between airlines and their customers.
Following demonstrations Yemenia announced to “temporarily” suspend its flights to and from Marseille-Provence airport and finally announced to also suspend its flights from Paris until conditions are improving. Anyway, Yemenia will be forced to dramatically improve its safety.
Source: eTurboNews; find Article here>>.
According to the June edition of the UNWTO World Tourism Barometer international tourism declined by 8% between January and April compared to the same period last year. Destinations worldwide recorded a total of 247 million international tourist arrivals in those four months, down from 269 million in 2008. Given the changes in the outlook UNWTO has revised its forecast for the full year 2009. Taking account of the results for the first four months of the year and the current market conditions, international tourism is now forecast to decrease by between -6% and -4% in 2009, as the pace of decline is expected to ease during the remainder of 2009.
Source: UNWTO press release of July 2, 2009; find full text here>>.
Thursday, July 02, 2009
Source: EU press release IP/09/1080 of 2 July 2009; find full text here>>.
Source: wired.com; find article here>>.
Source: USA today; find article here>>.
31. In the explanatory memorandum to its original proposal for a regulation, the Commission noted, at point 20, that ‘[c]ancellation by an operator … represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility, such as political instability, severe weather conditions, inadequate security and unexpected safety failures. For the passenger, cancellation in ordinary circumstances, for commercial reasons, causes unacceptable trouble and delay, particularly when not warned in advance.’ At point 23, it stated: ‘Although passengers suffer similar inconvenience and frustration from delays as from denied boarding or cancellation, there is a difference in that an operator is responsible for denied boarding and cancellation (unless for reasons beyond its responsibility) but not always for delays ...
32. It is not all that easy to discern the logic behind the distinction that the Commission was there drawing ...
35. In the course of the legislative process, however, there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it is difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.
38. The Regulation has the considerable merit of granting automatic compensation to passengers whose flights have been cancelled. However, as the Polish Government notes in its written observations, the distinction the Regulation introduces between cancellation and delay may lead to passengers who find themselves in objectively similar situations being treated differently.
47. In the IATA and ELFAA judgment, the Court stated unequivocally that the objective of Articles 5 (cancellation) and 6 (delay) of the Regulation is apparent from the first and second recitals in the preamble, according to which action by the Community in the field of air transport should aim, inter alia, at ensuring a high level of protection for passengers and should take account of the requirements of consumer protection in general, inasmuch as cancellation of, or long delay to, flights causes serious inconvenience to passengers.
51. However, regardless of the seriousness of the inconvenience caused, the Regulation provides that the cancellation of a flight automatically triggers a right to compensation (under Article 7) while a delay never does. As the order for reference in Sturgeon suggests and as the Commission indicated at the hearing, the Regulation therefore appears to be based on the assumption that a cancellation necessarily causes more inconvenience to passengers, and hence merits a stronger form of protection, than a ‘mere’ delay.
60. It seems to me that the underlying logic (again, against the background of enhanced consumer protection) must have been that, where the operator is not responsible for the inconvenience (whether caused by cancellation or long delay), he should not have to pay compensation; and that, conversely, where he is responsible, he should pay. Put another way, the criterion for compensation is not causation, but fault (broadly defined) on the part of the operator.61. If that is right, it still does not explain why passengers suffering the inconvenience of a cancellation and passengers suffering the inconvenience of a long delay are treated differently. ...
62. The difference in treatment therefore appears to fall foul of the principle of equal treatment.
68. Factors that have been cited before the Court and in national case-law and legal writing as providing possible indications that a flight has been cancelled include: change of air carrier, change of aircraft, change of flight number, change of airport of departure or arrival, giving baggage back to passengers, new check-in for passengers, new seating assignment, allocation of all passengers to one or more other aircrafts, issuing new boarding passes, and the fact that the flight is described as ‘cancelled’ by the pilot (or other air carrier staff) or on the departures board.
69. Common sense suggests that all of these factors could be indications that a flight has been cancelled rather than merely delayed. The more factors that are present together, the more likely it becomes that there has indeed been a cancellation. By the same token, I do not think that any individual factor can be conclusive....
72. The Commission, supported at the hearing by counsel for Mr Böck and Ms Lepuschitz, for Condor, and for the Greek Government, suggests in its written observations that a change of flight number is a strong indication that a flight has been cancelled. I agree.
75. Since none of the factors cited can be conclusive on its own, national courts must assess the importance of each of them, when they are present in combination, in each individual case. That may lead to significant problems with legal certainty.
81. As a matter of common sense, time is obviously a factor in identifying whether a flight has been cancelled. If a number of the factors listed above are present in combination and/or the flight has been delayed for an inordinate period of time, that is a very strong indication that the flight has in fact been cancelled.
83. ... However, there are two difficulties with this approach. First, what is meant by ‘inordinate delay’? Second, is it permissible to interpret the Regulation in a way that classifies inordinate delay as de facto cancellation?
87. It seems to me impossible to identify, with any acceptable degree of precision, exactly what period of time must elapse before a delay become ‘inordinate’.88. It would therefore be a matter for the national court, in each individual case, to evaluate the facts and reach a view – based on some mixture of national legal tradition, good sense and instinct rather than any precise Community legal norm – as to whether the delay in that instance had been ‘inordinate’ and should therefore be regarded as a de facto cancellation. ...
96. It seems to me that, in seeking to avoid Scylla (obvious discrimination against passengers whose flights are inordinately delayed when compared to passengers who obtain automatic compensation for their cancelled flight), one is immediately swept into Charybdis (legal uncertainty). ...
European Court of Justice: Advocate General Sharpston suggests reopen oral procedure on whether Articles of Regulation 261/2004 (EC) are invalid
She suggested that
- Before ruling on the questions posed by the Bundesgerichtshof and the first and second questions posed by the Handelsgericht Wien, the Court should reopen the oral procedure pursuant to Article 61 of the Rules of Procedure and invite submissions from the Member States, the Commission, the European Parliament, and the Council on whether Articles 5 and 7 and Article 6 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, inasmuch as they draw a distinction between cancellation and delay (irrespective of length), are invalid in the light of the principle of equal treatment.
- Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.
Full text of opinion available here>>.
Source: European Commission, DG Health and Consumers, Health & Consumer Voice July 2009 Edition
More information at:
The e-borders programme, which is due to be fully in force by 2014, is aimed at tackling terrorism, crime and illegal immigration and allows passenger details to be checked against watch lists. However, travel operators from the rail, shipping and travel industries told MPs that the Home Office had not consulted them properly and warned that the system could lead to unacceptable delays: Travellers could face chaos during this year's school holidays if airlines are forced to implement new electronic passport checks.
The government said the e-borders scheme was already a proven success.
But travel operators warned it could breach EU laws on data collection. And they said the flagship £750m programme to collect electronic records of everyone who enters and leaves the UK will also miss Home Office deadlines.
Source: BBCNews; find article here>>.
Source: European Commission press release; find full text here>>.