USA: Government Accountability Office investigating tarmac rule's effect on airline operations

The U.S. Government Accountability Office - "the investigative arm of Congress" - is investigating how the new tarmac-delay rule is affecting air travel. The new Transportation Department rule caps tarmac delays at three hours and sets minimum requirements for proper care of passengers while they’re stuck on the plane. The rule took effect at the end of April.

Source: Travel Weekly; find article here>>.

Brazil: ANAC extends the rights of air passengers.

The ANAC – National Civil Aviation Agency, tied to the Ministry of Defence, has enacted the Resolution 141 which enters into force on June 13th. It broadens the rights of passenger flights delayed, cancelled or in case of breach (preventing the need for boarding aircraft or exchange overbooking). The main innovations are reducing the period within which the company must assist the passenger, the expansion of the right to information and immediate rearrangement in cases of cancelled flights, disrupted, and passengers unsuccessful boarding flights with confirmed reservations.
















The air companies are prohibits to sale tickets for the next company's flights to the same destination until all passengers affected by delay cancellation or breach is rearrange themselves.
Breaking the rules infraction ANAC general conditions of carriage and may result in fines ranging from BR$ 4000 to BR$ 10,000 per occurrence.

Resolution No. 141 partially replaces Ordinance No. 676-5/2000, as regards the rights and guarantees of when the passenger transport contract signed with the airline is reneging on grounds of delay, flight cancellation or breach of passengers. The full text of the new resolution is available (in portuguese) on the ANAC on the Internet: http://www.anac.gov.br/biblioteca/resolucao/2010/RA2010-0141.pdf

Source in portuguese: http://www.anac.gov.br/imprensa/direitoPassageiro.asp

USA: DOT Proposes Additional Consumer Protections for Air Travelers

U.S. Transportation Secretary Ray LaHood today proposed new consumer protections for air travelers, building on the Department of Transportation’s recent rule banning carriers from subjecting passengers to long tarmac delays and other deceptive practices.

Specifically, the new proposed rule would:

• increase compensation for passengers involuntarily bumped from flights
• allow passengers to make and cancel reservations within 24 hours without penalty
• require full and prominently displayed disclosure of baggage fees as well as refunds and expense reimbursement when bags are not delivered on time
• require fair price advertising
• prohibit price increases after a ticket is purchased
• mandate timely notice of flight status changes
  

Comments on the proposal are due in 60 days. The text of the proposed rule and comments are available on the Internet at www.regulations.gov, docket DOT-OST-2010-0140.

Source: DOT press release of June 2, 2010; find full text here>>.

USA: exemptions from new tarmac-delay rules denied

The U.S. Department of Transportation has denied the requests of five airlines for a temporary exemption from a new rule limiting tarmac delays to three hours. The new rule goes into effect on April 29. Airlines face fines of up to $27,500 per passenger for planes that sit on the tarmac for more than three hours.

Some airlines requested exemptions for New York's Kennedy Airport arguing their operations would be affected by a runway closure. Other exemptions were requested for neighbouring airports because delays at Kennedy would disrupt operations at the other New York-area airports.

The DOT said it received 125 comments from individuals on the carriers' requests for exemption from the three-hour rule, and that all but two opposed the requests.

Source: Travel Weekly; find article here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

Evaluation of Regulation 261/2004/EC

The final report (110 pages) as of February 2010 made by Steer Davies Gleave / London for the European Commission DG Transport can be found and downloaded here:

Report

USA: new legislation requires disclosure of airline fees

The Federal Aviation Administration reauthorization bill, passed by the Senate earlier this week, contains a new provision that would require airlines and online travel agencies to clearly disclose all fees associated with the cost of a ticket, including holiday surcharges, baggage fees and seat assignments.

The bill also includes the Passenger Bill of Rights, which mandates that aircraft cannot remain delayed on the tarmac for longer than 3 hours before having to return to the gate. Alternatively, the rule allows the airline to send buses to take passengers off the plane so the aircraft doesn't lose its place in line to take off.

In response to recent plane crashes, the bill also

• tightens pilot hiring, testing, training, and rest requirements for large and small airlines
• bans the use of personal electronic devices in the cockpit

The F.A.A. reauthorization bill now has to go into conference committee and be reconciled with the House version of the same bill.

Sources: New York Times "In Transit" Blog; find article here>>.
eTurboNews; find article here>>.

Spain: Court ruling on missed connecting flight and lost baggage

Plaintiffs purchased flight tickets from Barcelona to Mexico City via London. The initial flight to London took off 30 minutes delayed. As a consequence, plaintiffs missed their connecting flight to Mexico City. The airline placed the plaintiffs on an alternative flight, which arrived in Mexico City more than nine hours later than originally planned. On arrival a piece of plaintiffs' luggage was lost.

First instance court granted €1,200 in damages for the delay under EU Regulation 261/2004 and €1,150 in compensation for the lost suitcase, pursuant to Article 22 of the Montreal Convention.

On appeal of both parties, Barcelona Provincial Court ruled that

• the original flight could not be divided into two separate flights (ie, Barcelona to London and London to Mexico City), but must be considered as a whole (ie, Barcelona to Mexico City) compensate plaintiffs in the amount determined at first instance and
• compensation for material and non material damages together may not exceed the limit established in the Montreal Convention and again confirmed the amount of compensation determined at first instance.

Source (Copyright): ILO Newsletter; find article by Miguel Gordillo here>>.

Summary posted with kind permission of author and pursuant to ILO copy right information.

Sturgeon v. Condor: German Supreme Court grants compensation to plaintiffs

Following the preliminary ruling of the ECJ in Case C-402/07 - Sturgeon v. Condor, German Supreme Court (BGH) in judgement Xa ZR 95/06 delivered Feb. 18. 2010, granted plaintiffs' claim for compensation. BGH saw no reason for another reference for preliminary ruling as requested by Condor: there were no doubts that Reg. (EC) 261/2004 was valid and compatible with the Montreal Convention. ECJ had made clear that the Regulation provides for compensation in cases of inordinate delay if interpreted according to the principle of equal treatment.

As Condor had failed to prove extraordinary circumstances decision had to made in favour of plaintiffs.

Source: BGH press release 40/2010 of Feb 19, 2010. Find full text in German here>>.

Germany: new Supreme Court decision on liability under Reg. 261/2004

Plaintiff had booked a round trip flight FMO-FRA-GRU-FLN-GRU-MUC-FMO with defendant air carrier (LH). The section GRU-MUC was a codesharing flight with RG, recognizable by indication of both flight numbers (LH/RG) and the note "operated by RG". The flight GRU-MUC was cancelled and plaintiff rerouted to a later LH flight to FRA. Due to delayed departure of the latter flight of more than 4 hrs, plaintiff missed her connecting flight to FMO. As the next available flight FRA-FMO was also cancelled she was rerouted once more to CGN.

Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:

"Operating carrier" in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as "actual carrier" in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being "operating" same as well.

Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.

Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.

Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems - which due to its conclusions had caused the delay - had been of a nature that would constitute "extraordinary circumstances" under art. 5 par. 3 of Reg. 261/2004.

Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.

Brazil: One of every ten flights delayed over 30 minutes in 2009

Approximately one out of ten flights that took off from airports in Brazil in 2009 was delayed over 30 minutes (limit considered acceptable by the Brazilian Airport Infrastructure - Infraero). Despite the still high average of 11%, the National Civil Aviation Agency (ANAC) said the airline industry in the country increased its efficiency, whereas in 2008 the percentage was 17.5% and in 2007, 28.6 %.

Moreover, according to ANAC projection based on data from Infraero by the end of November, more than 126 million departures and landings must have been made in 2009, a number well above the 113.3 million recorded in 2008 and 110 6 million in 2007. Only until the beginning of December last year had already been made 115 million arrivals and departures.

According to the director president of ANAC, Solange Vieira, increased efficiency is due to several actions taken during the year. "Increased competition, since the largest number of companies and airports available, led to an improvement in service. The Aeroporto Santos Dumont (RJ) had a significant effect on this process, including releasing the Galleon for new flights. Moreover, ANAC taken steps to distribute the flights outside of peak hours and tailor the operational capacity of Guarulhos (SP), "he said in a statement.

According to ANAC, passengers better informed about their rights and obligations also contributed to the normal at airports. Among the largest airlines operating in the country, the monthly average of flights delayed more than 30 minutes in 2009 was: Webjet (13.1%), Gol / Varig (10.1%), TAM (10%), Ocean Air (8.3%) and Blue (8.1%).

Danilo M

Agency Brazil

Brasilia


Forwarded to IFTTA by Ronaldo Armond

USA: new DOT rule limits airline tarmac delays

Under a new rule the U.S. Department of Transportation will limit airline tarmac delays to three hours after which U.S. airlines must allow passengers to deplane. Airlines also must provide adequate food and water for passengers within two hours of a plane being delayed on a tarmac and maintain operable lavatories and must provide medical attention when necessary. .

The new rule will become effective in April and applies to domestic flights only. The rule may be obtained on the Internet at www.regulations.gov, docket DOT-OST-2007-0022.

Source: DOT press release; find full text here>>.

USA: passenger rights group sues Delta for alledged email hacking

FlyersRights.org sued Delta and an FAA contractor on Tuesday, alleging that the companies conspired to derail the group’s efforts to persuade Congress to enact a passenger rights bill that would limit tarmac delays to three hours.

The lawsuit, filed in U.S. District Court in Houston, alleges that Delta and the contractor, Metron Aviation of Dulles, Va., used "hacked" emails in an attempt to discredit the group and to fire a Metron employee who had been passingFAA data on delays to FlyersRights.org.

Source: Travel Weekly; find article here>>.

USA: DOT warns airlines to follow lost luggage-rules

In a newly issued notice, the U.S. Department of Transportation (DOT) reminded airlines that they may not arbitrarily limit compensation for passengers who purchase necessities because their baggage is lost or delayed. A number of carriers have policies stating that they will reimburse passengers only for buying necessities purchased more than 24 hours after arrival and limiting such reimbursements to the outbound legs of trips. This is in violation of DOT regulations which require that airlines cover all expenses caused by lost or delayed baggage up to $3,300 per passenger on domestic flights.

Source: DOT Office of Public affairs; read message here>>; DOT Guidelines on Reimbursement of Passenger Expenses incurred as a result of lost, damaged or delayed baggage available for download in pdf here>>.

USA: continuing debate on passenger rights

While the legal debate is continued, the National Business Travel Association last month switched its position and now supports federal legislation on airline passenger rights. Two airline CEOs speaking in August at NBTA's convention in San Diego disagreed with the need for such laws, which have been proposed by the U.S. Department of Transportation and Congress.

The Airline Passengers Bill of Rights would require airlines during lengthy delays to provide food, drinking water, clean restrooms and comfortable cabin conditions; airports to develop federally approved contingency plans for long delays; and DOT to establish a consumer complaint hotline.

Source: Management Travel; find article here>>.

Austria: no liability for depressive mood following massive flight delay

Plaintiff had booked a package tour to Turkey together with his wife and their two children. Because of technical problems, the outward flight to Turkey was delayed for 26 hrs. Plaintiff claimed that because of a depressive psychosis he was suffering from, the fligth delay had caused a depressive mood which had prevented him from enjoying his holidays. Even his wife had not been able to enjoy the holidays as she had to look after him. Both of them had hardly left the hotel room.

Back home in Austria he sued for compensation for loss of holiday enjoyment and some minor expenses he had had becuase of the flight delay.

Upon defendant's appeal Regional Court (Landesgericht Innsbruck) in judgement 2 R 170/09b of June 19, 2009 for the most part dismissed the claim: plaintiff had not mentioned his disease when booking the package tour and same had not been offered as being specifically suitable for mentally ill persons. The depressive mood therfore could not be regarded an adequate consequence of the flight delay. Plaintiff also had failed to explain why he needed specific care.

German Supreme Court (BGH): no price reduction for delayed flight

Plaintiff had booked a flight from Frankfurt/Main (FRA) to Phoenix (PHX) via Washington, D.C. (DCA). The flight from FRA to DCA was scheduled for departure on Oct. 7, 2006, 13:25 hrs. Departure was delayed to 17:00 hrs and plaintiff missed his conneting flight to PHX. He claimed for compensation under Reg. 261/2004 as well as price reduction.

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>>.

Cancellation or Delay - some 'Highlights' of Advocate General Sharpston's Opinion

...

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.

52. It is wholly unclear to me why this should be so ...

...

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

In Cases C-402/07 -Sturgeon and C-432/07 - Böck both related to the destinction of cancellation and (extra) long delay according to Reg. 261/2004, Advocate General Sharpston in her opinion delivered this morning pointed out that in the course of the legislative process, regardless the importance 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 was difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

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.

In regard to the excuse of extraordinary circumstances and technical problems she re-affirmed:

• 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>>.

Germany: another Supreme Court decision on a missed connecting flight

Following its decision of April 30, 2009, German Supreme Court(BGH) in a recent decision of May 28, 2009 (Xa ZR 113/08) confirmed that the miss of a connecting flight due to a delay of the feeding flight does not constitute "denied boarding" under Reg. 261/2004.

Furthermore there was no claim for price reduction based on the delay as a delayed fligth could not be regarded "defective". Plaintiffs therefore could only have sued for compensation of damages caused by the delay, which they, however, had not claimed for.

BGH therefore upheld the dismissal of the claim by the lower courts.

Source: BGH press relase of 28.05.2008; find full text in German here>>.