Jenny Southan investigates the rules on compensation for flight delays and cancellations
There are few things more frustrating than being stuck at a terminal – or worse, on a stationary plane – and facing long delays or an overnight stay at the airport thanks to a cancelled flight. However, as regulation is complicated, few people know their rights as air passengers. Do a little research and you will quickly find yourself drowning in small print, and more often than not, there will be some kind of exemption that means you are not entitled to what you thought you were.
One of the most important things to be aware of is that your rights are not set in stone – they depend on which airline you are flying with and your point of departure. The European Commission’s regulation for denied boarding, cancellations and delays, which was introduced in 2004, protects only those passengers who are departing from an EU airport, or flying into the EU with a European carrier. It does not cover you if you are, for example, flying with Cathay Pacific to London from Hong Kong.
Outside the EU, protection is patchy. While the US, Brazil and Canada offer similar – but not as stringent – regulations, other countries may provide none at all, leaving you dependent on the quality of the airline. As Business Traveller’s Alex McWhirter points out: “Not all airlines are reputable so most of the time it will come down to their goodwill outside the aforementioned areas. And where compensation policies are in place, if you don’t adhere to the rules they will give you no sympathy.” So it’s worth being aware of check-in times and reporting deadlines for the gate before you fly.
For most travellers, the first step to enlightenment is the European Commission posters that should be displayed throughout airport terminals, outlining what you are entitled to if you are denied boarding because of overbooking, or if your flight is delayed or cancelled. In certain situations you can demand your right to care – food and drink vouchers and two phone calls, faxes or emails for flights delayed by more than two hours, and hotel accommodation and transfers if you are stranded overnight. But what about refunds and compensation?
Last November, the European Court of Justice ruled that delays of three hours or more were to be treated in the same way as cancelled flights. This means passengers can claim €250-€600 in compensation depending on the length of delay and the distance between destinations, provided the reason for the delay is within the airline’s control – the real deal-breaker. The ruling has been criticised by the airlines, who say it could cost them up to €5 billion a year, forcing them to increase ticket prices. But they are not required to publish what they pay out.
Actually getting your hands on compensation is fraught with problems. Every case is unique and carriers can avoid paying on the grounds that they are not responsible for the delay or cancellation because of “extraordinary circumstances”, such as bad weather or lack of a slot. What’s more, there is no independent body to monitor the reasons they give for disrupted services.
Airport staff can also be unhelpful. Passengers may not be given clear, honest information about the cause of the problem, which makes it difficult to resolve the case afterwards. Most people will be told to apply for compensation or a refund through the carrier’s customer services department once they get home, but for many this will prove to be far from fruitful – as I was to discover after a recent Easyjet flight from Nice to London was cancelled (visit businesstraveller.com/tried-and-tested for a review).
When I contacted customer services I was told: “The flight was not cancelled, it was rescheduled for the following day owing to air traffic control slot problems… so you are not eligible for compensation because it wasn’t anything to do with Easyjet.” The agent added: “Quite often, people are given incorrect information at the airport. It may sound a bit stupid and a bit cruel but they do this just to get rid of you. [Saying there is] a technical problem is usually the easiest way.”
James Fremantle is industry affairs manager for the Air Transport Users Council (AUC), which gives advice and pursues claims free of charge for any passenger who has suffered a problem at a UK airport. He says: “Technical failures are a bit of a grey area – we would argue it was in the airline’s control, and they would argue it’s not, so sometimes they pay out and sometimes they don’t. In the end it’s less about the reason written down and more about how the regulation is interpreted.” He adds: “Unless a passenger comes to us or goes to court they generally won’t get any compensation because the airlines will interpret the regulation the way they want to.”
If a passenger has made a formal claim for compensation to an airline that is rejected, they can submit their case to the AUC for investigation. But out of the 1,968 people who filed complaints about cancelled flights to the council in 2008-09, only 128 were awarded any money. Fremantle says: “If you look at the number of complaints that weren’t made to us [ie, directly to the airline], the percentage [of successful claims] would be even smaller – about 1 per cent, perhaps. It shows how difficult it is for passengers to get compensation even when we get involved.”
Online sites such as euclaim.co.uk can also help you get compensation. Fremantle says: “EU Claim will take a cut [27 per cent plus an administration fee] but it does have lawyers who are likely to pursue it more strongly than we would.”
So how do the airlines get away with not paying up? Fremantle says: “We could argue it’s a lack of enforcement from EU member states over the 2004 regulation. Unless someone fines the airline for breaching the regulation they will keep on trying to get away with it, because it’s a lot of money and they won’t pay out unless they have to.”
All EU member states are responsible for making sure airlines pay up when they are supposed to, while the UK Civil Aviation Authority (CAA) could fine an airline £5,000 for every passenger it failed to give compensation to. But there appears to be no record of any UK airline being fined in this way.
A CAA spokeswoman says: “We don’t want to seem heavy-handed with the aviation industry. It’s much better to understand why [the delay or cancellation] happened and how to help passengers moving forward rather than fine someone on the spot. That tends to be the route that is taken so it wouldn’t surprise me if we hadn’t ever fined an airline because we feel it’s a more sensible approach to work with them.”
While this may sound gloomy, EU passengers can reassure themselves that the situation is worse elsewhere. Fremantle says: “As far as we know there is no similar body in the world to the AUC. The US Department of Transport does not mediate on behalf of passengers – it just collects data and publishes complaints it has received.”
The Montréal Convention, which was introduced in 2003 and is compatible with EU law, is designed to cover death or injury to passengers, delay and loss of baggage at an international level, and claims for compensation can be made under it. However, most of the time you will be at the mercy of the airline you are travelling with, and claims will need to be made through them first, so the chances are that’s as far as you’ll get with it as the process is so
time-consuming and difficult.
Kate Hanni is founder of flyersrights.org, the “largest non-profit airline consumer organisation”. She is campaigning alongside Hendrik Noorderhaven, chief executive of EU Claim, to launch a worldwide passenger rights group “committed to uniform standards for airlines across the globe”.
Hanni started flyersrights.org after an incident she experienced in 2006. “My family and I took off from San Francisco to Mobile, Alabama with American Airlines and were diverted to Austin, Texas,” she says. “We were told we would be sitting on the ground for a few minutes and a few minutes became nine hours, with overflowing toilets, no food, no water, people making nappies for their babies out of T-shirts, diabetics in shock and men breaking out in fist-fights. It was horrific.”
Hanni has been working hard to tackle the problem of long tarmac delays in the US. “We call it the ‘Welcome to our country’ award – you may have your freedom once you get off the plane but right now you have fewer rights than a prisoner of war under the Geneva Convention. If you bug the flight attendant too much or raise your voice they will have you arrested – it happens here all the time.”
And needless to say, these passengers will receive no compensation. According to the US Department of Transportation: “Each airline has its own policies about what it will do for delayed passengers waiting at the airport – there are no federal requirements. Contrary to popular belief, airlines are not required to compensate passengers whose flights are delayed or cancelled. Compensation is required by law only when you are ‘bumped’ from a flight that is oversold.”
Hanni is also campaigning for basic human standards when passengers are held on the tarmac – standards that are often lacking because domestic US services of 90 minutes or less are not always stocked with food and drink. “Passengers should have access to potable bottled water, adequate food, hygienic toilets, temperature control, their medications and clean bins at all times if they are stuck inside an aircraft,” she says. “You don’t have these problems to this extent in the EU and I think it’s because of the 2004 regulation – you have fines in place when the airlines do not provide those things.”
The first pay-off for Hanni’s efforts was set to come into effect on April 29, when the Department of Transportation was to impose a passenger bill of rights for tarmac delays of more than three hours on domestic flights. If requested, airlines will have to let people off the plane either by returning it to the gate or sending a bus. If they fail to comply they will face fines of up to US$27,500 per passenger.
Many carriers are demanding to be exempt because of, for example, construction work on the main runway at New York JFK. An American Airlines spokesperson says: “The recent legislation will affect all airlines owing to the level of fines involved. Airlines fear they will be forced to cancel flights pre-emptively rather than risk fines. Consequently, the new legislation could increase the disruption experienced by travellers.”
Hanni is unrepentant. She says: “What is happening on April 29 is a start but we are not done – we are going to have to get international flights included. That means our Bureau of Transportation Statistics would have to start forcing international carriers, as well as our domestic carriers that fly internationally, to report these long tarmac delays, and that will require a law to be passed. We have started a lobbying campaign but it could take another two years unless there is a lot of international outcry.”
In the meantime, what can travellers do to empower themselves? Hanni says: “The best thing a passenger can do is to take pictures and videos of their experience and upload them to our website because the media has become somewhat numb to these stories unless they are accompanied by some kind of audio recording, video or photograph.
“The second thing they should do is call our hotline [+1 877 359 3776] as we can instruct them on what to do. We’re committed to making sure they are being taken care of and helping them to be compensated either through the Montréal Convention or EU regulation.” And before you travel, read up on your rights.
