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Qantas punished by US Government over delays to Brisbane bound flight

Qantas flight QF008 was delayed for 4 hours before take-off from Dallas, Texas to Brisbane on 21 March 2013, and this has resulted in the airline being fined $90,000 in civil penalties for failing to tell passengers they could get off the aircraft during the tarmac delay. In the first consent order published by the United States (US) Department of Transportation (DOT) Office of the Secretary in Washington DC for 2014, on 15 January 2014 Qantas was ordered to pay the fine and cease and desist from future similar violations.

The US has tight federal regulations to minimise tarmac delays which both strengthens consumer protections for air travellers, while at the same time punishing airlines for transgressions. In addition to guaranteeing essential human needs like food and water during long delays at airports trapped within aircraft, the US laws transparently provide consumer protections for air travellers in relation to minimum denied boarding compensation, air ticket advertising, baggage and other fees, post-ticket purchase price increases and prohibitions from airlines restricting where a passenger may sue an airline over such consumer issues.

These protections are in addition to the protections afforded international passengers which require airlines to compensate passengers for their proven losses caused by delays under the Montreal Convention of 1999 (MC99). Unlike an analogous European aviation regulation (EC 261/2004) which provides a parallel source of compensation for long delays/cancellations of certain flights, the US legal regime is considered to conflict less with international law in that it operates punitively on airlines, rather than results in an alternative source of compensation to passengers, and arguably thus conflicting with MC99.

The US rules, initially brought in by the US DOT in 2009, were strengthened progressively in 2011 and 2012, and require airlines to report delays and other data (typically where there has been a tarmac delay of longer than 3 hours when the aircraft doors are closed). Section 259.4(b)(2) of the federal statute requires air carriers to give passengers on international flights an opportunity to disembark before the flight has been on the tarmac at a US airport for more than 4 hours. Section 259.4(b)(6) requires that carriers announce this fact when at a gate or another disembarkation area with the aircraft doors open, if the opportunity to leave the plane actually exists.

In this instance, QF008 was scheduled to depart at 10:00am local time and pushed back from the gate at 10:41am. It returned to the gate following the Captain receiving mechanical alerts, so the plane was checked, then pushed back again. The alert came back so the aircraft returned to the gate and the aircraft door was opened while it remained at the gate. However, Qantas personnel failed to tell passengers they could deplane, as required under US law. Qantas argued that it did all it could to ensure the comfort of its passengers during the delay period (eg, providing food, water and lavatories) but, following consideration of these mitigating reasons, the DOT Aviation Enforcement and Proceedings ordered the fine saying Qantas breached the federal statute by not clearly telling passengers they could disembark; that the breach constituted “unfair and deceptive practices and unfair methods of competition”; and, was ordered to cease and desist from further violations and to pay a fine as a deterrent to similar future unlawful practices by Qantas and other airlines.

The fine is broken down so that $45,000 must be paid within 30 days and the other $45,000 will become immediately payable if within a year (ie, before 15 January 2015) Qantas violates the law by breaking the cease and desist order in the US.

In a double slap in the face for Qantas, the flight itself had to be cancelled by the airline because even though the fault was rectifiable, the flight duty limitations of the crew were insufficient to make the crossing of the Pacific legally.

Written by Shine Lawyers. Last modified: January 16, 2014.

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