Affected by flight disruptions? Here are your rights
As travel chaos in Bali moves into its sixth day, Shine Lawyers Aviation Law Expert Thomas Janson outlines the rights and compensation entitlements of Australian passengers affected by flight delays and cancellations.
As a dangerous ash cloud moves over Denpasar, hundreds of international flights have been grounded, leaving thousands of holiday makers stranded and out of pocket.
When a crisis like this hits, passengers are often left angry and unclear as to what their rights are. Below, we explain what passengers could be entitled to and how they should go about accessing this compensation –
I’ve been impacted by a flight delay or cancellation – is the airline liable?
International flights i.e. flights from Australia to Indonesia, Indonesia to Australia
If you have booked an international flight from Australia to Indonesia or return, an international treaty known as the Convention for the unification of Certain Rules Relating to International Carriage By Air (signed at Warsaw on 12 October 1929) known as the Warsaw Convention 1929 applies.
Domestic flights i.e. internal flights within Indonesia
If you have booked a flight within Indonesia then, Indonesian law will often apply to the flight delays. The rest of this article will only deal with flight delays in relation to international flights (i.e. from Australia to Indonesia).
Liability in relation to international flight delays
Under Article 19 of the Warsaw Convention, an airline is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.
However, under Article 20 of the Warsaw Convention, an airline is not liable if it proves that the airline and its agents have taken all necessary measures to avoid the damage or that it was impossible for the airline to take such measures.
This will be up to the airline to prove that it has taken all necessary measures to avoid the damage to passengers in terms of loss of airfares, hotel bookings etc or that it was impossible for the airline to take measures.
What are my rights and how do I go about exercising them in relation to international flight delays?
The best approach in dealing with this issue is to consult the Conditions of Carriage of the airline you were scheduled to fly with when you encountered the flight delay or cancellation.
The Conditions of Carriage will often outline a process that the particular airline will follow in respect of dispute resolution.
You should then then notify the airline’s registered office or company headquarters in writing as soon as possible, outlining the circumstances of the flight delay or cancellation, and request compensation commensurate with your loss in terms of air fares, accommodation, loss of income etc.
Remember to attach all relevant receipts and invoices demonstrating your loss.
Should you not receive commensurate compensation, you then have the choice of choosing whether to proceed with litigation.
As soon as you believe you could be entitled to compensation against an airline, you should always consult the Conditions of Carriage and the Warsaw Convention 1929, an international convention that may apply to automatically make airlines liable to pay compensation to delayed passengers. This will usually be to the extent that the passenger can prove loss or damage.
In order to bring litigation in terms of flight delays and cancellations or damage to baggage, you must satisfy one of four criteria in respect of where to bring a legal claim according to Article 28 of the Warsaw Convention 1929 –
- The airline’s principal place of business;
- The court of the domicile of the air line (e.g. before the courts of the country in which the airline is based);
- Where the airline has a place of business and through which the contract between the passenger and airline was made; and
- The court at the place of destination of the ticket.
A passenger will often claim under category (3).
You should keep in mind that you must satisfy one of the above criteria in bringing a legal claim to make sure that you have chosen the correct place to bring a legal claim. Otherwise a court may ‘strike out’ or remove the proceedings entirely.
Generally, very few consumers are aware of the legal protections that are available to them.
In my experience, where a passenger consults these documents and informs the airline in time and with appropriate documentation, they are usually successful in securing compensation, however, the degree of compensation will vary case to case.
In certain circumstances, such as where there has been severe flight delays or cancellations, injury or death, then I would recommend that you consult a legal practitioner as the compensation offered by an airline’s insurer may not always be fair value.
I would encourage all passengers to consult the Conditions of Carriage of the airlines they travel with and be aware of the protections offered under the Warsaw Convention 1929 to ensure they are aware of their rights, and take out appropriate comprehensive travel insurance.