PASSENGER RIGHTS
By
P.P.C. Haanappel
At the Gdansk Air & Space Law
Conference 2013
Passenger rights as a contractual issue
• The contract of carriage between airline and
passenger
• International Air Traffic / Transport Association
(IATA) / Airline Conditions of Contract and
Carriage
• First IATA Conditions in 1927 (Vienna
Conditions)
• Substantially revised in the so-called Bermuda
Conditions of the year 1949, and thereafter
Freedom of contract
• A fiction
• Inequality of bargaining power
• State / (inter)governmental intervention
First international intervention
• The Warsaw Convention on air carrier’s
liability of the year 1929
• Quid pro quo: limited liability of the air carrier
in exchange for presumed liability of the
carrier
The difficult area of delay in the
Warsaw Convention
• Article 19 of the Warsaw Convention
• Clause 9 of the (former) IATA Conditions of
Contract
• Conflict: some regulators and courts intervene
• E.g., Swiss government
– US CAB (Civil Aeronautics Board)
– German Bundesgerichtshof
– The problem of delay continues to plague us!
Montreal Convention 1999
• The regime for delay (Article 19) remains
substantially the same, in comparison with the
Warsaw Convention; the amount of damages
is expressed in SDRs (max. 4150 SDR = approx.
3650 Euro)
• The problem remains that denied boarding
compensation (DBC) and flight cancellations
are not covered by the Warsaw / Montreal
conventional system
Denied Boarding Compensation
• Problem originates with computerized
reservation systems (CRS)
• Overbooking and “no shows”
• The US Civil Aeronautics Board first intervenes
in the 1970s: Part 250 CFR (Code of Federal
Regulations)
• The EU first intervenes in 1991: Regulation
295/1991 on DBC
EU Regulation 261/2004
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Extended from DBC to also:
Flight cancellations;
Long flight delays.
Compatibility, in the area of delay, between
Regulation 261 and the Montreal Convention?
• Initial attitude;
• Judicial “activism” in the European Court of
Justice: the Sturgeon and TUI cases of 2009 and
2012
Revision of Regulation 261
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Commission proposals in 2013
Action in the European Parliament 2014
The role of National Enforcement Bodies (NEB)
Can the new text solve the legal conflict between
the European Regulation and the worldwide
system of Article 19 of the Warsaw / Montreal
conventional system?
• The new German legislation in the Gesetz zur
Schlichtung im Luftverkehr (Act on dispute
settlement in air transport), in force 1-11-2013
Other aspects of passenger rights
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Voluntary or compulsory system
The European Civil Aviation Conference (ECAC)
The European Union (EU)
Other jurisdictions
Proliferation of different sets of
passenger rights
• Conflicts of law and policy
• Is a worldwide solution desirable and feasible?
The International Civil Aviation
Organization (ICAO)
• Solution through Annex 9 on Facilitation?
The International Air Transport
Association (IATA)
• Solution through the Passenger Services
Conferences?
The issue of consumer / user input
• The issue of global representativeness
Conclusion
• Questions?
• Discussion?