Come fly with me?

Environmental considerations aside, it seems that air travel is only becoming more popular. The abundance of cheap airfares to exotic locations, coupled no doubt with the often disproportionate cost of travelling by rail or car, has led to a steady increase in the number of people choosing to travel by air.

Recent statistics released by the department for transport, local government and the regions record some 203 million arrivals and departures at UK airports in 2005, with some 124 million passenger flights. But, as recent events have shown, not every journey by air runs smoothly.

Over the last few months alone, flights have been badly affected by increased security arrangements; three days of fog in December led to the cancellation of some 800 flights; and mountains of luggage are still belatedly making their way back to their owners after the breakdown of British Airways' luggage system at Heathrow. And at the end of January, many thousands of passengers were affected by the well publicised wrangles between British Airways and its cabin crew. But what rights do passengers have when things go wrong?

We have assumed here that the aggrieved passenger travelled with an air carrier operating under a licence from a state bound by the Montreal Convention. This successor to the Warsaw Convention was ratified by the US in September 2003, the 30th country to do so, allowing the

Convention to enter into force, as required by the Convention. The EU jointly ratified the Convention in April 2004 and it came into effect in all member states on 28 June 2004. Regulation 889/2002/EC, amending Regulation 2027/97/EC, aligned EU law with the Convention and provides for the Convention to cover air travel within a single member state as well as international travel. Where the Convention applies, no residual common law remedies remain.

So what rights does a passenger have? They fall into various possible categories:

(a) rights in cases of death or injury;

(b) rights in case of loss or damage to baggage; and

(c) rights in case of cancellation or delay to the flight.

Death or injury

A passenger who sustains death or bodily injury in an accident on board the aircraft or in the course of any of the operations of embarking or disembarking is entitled to compensation from the air carrier, see Art 17 of the Convention. The carrier is strictly liable for damages up to 100,000 special drawing rights (SDRs) '“ currently around £76,000.

For damages above this limit, the carrier is liable unless it can prove that such damage was not due to its negligence or that it was otherwise not at fault (see Art 21 of the Convention and Art 10 of the Regulation) '“ or unless it chooses to stipulate that its contract of carriage is subject to higher limits or indeed no limit at all. Under Art 20 of the Convention, the carrier can reduce its liability to the extent that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, and it would seem that contributory negligence can be a complete defence leading to the total exoneration of the carrier.

In Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72, the House of Lords approved the definition of an 'accident' applied in other contracting states as referring to an unexpected or unusual event or happening that was external to the passenger (flexibly applied after assessment of all the surrounding circumstances). That event must be other than the normal operation of the plane. As such, damage to ears caused by normal cabin pressurisation or deep vein thromboses caused in the normal course of a flight does not count as damage sustained in an accident. So too in Chaudhari v British Airways Plc [1997] EWCA Civ 1413, a passenger falling over solely as a result of his own partial paralysis was unable to point to an external event that could be called an accident.

It is also clear that 'bodily injury' does not cover psychiatric injury in the sense of mere shock or fright '“ see Morris v KLM Royal Dutch Airways [2002] AC 628 in the context of the old Warsaw Convention. But if an incident caused injury to the brain that manifests itself in psychiatric symptoms, that might be sufficient to ground a claim.

Once the passenger has established a right to compensation, the airline must make an advance payment sufficient to meet their immediate economic needs on a basis proportional to the hardship suffered within 15 days. This is not to be viewed as an admission of liability on the part of the airline, may be offset against subsequent sums paid, but is not returnable to the airline unless it is eventually exonerated under Art 20 of the Convention or unless it is shown that the passenger was not in fact the person entitled to compensation.

Under Art 35 of the Convention, any right to compensation is extinguished once and for all two years from the date on which the aircraft arrived or ought to have arrived. There are no exceptions and the courts have no discretion to extend time.

Loss or damage to baggage

If the passenger arrives in one piece but their luggage does not, there is a limited right to redress under Art 17 and 22 of the Convention (summarised in the annex to EC Regulation 889/2002). The air carrier is liable for baggage delays up to a limit of 1,000 SDRs (currently approximately £760) unless it took all reasonable measures to avoid it or it was impossible to avoid it.

If the passengers' baggage was checked in and is destroyed, lost or damaged, the carrier is liable up to the same limit irrespective of fault (unless it can show that the baggage was defective). If they did not check it in, the carrier is only liable if it is shown to be at fault. These limits do not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants, or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result, although this is a very high threshold to cross.

In all cases, passengers must write and complain to the carrier as soon as possible. Complaints must be made within seven days to complain if passengers' baggage was checked in and was damaged, or 21 days if it was delayed. Once again, any court proceedings must be commenced within two years of arrival of the aircraft or the right to claim is extinguished.

In case of cancellation or delay

There may be a scenario where passengers book their flight months in advance, make arrangements to be at the airport in good time before take-off, spend hours going through security and waiting at the gate, and then find that the flight is cancelled. Or, even more irritating, they discover that the flight has been oversold and they are the one staying behind. Rights for passengers travelling with any carrier on domestic and international flights leaving from any airport in the EU, plus those travelling into the EU on a European airline, took a big step forward in February 2005 (in theory at least) with the coming into force of EC Regulation 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

In cases of delays of more than two to four hours (depending on the distance of the booked flight), airlines must offer assistance in the form of adequate care, which covers free meals and refreshment in reasonable relation to the waiting time, hotel accommodation if the delay is overnight and transport to and from the hotel, plus two free phone calls, emails, telexes or faxes (see Art 9). For delays of more than five hours, you must be offered the choice between full reimbursement, a flight back to their original point of departure or re-routing on a different flight 'under comparable transport conditions' being 'adequately cared for' while awaiting the later flight.

Flight cancellations must lead to the provision of similar assistance, together with financial compensation under Art 7. This is between ‚¬250 and ‚¬600 (currently £165-£400) depending on the distance of the original flight. These sums can be reduced by 50 per cent in certain circumstances in the event of re-routing. However, if the airline has given you two weeks' notice, or has provided a suitable alternative flight under Art 5(c), no compensation is payable.

Where the airline has oversold its flight and is reasonably expected to deny boarding, it should first seek volunteers to stay behind in the first instance, in exchange for benefits. Once again, passengers should be offered the choice between reimbursement, a flight back or re-routing. If passengers were flying out of Heathrow but a suitable alternative is leaving from Gatwick, it is the airline that bears the cost of the transfer. There is no entitlement to an upgrade on a later flight even if passengers volunteer to be 'bumped' (although it never hurts to ask!) and the financial sweetener most airlines offer is small (although sometimes open to negotiation). If the airline does upgrade passengers, it cannot ask them to pay the extra (see Art 10). And if they are one of the unlucky ones who has paid for a better class of seat only to find that other passengers are downgraded, compensation of between 30 per cent and 75 per cent of the price of the ticket must follow within seven days.

If the airline denies passengers boarding against their will, the same right to financial compensation arises as if the flight had been cancelled. And, whatever passengers may be told at the desk, they cannot be required to accept any reimbursement in the form of travel vouchers unless they agree in writing.

However, as thousands of aggrieved passengers found out to their cost at the end of January when British Airways (BA) cancelled 1,300 flights in anticipation of the cabin crew strike, the extensive list of exclusions in para 14 of the preamble to the Regulation includes strikes. Strikes, like bad weather, security risks and flight safety issues, are classified as 'extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken'. With the aborted strike, which is estimated to have cost BA some £80m in lost sales alone, it is perhaps not surprising that airlines are so anxious to avoid paying compensation in such situations. And since these various circumstances must together account for the overwhelming majority of reasons why flights do not take off on time, an airline will frequently be able to avoid paying compensation for even the most prolonged delays.