International aviation law

Claim 1

Ans#1. ever since ec Regulation 261/2004 on denied boarding, cancellations and delays came into force, a key question has been when a delay is in reality a cancellation: key because it makes the difference between whether or not the passenger is entitled.1. To give a name or title to.2. To furnish with a right or claim to something: to compensation. Now that distinction is under threat.The Advocate General to the european court of Justice (ecJ) has recently published an Opinion in two joined cases referred by the German Federal court of Justice and the Vienna commercial court. (Rosenberger, Schaefer, Goldsman, Johnson, Anton, George , 2002, 357) The cases requested clarification of the distinction between "delay" and "cancellation" under Regulation 261/2004. The trouble with referring questions on the proper interpretation of Regulation 261 to the ecJ is that one often gets more than one bargained for.

That was the case with the ecJ's decision in late 2008 in Wallentin which has made life extremely difficult for carriers seeking to rely on a defence of "extraordinary circumstances ciRcUMsTANces, evidence. The particulars which accompany a fact.2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or “when flights are cancelled for technical reasons, and it threatens to be the case here too. (Rosenberger, Schaefer, Goldsman, Johnson, Anton, George , 2002, 357) For, as well as examining the vexed question VeXeD QUesTiON, vexata quaestio. A question or point of law often discussed or agitated, but not determined nor settled. of when a delay becomes a cancellation, the Advocate General's approach threatens a wholesale reopening ReopeningTreasury offerings of additional amounts of outstanding issues, rather than an entirely new issue.

A reopened issue will always have the same maturity date, cUsiP number, and interest rate as the original issue.in both these cases heard by the ecJ, the claimants (Tom and Chabanna) had argued that their flights had in reality been cancelled rather than, as the carriers argued, delayed and that they were accordingly entitled to compensation under Article 5 of Regulation 261. The ecJ was accordingly asked questions aimed at assisting in determining whether a flight has been delayed or cancelled for the purposes of the Regulation. (Rosenberger, Schaefer, Goldsman, Johnson, Anton, George , 2002, 357)When is a delay a cancellation? The Advocate General acknowledged that there are a number of factors which might, in any particular case, indicate that a flight has been cancelled rather than just delayed.

Those include: change of air carrier, change of aircraft, change of flight number, change of airport of departure or arrival, issuing new boarding passes, requiring new check-in, description of the flights as "cancelled" by flight crew or customer service representatives.The more of these factors that are present, the more likely it is that the flight has been cancelled rather than delayed; however, the Advocate General's view is that no one of these factors can, on its own, be conclusive Determinative; beyond dispute or question. That which is conclusive is manifest, clear, or obvious. it is a legal inference made so peremptorily that it cannot be overthrown or contradicted.each national court has to decide the question weighing the factors in each case, thereby leading to considerable legal uncertainty.

As to whether the length of the delay should be determinative, the european commission european commission, branch of the governing body of the european Union (eU) invested with executive and some legislative powers.1. exceeding reasonable limits; immoderate.2. Not regulated; disorderly. "Delayed, it is difficult to maintain that it is still the "flight which was previously planned". However, there is nothing in the regulation which assists with deciding when a delay has become "inordinate" and the Advocate General was unwilling to read into the Regulation a specific time limit which is simply not there, regarding this as another instance of the Regulation leading to undesirable unpredictability and legal uncertainty. (Loughmiller, 2008, p44-45) On the central question "when is a delay a cancellation?", the Opinion therefore takes matters not a great deal further except to confirm that each case has to be considered by national courts on its own particular facts.However, as noted, the distinction is important because of the availability of compensation for cancellation but not for delay; the Advocate General sought to understand the rationale for that and concluded that it has no logic. The stated aim of the Regulation was enhanced consumer protection for passengers; there appears to have been a view that airlines are responsible when they cancel flights and inconvenience passengers and so should pay compensation but that they are not always responsible for delays and so should not have to compensate passengers for that. (Loughmiller, 2008, p44-45)

Claim 2

Ans#2.

1. To conceive an image or a picture of, especially as a future possibility: envisaged a world at peace.2. circumstances in which delayed passengers are inconvenienced far more than those whose flight has been cancelled: for example, following a flight cancellation, passengers might be re-routed promptly by the airline such that they suffer little disruption disruption /dis•rup•tion/ (dis-rup´shun) a morphologic defect resulting from the extrinsic breakdown of, or interference with, a developmental process. (Loughmiller, 2008, p44-45) To original schedule; a flight delay may, however, not be resolved for many hours with the result that the delayed passengers are put to much greater inconvenience, expense and disruption. Despite that, the delayed passengers receive no compensation whilst those whose flight was cancelled do.in the view of the Advocate General, the underlying rationale of the Regulation was that, where the airline was not responsible for the passengers' inconvenience, it should not have to pay compensation but that, where the airline is responsible, it should have to pay. if that is correct, there is absolutely no reason to distinguish between delayed and cancelled flights. (Loughmiller, 2008, p44-45) An airline may be at fault for a cancellation or not; it may equally be at fault for a delay, or not. in the Advocate General's view, affording different remedies to passengers in those circumstances breaches the fundamental eU law principle of equal treatment: passengers in a comparable situation are being treated differently to the advantage of one category (those whose flights are cancelled) and the disadvantage of the other category (passengers whose flights are subject to long delays).

That raises significant doubts as to the continuing legal validity of the distinction between delay and cancellation in regulation 261.What happens next? The Advocate General has recommended that the cases be reopened so that proper submissions on this important issue can be made by the member states, the european commission and the european Parliament european Parliament, a branch of the governing body of the european Union (eU). (Loughmiller, 2008, p44-45) it convenes on a monthly basis in strasbourg, France; most meetings of the separate parliamentary committees are held in Brussels, Belgium, and its secretariat is located in Luxembourg. . it seems likely that will happen although the ecJ will need to accept the Advocate General's opinion first. Of concern for carriers is how this process then develops.

There are two possibilities. First, the commission and the Parliament might argue successfully that there is a sound legal justification for continuing the distinction between cancellation and delay and requiring the airlines to compensate for one but not the other. On the other hand, the eU legislators might just seize with both hands the opportunity afforded to them to re-open the regulation and to argue successfully for the introduction of compensation for delays as well as cancellations.

That would not introduce new compensation obligations for carriers overnight but it could very well be the start of a process which results in that. (Loughmiller, 2008, p44-45)On 16 August 2004 the Department for Transport launched a consultation paper seeking views on a set of proposed enforcement Regulations to be put in place in the eU to ensure compliance with Regulation (ec) No.261/2004 on compensation and Assistance to Passengers in the event of Denied Boarding, cancellations and Long Delays (the council Regulation). The closing date for receipt of responses was Monday 8 November 2004. By 15 November, nineteen responses had been received, eight from individual airlines, seven from industry representative bodies, and one each from the civil Aviation Authority (cAA), the Air Transport Users council (AUc), the confederation of european industry and one private individual. (Loughmiller, 2008, p44-45)

Key issues

1. Recording And Retaining information Relating To The council Regulation

Under enforcement Regulation 3, airlines would be required to retain certain information relating to implementation of the council Regulation, specified by the cAA, for a minimum period. This proposal provoked considerable opposition from airline and industry representative bodies. six respondents considered that this requirement went beyond the obligations imposed by the council Regulation and was therefore disproportionate.eight respondents agreed that the broad wording of this requirement would impose an onerous burden on carriers, as much of the information that would need to be kept is not currently held by airlines. (Loughmiller, 2008, p44-45 )it was suggested by a number of respondents that if such information were to be required to be held, this should be limited to those records currently kept for business purposes.Two respondents highlighted the potential cost and complexity of developing and maintaining an appropriate recording system, and it was argued that before introducing such a requirement a full cost impact assessment should be carried out by the Department.On the question of the retention period for such records, five respondents considered two years to be an appropriate length of time, two suggested one year would be adequate, and one respondent considered that one week would be sufficient unless a claim/complaint had been logged within that time. (Loughmiller, 2008, p44-45)Government response: it is accepted that the original wording of regulation 3 was broad in its scope.

The aim was to ensure that the enforcement body would have at its disposal sufficient information to determine whether there was evidence of persistent non-compliance with the provisions of the council Regulation. However, in view of the legitimate concerns raised by the industry, and having been satisfied by the cAA that enforcement would not be compromised without a specific obligation on carriers to collect and retain such information, the Government has decided to delete regulation 3 in its entirety. (Loughmiller, 2008, p44-45) Under the new proposals it will be a matter for individual airlines to decide how much information to collect and retain, with an eye to rebutting any future allegations that they are not meeting their obligations under the council Regulation.

2. Appropriateness Of sanctions

Responses to the question about the appropriateness of the proposed criminal sanctions for non-compliance with the provisions of the council Regulation were divided. Passenger representatives felt that the sanctions should be sufficient to incentivise airlines to comply with the council Regulation and that if these were not sufficiently dissuasive an airline might choose to accept the risk of a small fine rather than pay compensation to large number of passengers. (Jarrah, Gang, Nirup, Ananda 2006, 266) Further, it was argued that in addition to the penalties imposed for non-compliance, airlines should also be required to pay any outstanding compensation to those passengers to whom compensation was still owed.in contrast, airline respondents generally considered the imposition of criminal sanctions to be inappropriate and pointed out that passengers already have civil remedies available to them to recover damages for care and assistance not provided. seven industry respondents argued that a number of the obligations created were either ambiguously drafted or could be impossible to comply with for logistical reasons. in the circumstances, the airline respondents argued that it would be unfair to make non-compliance with such provisions a criminal offence. (Jarrah, Gang, Nirup, Ananda 2006, 266)One respondent considered that the concept of bringing a criminal action against Directors or employees of an airline for non-compliance to be out of proportion to that necessary to enforce the council Regulation.

Five respondents, (all airlines or industry representatives) felt that the level of fines proposed were disproportionate to the offences committed, arguing that the obligations imposed by the council Regulation were sufficiently dissuasive to made additional criminal penalties unnecessary. (Jarrah, Gang, Nirup, Ananda 2006, 266)Two respondents suggested that the level of fines should be capped. One airline respondent conceded that an unlimited fine may be appropriate in the event of wilful non-compliance, but not where it was impossible for the airline to comply.Finally, four respondents argued that the sanctions imposed by Member states should be consistent across the european Union and to this end the eU should consider administrative sanctions rather than criminal penalties.When reading the terms and conditions of a flight booking, it may seem at first glance that all Sudesh and Saida have is the right to remain silent and seated. But Sudesh and Saida actually have far more rights, courtesy of european Regulation ec 261/2004. These apply to all airlines based in the eU - and all those flying to and from the eU. so, in short, if Sudesh and Saida are flying into or out of ireland, whether on Aer Lingus, Belavia or Delta, these are your rights (under normal circumstances):

Your Right To information

Your rights as an air passenger must be displayed at check-in. And should your flight be delayed by more than two hours, or Sudesh and Saida are denied boarding, Sudesh and Saida have to be given a written statement of your entitlements.

Your Rights if Denied Boarding Due To Overbooking

if an airline has overbooked a flight and all passengers actually show up - well, what a surprise! in this case the airline has to ask for volunteers to stay behind.Apart from any compensation agreed between the volunteer and the airline, these passengers are entitled to alternative flights or a full refund. (Jarrah, Gang, Nirup, Ananda 2006, 266)should there be no volunteers, the airline can refuse boarding to some passengers. These must be compensated for their denied boarding. Depending on the length if flight Sudesh and Saida can claim between € 250 and € 600.

You must also be offered an alternative flight or a full refund. if an alternative flight is not available within reasonable time, Sudesh and Saida may also be entitled to overnight accommodation, a free meal, refreshments and a telephone call.Your Rights if Your Flights are Delayedec 261/2004 defines your rights in case of a longer delay. 15 minutes or so (actually the "normal delay" at Dublin Airport) do not count.You are eligible for compensation after the following delays:

• two hours if your flight is less than 1,500 km,
• three hours for flight distances within the eU greater than 1,500 km or flights to/from outside the eU spanning less than 3,500 km,
• four hours for all flights further than 3,500 km. (Jarrah, Gang, Nirup, Ananda 2006, 266)

if any flight is delayed longer than five hours Sudesh and Saida are automatically entitled to reimbursement if Sudesh and Saida decide not to fly.Your airline has to provide a free meal and refreshments after these delays, as well as a free telephone call and even free accommodation and transport if the flight is delayed overnight. (Jarrah, Gang, Nirup, Ananda 2006, 266) in addition the Montreal convention provides for possible financial compensation if Sudesh and Saida can prove that the delay has caused Sudesh and Saida a loss.

Claim 3

Your Rights if Your Flights Are cancelled

Ans#3. Advise Sudesh and Saida flight cancelled? in this case the options are easy - you can choose between a full refund or a rerouting to your final destination. in addition you are entitled to free meals, refreshments and a telephone call. if your flight is cancelled at short notice you may also be entitled to € 250 to € 600 compensation.

exceptions ... As Usual

Have you ever wondered why nobody in "Die Hard 2" asked for a free meal? easy - there are extraordinary circumstances under which an airline could never be expected to operate within normal parameters.Generally speaking you are not entitled to anything in cases of delays or cancellations caused by

• political instability,
• bad weather,
• a security risk,
• an unexpected flight risk or
• strikes.

in short - if you find yourself in a war zone or the eye of the hurricane, a flight delay should really be the least of your worries. (Rosenberger, Johnson, George, 2003, p408-421)

The Montreal convention - Further Rights

in addition to the above rules, the Montreal convention still applies. if you suffer death or injury during Advise Sudesh and Saida flight, Advise Sudesh and Saida (or surviving next of kin) are entitled to compensation, however low that might be. in the far more frequent case of lost, damaged or delayed luggage you can demand up to 1,000 special Drawing Rights, an artificial "currency" created and controlled by the international Monetary Fund. Advise Sudesh and Saida will have to get your written claim in within 7 (damage) or 21 (delay) days.

Looking Out For Number One - Airline style

Take any budget airline like ireland's Ryanair - these guys will fly you for a song and a prayer. Or less. Relying on "other business" to cash in. Like selling Advise Sudesh and Saida food and drinks. Obviously giving away these for free does not fit into the business model. so compensation is likely to be avoided like the plague if at all possible.

Which may lead to dodgy practices. Like shepherding passengers onto a plane that is nowhere near to start. (Rosenberger, Johnson, George, 2003, p408-421) There might be valid reasons behind this. And there might be valid reasons why Advise Sudesh and Saida were not offered compensation.

But if in doubt ... complain. First with airline personnel. if that doesn't work, contact the authorities. Airlines can only continue to offer bad service if we, the passengers, stay mute.

References

Jarrah, Aumad I. Z.; Yu, Gang; Rishnamurthy, Nirup K.; Rakshit, Ananda. 2006. A Decision Support Framework for Airline Flight Cancellations and Delays. Transportation Science, Vol. 27 Issue 3, p266, 15p;Rosenberger, Jay M.; Schaefer, Andrew J.; Goldsman, David; Johnson, Ellis L.; Kleywegt, Anton J.; Nemhauser, George L., 2002.

A Stochastic Model of Airline Operations. Transportation Science, Nov2002, Vol. 36 Issue 4, p357, 21p.Rosenberger, Jay M.; Johnson, Ellis L.; Nemhauser, George L., 2003. Rerouting Aircraft for Airline Recovery. Transportation Science, Nov2003, Vol. 37 Issue 4, p408-421, 14p;Loughmiller, John, 2008.

Boeing's Dreamliner Struggles: Surprise OR Predictable? Design News, Vol. 64 Issue 8, p44-45.