Even if you have carefully planned your air travel, there's no absolute assurance that things can't go wrong. Problems like political instability, bad weather, overbooking or simple snags like security checks can all mess up your holiday or business arrangements. Just this week, a lot of passengers in Europe experienced flight delays and some cancellations as heavy snowfall in the region resulted in authorities shutting down airports.
You should keep in mind that in times when your business trips and holidays are spoilt because your plane leaves late, or the flight gets cancelled, you may be entitled to monetary compensation and care.
Some of the remedies you are entitled to can either be in the form of cash, hotel stay, meals and refreshments, free re-bookings, ticket refunds or free tickets. However, it is never a straightforward situation. There are no clear-cut rules and there are grey areas that you need to be aware of. The best you can do is orient yourself in the labyrinth of legislations and regulations, so you have a fair idea of what you're getting into the next time you fly.
For one, airlines follow different rules, so passengers' rights can vary depending on the circumstances, the point of origin and destination of the flight, nationality of the carrier, length of delay, or distance between the point of origin and destination. On the flip side, airlines can even dodge compensation claims, on a case-by-case scenario.
If you fly to and from the European Union (EU), you may have a good shot at getting some monetary compensation if your flight is cancelled. (See table for details.) Delays, however, are not expressly compensated for under the EU rules, but passengers have the right to care and reimbursement of the part or parts of the unfulfilled journey. But even these provisions are not absolute as the distinction between delay and cancellation in the EU rules has been subject to disputes.
Regulations
European airlines are always regulated by EU rules, even if they're flying outside the EU. Similarly, EU regulations also apply to any carrier, irrespective of its nationality, flying to or from an EU airport.
Passenger rights involving non-EU carriers that don't fly to and from an EU airport are regulated under international conventions, which can be Warsaw or Montreal (liability for damage in both Emirates Airlines and Etihad Airways limited by these two conventions), depending on the country of origin and destination. Unlike EU rules, however, international conventions only provide for compensation when a flight is delayed, but not when a flight is cancelled. Duty of care during delays is also not expressly provided for.
In addition to these rules, there may be some national or regional legislation that need to be considered, depending on the region the carriers are flying to or from.
So, if your travel is disrupted and neither the EU rules nor the international conventions, national or regional legislations provide for any specific remedies, your chance of getting compensated or taken care of depends on your ticket's terms and conditions.
However, it can be comforting to know that since airlines are very much aware of the competitive nature of their business, many of them provide assistance, care and compensation to passengers, even if the law does not provide for it.
"The UAE does not have a regulation equivalent to the EU regulation for passengers' rights in case of delays and cancellations. However, [our airline] in general follows the EU regulation, which entitles passengers to refreshments, meals, hotel accommodation [depending on length of delay]. In case of cancellations, we offer free rebooking or free refunds," says Claus Fischer, chief commercial officer of Safi Airways.
"It is important to state though that the eligibility of passengers in case of delays depends on the cause of delay. Just as example, if Kabul airport was closed due to bad weather, it is not the responsibility of [the airline], hence no compensation is due," he adds.
Apart from the fact that international conventions and EU rules are not always consistent with each other, things can get even more complicated when a non-EU airline involved is under a code-share agreement with an EU carrier, or vice versa. Another issue yet is enforcement, or how to enforce an EU law in a non-EU state.
"It may even be the case that two persons sitting side by side in the same flight are entitled to be compensated under two different legal regimes when confronted with the same event giving rise to an equivalent damage," explains Vera Guedes, associate, corporate-aviation at Clyde & Co.
"Consequently, sometimes difficulties arise when trying to ascertain a legal solution to a particular case," adds Guedes.
Hence, considering all the factors that need to be taken into account to ascertain passengers' rights, the best thing you can do is read through the fine print on your ticket which clearly states the liability of carriers in the event of flight delays and cancellations.
"I recommend that all passengers go through it as it is very important vis a vis compensation claims," says Premjit Bangara, travel manager of Sharaf Travel.
Overbooking is common, not illegal
Did you know that if you're not allowed to take a flight because it is overbooked, the airline is not liable to compensate or provide care for you? In other words, you can actually get bumped off your scheduled flight without your permission because the seats have been overbooked.
In the aviation business, overbooking is not illegal and is a common commercial practice among airlines.
"Overbooking is a general commercial practice, well spread out through all the carriers and it is part of the regular conduct of business bearing in mind the erratic and somewhat unforeseeable behaviour of a great part of the potential clients; a practice that is tolerated by the legislators and legal community," says Vera Guedes, associate at Clyde & Co.
"It is common for carriers to overbook seats to maximise earnings. The thing is, some people, even after they've booked a flight, they don't show up during their scheduled departure. This happens all the time," notes Sandra, who works at a UAE-based airline.
Some airlines, however, offer free airfares on top of the existing ticket, hotel accommodation, phone calls and food to those bumped off a flight due to overbooking.
Overbooking applies only to cases where a passenger has not yet checked in. It is a concept different from "denied boarding," whereby a passenger is unable to board the plane after check-in. Although the latter is not covered by international conventions, it is covered by EU rules and may be dealt with by the terms and conditions of carriage agreed between the passenger and the airline.
Compensation for cancellations and delays
Regardless of what the rules say, the general policy followed in Dubai is that when a flight is delayed or cancelled, most airlines re-book the passengers on the next available flight and some offer a free ticket on the same route to the affected passenger.
"A few also compensate passengers by $400 [Dh1,470] towards denied boarding due to overbooking, etc.," says Premjit Bangara, travel manager of Sharaf Travel.
The amount of compensation, however, varies from airline to airline. If your flight is delayed for under six hours, Bangara says airlines normally provide refreshments and meals to passengers.
Hotel stays
When delays take longer, passengers get free phone calls or even hotel stays and transportation to and from the accommodation, if necessary. As a general rule, however, most airlines do not provide hotel stays for Dubai-based passengers when there are flight delays, adds Bangara.
Although some airlines are not liable to pay compensation to passengers when flights are cancelled, Bangara says it is the responsibility of all carriers to ensure all passengers are re-booked on the next available flight, and passengers taking onward connections are re-booked accordingly.
"In extreme cases, airlines will endorse their tickets to another airline where there is no immediate connection available," he adds.
Extraordinary circumstances
Both EU and non-EU airlines can dodge compensation claims when flight delays are caused by "extraordinary" circumstances" like a political instability, typhoon, bomb threat, strike, air traffic management decision, etc.
"Under the regulation, carriers should be limited or excluded of its obligations where delay was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken," says Guedes.
"What extraordinary circumstances and reasonable measures mean is a long disputed matter to which the courts have been giving guidance and interpretation. Specifications of these concepts will depend on the court's judgment," she adds.
Cancellations
Pursuant to EU regulations, which apply to all EU carriers and any carrier irrespective of its nationality flying to or from an EU airport, a passenger is entitled to the following in cases of cancellations:
- Reimbursement and return flight to first point of departure or re-routing (under comparable transport conditions) to their final destination;
- Meals and refreshments, and two phone calls/fax/emails and (if overnight until the new flight) hotel accommodation and transfers (if cancellation is communicated to the passengers when they're already at the airport);
- Compensation of a certain amount depending on the length of the flight to the final destination which varies between 250 euros and 600 euros.
"In addition, if proved to be caused by ‘extraordinary circumstances' that could not have been avoided even if all ‘reasonable measures' had been taken, there is no right for compensation. Passengers are required to be informed by the carrier in regards to possible alternative transport," says Guedes.
However, when a non-EU carrier originating from the UAE cancels a flight, there seems to be no clear remedy, unless otherwise stated in the terms and conditions of the contract of carriage that the passenger had entered into or the applicable national law, if any.
"One important idea to retain, however, is that the concept of delay in the international conventions is delay at arrival and not at departure. So, even if a flight leaves delayed but it arrives on time — which sometimes happens, depending on the delta of the initial ETD (Estimated Time of Departure) — delay will not have occurred," explains Guedes.
She also points out that the EU regulation on delay, cancellation and denied boarding does not apply to cases where passengers do not check in on time or those travelling free of charge or at reduced fare not available to the public. The regulation, however, applies to passengers travelling under the frequent flyer programme.
Flight delays
If rules are to be followed, expats or UAE residents who may encounter some flight delays with an EU carrier or any airline flying to and from an EU airport are entitled to the right of care (meals, refreshments and telephone calls); hotels and respective transfers to and from the airport (if the flight is delayed overnight) and reimbursement.
They will only be entitled to reimbursement if there is a delay of over five hours. In such case, they will also be entitled to a return flight to the first point of departure.
On questions whether or not a passenger is entitled to a refund for the taxi expenses incurred during a flight delay, the regulation does not provide for it. However, the airline can opt to refund the taxi fare of its free will.
"Nevertheless, one must always bear in mind that there is the right to compensation to the extent that damage has occurred. There is no right to compensation if there is no damage. Another underlying principle is to, as much as possible, put the passenger in the virtual same position as he or she would have been had the flight been on time. This being the case, the person would have had to pay for the taxi anyway. Of course, that, again, is arguable," says Vera Guedes, aviation lawyer at Clyde & Co.
If a passenger encounters serious delays with a non-EU carrier that flies to and from the UAE, he may be entitled to a maximum of 4,150 drawing rights, equivalent to more than Dh24,000.
Emirates Airlines:
Remedies for cancellation/rerouting/delays:
- Airline will use alternative aircraft or arrange for a flight to be operated for Emirates by an alternative airline, or both
- You will be entitled to choose one of the following three available remedies if Emirates cancels a flight; fails to operate a flight reasonably according to the schedule; fails to stop at your destination or stopover destination; or causes you to miss a connecting flight with Emirates or with another airline for which you hold through booking/confirmed reservation and adequate time existed to make the connection after the scheduled time of arrival of your flight:
- Airline will carry you and your baggage on another flight on which space is available and, where necessary, extend the period of validity of your ticket to cover that carriage.
- Airline will re-route you and your baggage within a reasonable period of time to the destination shown on your ticket on another of its flights or on the flight of another airline, or by other mutually agreed means and class of carriage. You will also be refunded difference between the fare, taxes, fees, charges and surcharges paid for your carriage and any lower fare, taxes, fees, charges and surcharges applicable to your revised carriage.
- Airline will give you an involuntary refund. (Refer to Article 10.2 of airline's Conditions of Carriage for more details)
For more details, including your rights on denial of boarding and involuntary refunds, please visit Emirates Airlines website at www.emirates.com
When travel plans go wrong
Since there is no definite rule as to what particular rights you are entitled to when your travel plans are messed up, Gulf News has asked Vera Guedes of Clyde & Co. to advise on specific remedies, if any, in certain cases. Below are excerpts of Guedes' answers.
Scenario 1:
An Indian expat booked a Dubai-London-Dubai trip via a European carrier. His Dubai to London flight was delayed for five hours and consequently, he missed a very important business transaction in London.
Remedies/rights: In this case, the passenger will be entitled to:
- The right of care (meals, refreshments and telephone calls);
- Hotel and respective transfers to and from the airport, if the flight is delayed to the day after the initial estimated time of departure (ETD);
- Reimbursement for the part of the journey not performed (Dubai-London) or for the whole journey (Dubai-London-Dubai) if the purpose of the flight is no longer relevant.
Scenario 2:
A French expatriate booked a return trip for Paris from Dubai via an Asian carrier (Dubai-Doha-Paris-Dubai). His Doha-Paris flight was cancelled. The passenger was stranded at Doha airport and consequently had to stay in the city for the night.
Remedies/rights:
This is assuming the whole flight is with one airline. Since the origin and destination are considered to be Dubai and the carrier is non-EU, the Montreal Convention (MC) applies in this case.
According to the MC, in case of delay, each person is entitled to a maximum of 4,150 Special Drawing Rights (equivalent to around Dh24,130). This limit will be waived in case of carrier's gross negligence or wilful misconduct.
This is the maximum amount for compensation and it is not always certain that a passenger is compensated. Compensation will depend on an existing, proven damage and on its amount, and the delay must be the direct cause of the damage.
The carrier will not be liable if it proves that it took all reasonable measures to avoid the damage or that it was impossible to take those measures.
Scenario 3:
A UAE national booked a return trip for Kuala Lumpur (KL) from Dubai via an Asian carrier, with a connecting flight in Singapore (Dubai-Singapore-Kuala Lumpur-Dubai). His Singapore to KL flight was cancelled.
Remedies/rights:
Since it is a return flight that starts from Dubai, the destination is also considered Dubai, irrespective of other agreed stopping places. So, the MC applies.
There is no provision for cancellation in the MC. So, since the MC is considered to be the exclusive judicial instrument to apply in case of damage to international carriage that falls within its scope, as it is the case, there is no right for compensation unless the terms and conditions of the contract of carriage entered into with the passenger say otherwise.
The concept of "delay" in the MC is delay at arrival, not at departure. So, even if a flight leaves late but it arrives on time (which sometimes it happens, depending on the delta of the initial ETD), delay will not be considered to have taken place.
Scenario 4:
A French expatriate booked a return trip (Dubai-Doha-Paris-Dubai) via a Middle Eastern carrier. His Dubai-Doha flight was delayed for three hours, causing him to miss his connecting Doha-Paris flight.
Remedies/rights:
Since the delayed Doha-Paris leg of the journey is only intermediary, Dubai is considered the point of origin and destination in this case. And since the flight is with a non-EU carrier and originates from outside the EU, the MC will apply. Hence, there is no right to compensation, unless stated otherwise in the contract entered into with the passenger
