An AU/NZ Regulation for Irregular Carriage (like EU Regs)

[anat0l]

With all the talk about weak regulation in Australia for flight delays, cancellations etc., I thought about the EU Regs and whether something like that could make airlines more accountable for their actions.

In that light, I had a bit of discussion with some other friends of mine (none are lawyers or with the airline industry, so relax) and we quickly ripped off the EU Regs with some adjustments and clarifications. The result is attached; unfortunately, the docx, doc and pdf file are all over the limits for forum attachments, so I had to zip up the file instead.

So, what do you think? Would something like this help? Does it need tightening? Is it too strict? Are there too many "get out" clauses?

I'm thinking that if we can get a decent set of rules together, we should seriously consider sending this along with a petition to a government or regulating body for consideration.

Perhaps some of us have become passive and become used to the "nature of the beast" that delays can or do occur and for what time frames, so we decide that business as usual now is just fine. That may be true, but I think hearing your reasoning would be great all the same.

 

[MEL_Traveller]

I think that's a pretty good start.

The cash compensation for delayed flights is at about the right level. For example if your MEL-SYD flight is cancelled or significantly delayed (ie enough to get the full compensation), then $400 will pretty much cover you to fly on any other airline on that route.

So it would mean, for example, that even if you have bought a $28 fare on Tiger, you would have sufficient cash to purchase a full fare (which may be all that is left) on Qantas.

What really bugs me is when low cost airlines offer a refund, but that refund is virtually useless to get you to where you need to go at short (read immediate) notice.

The big issue is what does:

[FONT=Verdana, sans-serif]the cancellation was caused by extraordinary circumstances that could not have been avoided by any reasonable measure.[/FONT]

​

actually mean?

Scenario... engine fan blade disintegrates on take-off causing engine to be shut down and aircraft to return to airport.

Avoidable by any reasonable measure?

Let's see...

a) cause is due to bird strike?
b) cause is due to metal fatigue?
c) cause is due to premature metal fatigue?
d) cause if due to premature metal fatigue which has been reported in maintenance bulletins by other airlines?

Finally, I think an 'or' should be included in the opening sentence on the applicability of the regulations. So that it is clear the regs apply to either travelling from an airport in AU/NZ OR travelling to an airport in AU/NZ.

Ie, it should be open to interpretation that you need to be flying from an airport in AU/NZ to an airport in AU/NZ (effectively limiting it to domestic and trans-tasman services).

 

[medhead]

The big issue is what does:

[FONT=Verdana, sans-serif]the cancellation was caused by extraordinary circumstances that could not have been avoided by any reasonable measure.[/FONT]

​

actually mean?

Scenario... engine fan blade disintegrates on take-off causing engine to be shut down and aircraft to return to airport.

Avoidable by any reasonable measure?

it means the the situation was beyond the airlines control. So a bird strike is beyond control. Metal fatigue that could be prevented but wasn't because of lower maintainence standards (read unreasonable). That is within airline control.

Finally, I think an 'or' should be included in the opening sentence on the applicability of the regulations. So that it is clear the regs apply to either travelling from an airport in AU/NZ OR travelling to an airport in AU/NZ.

Ie, it should be open to interpretation that you need to be flying from an airport in AU/NZ to an airport in AU/NZ (effectively limiting it to domestic and
trans-tasman services).

I'm confused by what you mean. An OR instead of an AND actually removes the effective limitation that you seem to want to have.

 

[anat0l]

The cash compensation for delayed flights is at about the right level. For example if your MEL-SYD flight is cancelled or significantly delayed (ie enough to get the full compensation), then $400 will pretty much cover you to fly on any other airline on that route.

So it would mean, for example, that even if you have bought a $28 fare on Tiger, you would have sufficient cash to purchase a full fare (which may be all that is left) on Qantas.

What really bugs me is when low cost airlines offer a refund, but that refund is virtually useless to get you to where you need to go at short (read immediate) notice.

Don't forget that the clause as inherited from the EU Regs halves the amount you are compensated for a type 1 flight if you can be rebooked so that you arrive within two hours of your original arrival time. $400 (or $200) is more a convenience compensation, although it's really a cursory penalty for the airline as some people may view that amount as still being "insufficient" compensation for the intent of their travel (e.g. missed an important business meeting, job interview opportunity lost, missed a wedding, special arrangements at destination (not flying related) lost - some of this is covered by travel insurance....). Under EU Regs your right to rebook/reroute/refund are in addition to this cash compensation if your flight is cancelled or sufficiently delayed.

The big issue is what does:

[FONT=Verdana, sans-serif]the cancellation was caused by extraordinary circumstances that could not have been avoided by any reasonable measure.[/FONT]

​

actually mean?

Scenario... engine fan blade disintegrates on take-off causing engine to be shut down and aircraft to return to airport.

Avoidable by any reasonable measure?

Let's see...

a) cause is due to bird strike?
b) cause is due to metal fatigue?
c) cause is due to premature metal fatigue?
d) cause if due to premature metal fatigue which has been reported in maintenance bulletins by other airlines?

From anecdotal observation, it appears to be extremely difficult for an airline to claim extraordinary circumstances due to technical or maintenance issues with an aircraft. The only extraordinary circumstances that I can think of include:

• Terrorist threat or attack
• Closing of airport of which the airline has no say and cannot operate flights
• Weather conditions of which the airline decides it is not safe to fly and can have its position certified by ATC and a relevant independent authority (e.g. the snow storms battering the Northern Hemisphere of late)
• I'd say bird strike is an extraordinary circumstance

But there are some tough situations to follow that I think I haven't quite listed well in the original draft of the "regs", and whether the airline should be fully responsible, be initially responsible (i.e. they must compensate passengers according to the schedule but then they are legally entitled to demand another party to reimburse part or the full amount of compensation liability), are allowed to delegate responsibility to the "correctly responsible" third party, or don't have any liability at all:

• What if ground services at an airport is at fault (e.g. catering truck hits the side of a plane, or the lack of tugs delays an aircraft's departure due to inability to push back)? What if the airline owns the ground services at an airport?
• What if a passenger delays an aircraft's departure by not following procedures properly? For example, there was a pax on a CX flight once who refused to put her hand luggage under the seat in front or in the overhead locker (she kept it on her lap). She was eventually offloaded from the aircraft. In the unlikely event that a sufficient delay was caused in having to offload this passenger (e.g. return to gate etc.), what happens?
• What if law enforcement agencies temporarily prevent an aircraft from leaving? For example, what if a plane is stopped from departing due to police wanting to investigate or arrest a particular pax on an aircraft? What about "delays" due to the swine flu inspections that used to happen (which at times could result in a delay of disembarkation of at least 30 minutes).
• What if an aircraft manufacturer enforces the grounding of aircraft? For example, a fault has just been noticed in a number of Airbus A320s. Airbus decides that it is in the best interests of all airlines to cease operating all A320 equipment until it can inspect all aircraft. Who coughs up the rebooking bill?
• What if a plane must divert to an intermediate port due to medical or legal reasons (e.g. to disembark a very ill or unruly passenger) before resuming the journey? I don't even know what would happen under EU Regs in a case like this. I'd imagine that diversion due to maintenance (safety) reasons would still require compensation as that is not "extraordinary".

Finally, I think an 'or' should be included in the opening sentence on the applicability of the regulations. So that it is clear the regs apply to either travelling from an airport in AU/NZ OR travelling to an airport in AU/NZ.

Ie, it should be open to interpretation that you need to be flying from an airport in AU/NZ to an airport in AU/NZ (effectively limiting it to domestic and trans-tasman services).

Good point.

 

[MEL_Traveller]

Ie, it should be open to interpretation that you need to be flying from an airport in AU/NZ to an airport in AU/NZ (effectively limiting it to domestic and trans-tasman services).

Sorry - my 'should' should have been a 'could'. Typo.

Without an 'or' it could be open to interpretation that you need to be both leaving from, and arriving in an AU/NZ airport in order to be covered by the regulations.

I think the regs should cover international flights as well.

Yes - accept the $400 can be reduced in half, but is Tiger likely to rebook you if they cancel your flight? Maybe they would if these regs were in place.

Otherwise you'd be entitled to a refund (let's say that is $28) - then unless they rebook you, you'd have to use the $400 to go book youself on Qantas.

Of course if Tiger did rebook you onto Qantas then as a pax you'd have a bonus $200 in pocket.

medhead - I was presenting a build up of different reasons to test the point at which something becomes beyond the control of the airline.

I was actually on an aircraft (domestic Australian) where I had the fan blade snap and cause the engine to shut down. No evidence of a bird anywhere... not that I can verify for sure (although I was sitting immediately forward of the engine).

I suspect it would be difficult to ever find out the cause or whether it could have been prevented by the airline. If a check is required every 10000 hours (or whatever) - could it be reasonable for the airline to check at 9000 hours? At what point does preventative maintenance become unreasonable?

 

[medhead]

medhead - I was presenting a build up of different reasons to test the point at which something becomes beyond the control of the airline.

I was actually on an aircraft (domestic Australian) where I had the fan blade snap and cause the engine to shut down. No evidence of a bird anywhere... not that I can verify for sure (although I was sitting immediately forward of the engine).

I suspect it would be difficult to ever find out the cause or whether it could have been prevented by the airline. If a check is required every 10000 hours (or whatever) - could it be reasonable for the airline to check at 9000 hours? At what point does preventative maintenance become unreasonable?

Sorry, I was a bit unclear in my reply (was writing on iphone). I was trying to say that the airline needs to take reasonable steps to prevent something happening. Hence if a fan blade fails and the airline has followed stand industry practice, met the regulations and taken appropriate action on notificiation of events at other airlines. But if they did something not standard, or used some solvent/chemical that accelerated the metal fatigue.

Anyway, as you point out it is a very hard thing to define. But I think it is better to leave the interpretation to a court. Based on looking into the EU regs when my brother exercised his rights in the EU.

In reading up on that there was a good example of reasonable and unreasonable. Take a dinosaur that walks out of a forest onto an airport and damages the operating aircraft - obviously unforeseen. But if that same dinosaur allows goes to the airport every thrusday at midday.... (to paraphase, the example was something like that)

 

[straitman]

Another example to consider.

Last year we had a turbine wheel fail on it's last flight prior to removal.

So you say shorten the removal time, but I have to ask is that an appropriate response? In the case of our aircraft we average six takeoffs and landings per hour and as such the turbines are subject to a lot more wear than the average engine in other operations.

To mitigate this the turbine wheels on our engines are changed at half the service lift recommended by the engine manufacturer and in fifteen years and approximately 150,000 flight hours of operating these engines this was the first failure of this type. (approx 300,000 engine hours)

Comments?

 

[medhead]

Another example to consider.

Last year we had a turbine wheel fail on it's last flight prior to removal.

So you say shorten the removal time, but I have to ask is that an appropriate response? In the case of our aircraft we average six takeoffs and landings per hour and as such the turbines are subject to a lot more wear than the average engine in other operations.

To mitigate this the turbine wheels on our engines are changed at half the service lift recommended by the engine manufacturer and in fifteen years and approximately 150,000 flight hours of operating these engines this was the first failure of this type. (approx 300,000 engine hours)

Comments?

That seems reasonsable to me (but then I'm no court) You've increased the change out cycle to account for the extra stress of your operations. You're more than meeting manufacturers specs. How do you maintainence practices compare to other companies undertaking similar operations?

 

[harvyk]

It's not bad... A big change that I'd be making is that I'd put in a clause which states an airline must arrange travel on an alternate carrier at the airlines expense.

It's all well and good to be given a $400 refund, but if the only seats available to you to get you to your destination are $700 seats you'll still be left out of pocket, where as if an airline has to cover the cost, then it won't matter that the only seats left are the $700 seats, as the airline will cover the cost of travel on an alternate carrier.

 

[anat0l]

It's not bad... A big change that I'd be making is that I'd put in a clause which states an airline must arrange travel on an alternate carrier at the airlines expense.

It's all well and good to be given a $400 refund, but if the only seats available to you to get you to your destination are $700 seats you'll still be left out of pocket, where as if an airline has to cover the cost, then it won't matter that the only seats left are the $700 seats, as the airline will cover the cost of travel on an alternate carrier.

I was under the impression that under the EU Regs, if you choose to exercise your option for rerouting, this can include other carriers (it is your convenience). Happy to be corrected on this one.

In any case, barring an unreasonable demand for rerouting or rebooking, the cost of the option must be borne by the obliged airline.

 

[harvyk]

I was under the impression that under the EU Regs, if you choose to exercise your option for rerouting, this can include other carriers (it is your convenience). Happy to be corrected on this one.

I suspect you are correct, as recently there was a post made by someone here who was meant to be on VS and ended up on SQ.

My comment was based purely on how I read the attached doc, nothing more...

 

[Skoogle]

For the refund path, I would like to see a maximum timeframe. Also, maybe even an option to refund your credit card straight away (as it is a common payment) or in cash on the spot where allowed and desired.

In the recently published government whitepaper on the airline industry, it made too many references to minimum timeframes to be helpful to consumers.

For the 'what if' scenarios above; aircraft damage, another pax issue, law enforcement, aircraft manufacturer, legal reasons - all things the airlines can control and/or be responsible for.

Medical reason - I will let them off for the initial diversion/delay only. But the common issue of crew timeout on deversion/delay is something they can control and thus be responsible for.