Article: Airlines, Please Stop Selling Ridiculously Tight Connections

[kangarooflyer88]

How does one go about bringing an action under Article 19 of Montreal, assuming that the airline blows off your initial claim via a customer feedback channel or the like?

Like anything else, small claims court.

Also, do actions and compensations taken under EU 261 and Article 19 conflict with each other (e.g. if you make a claim successfully under one, you disqualify or reduce yours on the other)?

No they are separate from one another. EU261 (or in the case of Canada APPR) are consumer protections that do not consider what damage the airline has caused to you whereas Montreal Convention exclusively considers the damage caused by the airline. In other words mutually exclusive of one another. See this finding from the Supreme Court of Canada which recently ruled on this matter for instance.

Never heard of anyone try to make such a claim; most of it has been appealing to the airlines and then it's their "goodwill" if it isn't a policy or regulatory requirement. The old wisdom we seem to give every traveller is that the airline is only responsible for the actual flight itself (or rather, the transport of you from A to B); everything else external to that is not and that's what travel insurance is for.

There are many cases of travellers who successfully got the airline to reimburse them pursuant to Article 19 of the Montreal Convention. Here's one such example where a couple managed to get some of the cost of the cruise they missed due to a delay. What's key here is the traveller cannot be negligent on their part. So for instance, booking subsequent travel close to when you are scheduled to arrive can cause some (or all) liability to shift to you.

 

[MEL_Traveller]

Like anything else, small claims court.

No they are separate from one another. EU261 (or in the case of Canada APPR) are consumer protections that do not consider what damage the airline has caused to you whereas Montreal Convention exclusively considers the damage caused by the airline. In other words mutually exclusive of one another. See this finding from the Supreme Court of Canada which recently ruled on this matter for instance.

There are many cases of travellers who successfully got the airline to reimburse them pursuant to Article 19 of the Montreal Convention. Here's one such example where a couple managed to get some of the cost of the cruise they missed due to a delay. What's key here is the traveller cannot be negligent on their part. So for instance, booking subsequent travel close to when you are scheduled to arrive can cause some (or all) liability to shift to you.

Small claims doesn’t have jurisdiction in relation to the Montreal Convention in Australia.

I think you have the wrong emphasis on MC99. Emphasis should be on the word ‘reasonable’ rather than ‘all’. Which is a fundamental difference between EU261 and MC99.

The canadian protections are more akin to MC99… pretty loose unfortunately.

 

[kangarooflyer88]

Small claims doesn’t have jurisdiction in relation to the Montreal Convention in Australia.

What forum is relevant for addressing items related to breaches of Commonwealth laws, then as the Montreal Convention is Federal law passed by the commonwealth.

I think you have the wrong emphasis on MC99. Emphasis should be on the word ‘reasonable’ rather than ‘all’. Which is a fundamental difference between EU261 and MC99.

Reasonability certainly depends on the eye of the beholder. I think the central question would be what opportunities did the airlines have to minimize those disruptions, were those contingencies reasonable and did the airline take such contingencies. For instance, a flight getting severely delayed or cancelled because they did not have enough crew for the flight could be seen as the airline not taking all reasonable measures under the convention, particularly if they are at a major hub for the airline as you would expect that crew getting sick or timing out as being something foreseeable that could happen and thus something where contingencies must be in place.

The canadian protections are more akin to MC99… pretty loose unfortunately.

Which brings me to my most recent claim against Air Canada pursuant to the Air Passenger Protection Regulation (APPR). I was delayed 14 hours by the airline due to a pilot calling in sick. I filed a claim with the airline for $1,000 in entitlement as I was delayed over 9 hours. They denied it claiming it was safety related. I then appealed (if I can use that word) to the Canadian Transportation Agency, there was discovery and I showed that Air Canada did not have sufficient contingency for the entire month (around 30% less reserve crew than usual) and the agency ruled in my favour.

If this was argued under the Montreal Convention, I would have to demonstrate that Air Canada inflicted $1,000 in damage to me. I would have to produce pay slips proving lost wages and the evidentiary burden would be on me to show that I was harmed in such a way. Under the APPR and EU261, there is no such burden. It is merely an entitlement passengers are given when airlines fail to keep their commitment to on time departures. The passenger need not be harmed by such disruptions to receive the entitlement. They could even benefit from such disruptions as was the case when Qantas delayed my flight from Singapore to Sydney back in 2023 allowing me to avoid a second red eye flight after my initial red eye from Helsinki to Singapore. Put simply, Montreal Convention is always about what actual damages or harm did you as a passenger suffer. It could be out of pocket costs, mental or physical damages, but again the burden of proof is on the person raising the claim to demonstrate that they have suffered damage and that the airline is liable. The APPR and EU261 are consumer protection regulations that make no determination on whether the passenger is harmed. Instead, if criteria are met such as being delayed for more than 3 hours, then the passenger is automatically entitled to things like meals, accommodation or a cash payout.

-RooFlyer88

 

[MEL_Traveller]

What forum is relevant for addressing items related to breaches of Commonwealth laws, then as the Montreal Convention is Federal law passed by the commonwealth.

It’s the federal court, or a forum with federal court jurisdiction. This means engaging a lawyer and getting legal representation. Coupled with the uncertainty of your claim, it’s unlikely to be a preferred avenue for something like a delay. For death or bodily injury, yes, but not a for a delay or claim for $1000.

Reasonability certainly depends on the eye of the beholder. I think the central question would be what opportunities did the airlines have to minimize those disruptions, were those contingencies reasonable and did the airline take such contingencies. For instance, a flight getting severely delayed or cancelled because they did not have enough crew for the flight could be seen as the airline not taking all reasonable measures under the convention, particularly if they are at a major hub for the airline as you would expect that crew getting sick or timing out as being something foreseeable that could happen and thus something where contingencies must be in place.

Once you go to court, ‘reasonable’ will be an objective test. Not subjective.

A flight crew member at a major hub is easy. Try something a little more complex like a diversion. What would be ‘reasonable’ action by the airline to fix that? Fly a new crew in? Private jet or commercial?Even if they chartered a jet, the incoming crew may need to meet mandatory rest periods. So is a delay of 24 hours while the current crew sleep reasonable? Or should they fly in a crew that will need to rest anyway?

What about a sick crew member at a long haul outstation? What’s reasonable there?

Which brings me to my most recent claim against Air Canada pursuant to the Air Passenger Protection Regulation (APPR). I was delayed 14 hours by the airline due to a pilot calling in sick. I filed a claim with the airline for $1,000 in entitlement as I was delayed over 9 hours. They denied it claiming it was safety related. I then appealed (if I can use that word) to the Canadian Transportation Agency, there was discovery and I showed that Air Canada did not have sufficient contingency for the entire month (around 30% less reserve crew than usual) and the agency ruled in my favour.

If this was argued under the Montreal Convention, I would have to demonstrate that Air Canada inflicted $1,000 in damage to me. I would have to produce pay slips proving lost wages and the evidentiary burden would be on me to show that I was harmed in such a way. Under the APPR and EU261, there is no such burden. It is merely an entitlement passengers are given when airlines fail to keep their commitment to on time departures. The passenger need not be harmed by such disruptions to receive the entitlement. They could even benefit from such disruptions as was the case when Qantas delayed my flight from Singapore to Sydney back in 2023 allowing me to avoid a second red eye flight after my initial red eye from Helsinki to Singapore. Put simply, Montreal Convention is always about what actual damages or harm did you as a passenger suffer. It could be out of pocket costs, mental or physical damages, but again the burden of proof is on the person raising the claim to demonstrate that they have suffered damage and that the airline is liable. The APPR and EU261 are consumer protection regulations that make no determination on whether the passenger is harmed. Instead, if criteria are met such as being delayed for more than 3 hours, then the passenger is automatically entitled to things like meals, accommodation or a cash payout.

-RooFlyer88

Which is the point of consumer protection laws. They are usually much easier to claim, without having to go to court. You don’t have to file paper work to substantiate the claim.

What you have highlighted here is the reason why you went down the path of APPR rather than MC99.

This is why, when a flight is delayed or cancelled, it’s probably not going to be wise to simply buy a fare on another airline and rely on MC99 to cover that cost. You’d have to wait for your day in court and be sure that the airline hadn’t taken all reasonable steps. Who’s going to be able to work that out with absolute certainty before you hand over your credit card for the new ticket?

MC99 does not cover mental damages. It’s specifically excluded.

The APPR is weak compared to EU261 because of the safety exclusion.

 

[anat0l]

I might be naive here, but an additional problem with MC actions are that you would need to file them in one of the jurisdictions of either the origin or destination of the flight affected, or local jurisdiction if the airline implicated has a presence there.

With the situation as used in the AFF article, all of these places would be in Europe. Most of us live in Australia and probably don't hang around long enough (or wish to do so) to follow through with an action before a court in Europe. Maybe they are possible to file and attend to remotely, I'm not sure.

One thing about EU261 is at least there are agencies out there who can take the fight on your behalf, no matter where you are in the world, without your needing to present yourself in person; yes, it does cost a portion of your compensation, if you do succeed.

 

[MEL_Traveller]

I might be naive here, but an additional problem with MC actions are that you would need to file them in one of the jurisdictions of either the origin or destination of the flight affected, or local jurisdiction if the airline implicated has a presence there.

With the situation as used in the AFF article, all of these places would be in Europe. Most of us live in Australia and probably don't hang around long enough (or wish to do so) to follow through with an action before a court in Europe. Maybe they are possible to file and attend to remotely, I'm not sure.

One thing about EU261 is at least there are agencies out there who can take the fight on your behalf, no matter where you are in the world, without your needing to present yourself in person; yes, it does cost a portion of your compensation, if you do succeed.

Principal place of residence of the claimant is also ok

 

[MEL_Traveller]

Going back to something mentioned by KF88 and ‘reasonable’ measures. Let’s take IRROPS.

I believe BA has several operationaly-ready aircraft just sitting at LHR. They do this, at some expense presumably, to avoid payments under EU261.

Now if a person was to bring a claim under MC99, would that also be successful if an airline didn’t have contingency aircraft sitting idle? As an airline I’d be arguing that plane is costing money just sitting there, and it would be unreasonable for me to do that. (Unless of course the airline had a history of delays.)

That’s a test that could get very expensive if you decided to prosecute it through the courts.