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.

 

[kangarooflyer88]

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.

That is absolutely insane. In Canada we could pursue small claims for any matter of law including things like the Montreal Convention as set out under Schedule V of the Federal Carriage by Air Act. This has a chilling effect on consumer's exercising their rights by law.

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

Reasonableness is in the eye of the beholder. Unless it is specified in black in white in the law, it is open to interpretation. That's what courts are for, to judge what is reasonable.

A flight crew member at a major hub is easy.

Not only is it easy but it's very common. Think about international flights for just a moment at least half of the time you are guaranteed to be flying out of a major hub of the airline. If you are flying to Emirates, about half of the time you are flying out of Dubai their major hub. And for Qantas, a similar thing, about half of the time you are flying out of one of their major hubs like Melbourne or Sydney. And as I've said before things like crew scheduling or aircraft maintenance are issues that crop up commonly.

And for the purposes of MC99 there needs to be contingencies when you are dealing with a hub. So yes, it's unreasonable to expect Qantas to have a huge contingency plan at JFK but at Auckland or Sydney? Absolutely!

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.

Agreed.

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

Correct.

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?

Technically the consumer protections of APPR/EU261 provide a provision for you to buy your own flight and send the bill to the airline when they fail to meet their obligations for rebooking under the law. Using APPR as an example, if a delay is caused by something within the control of the airline like unscheduled maintenance they must put you on the next available flight they have departing within 9 hours or failing that the next flight operated by any airline. If the airline refuses to do that and books you on a flight 2 days later, you can book your own flight and then have them reimburse you for the cost of the new flight.

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

That's a myth. MC99 does cover mental and psychological damages. However, there must also be physical injury as well to be able to claim that. Again, a perverse limitation of the convention. Think of those poor souls on the Delta flight back in February that crash landed in Toronto, all they got was $30,000 USD from the airline which sounds nice on paper until you realize that many of the passengers will face PTSD and trauma from that incident. There is no way $30K will even remotely deal with the therapy they'll need.

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

You are correct there. Unscheduled maintenance is a huge out for the airlines. Then again, it is way better than the consumer rights (or lack there of) Aussies have when it comes to flights. At the same time, there are some aspects where the APPR is stronger than EU261. For instance, EU261 only applies to all airlines for trips departing the EU. For inbound trips to the EU, the flight must be operated by an EU airline. Contrast this to the APPR where it doesn't matter the nationality of the airline, so long as you start or end your journey in Canada you're covered.

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.

You can sue airlines for compensation under EU261 or APPR where you live. It does not matter if EU261 or APPR are the law of the country you are suing in as you would be arguing breach of contract. Namely, the contract of carriage/tariff of the airline will contain the language from the EU261/APPR meaning you could go to court and argue, the contract I had with the airline specified I was entitled to these rights under EU261/APPR but they failed to deliver on those rights. It would then be up to the court to interpret the contract and the meaning of the language to determine whether compensation is owed.

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.)

Reasonable also means opening your wallet and rebooking the passenger on another flight potentially with a competitor. For instance, suppose Qantas cancels their Sydney to Vancouver service that day and rebooks you on their next service departing 2 days later. That would be seen as unreasonable, particularly given there are alternatives like Air Canada flights departing several times a day out of Sydney for Vancouver.

Basically the airline needs to have plans to deal with disruptions which are foreseeable. Aircraft go in for unscheduled maintenance and crew do get sick and time out. That's not speculation, that is something that every major airline encounters several times everyday. So they need to have a robust strategy here. It could mean having reserve crew and aircraft. It could also be having commercial arrangements in place so disrupted passengers are placed onto flights operated by partners or even competitors. The more contingencies the airline has the better as they can choose the option which costs them the least amount of money whilst minimizing the disruption on the passenger.