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1 09/28/12
Passenger Claims Workshop
2 09/28/12
Welcome and Introductions Leslie Lugo, IATA
To represent, lead and serve the airline industry
Introduction to the international regime governing passenger claims Passenger Claims Workshop, AUH, 18 October 2012
Auguste Hocking, Legal Analyst
IATA Legal Services, Geneva
4
Outline
The passenger/airline legal relationship Key principles of Warsaw The problem of limits Montreal Convention 1999 Key principles of Montreal Accident, Baggage & Delay Which treaty applies?
5
The passenger and airline relationship
The legal relationship between passenger and airline is governed by: contract law treaty law other local law
6
The international treaty regime for liability
Treaty framework aims to create uniform liability rules: Warsaw instruments Montreal Convention 1999
These regimes cover claims for: death or injury during international carriage by air damage, loss or delay to baggage delay
Where a liability treaty applies, it overrides inconsistent aspects of the conditions of carriage and local law
7
The Warsaw bargain
Warsaw in 1929 struck a ‘bargain’ between passengers and carriers: carrier liability is limited passengers do not have to prove the carrier was at fault
(although they must prove their damages) These liability rules were intended to be certain, predictable and
uniform in all cases where the Warsaw regime applied
8
Key principles of Warsaw
Applies based on a passenger’s individual itinerary Liability starts at embarkation, ends at disembarkation Death or injury liability premised on “accident” Passenger claims are subject to fixed limits, originally:
for death or injury, a limit of 125,000 francs per passenger for baggage, 250 francs per kilo
Passengers may obtain additional insurance Limits only available if carrier issues proper documentation Limits can also be broken if willful misconduct by carrier There are strict time limits and other procedural rules
9
Limits under the Warsaw system
Limit Warsaw 1929 Warsaw amended by Hague 1955
IATA Intercarrier Agreements
Death or injury 125,000 francs (USD 12,000)
250,000 francs (USD 24,000)
SDR 100,000 (USD 174,000)
Checked baggage (per kilo)
250 francs (USD 20)
250 francs (USD 20)
-
Unchecked baggage (per passenger)
5,000 francs (USD 400)
5,000 francs (USD 400)
-
1 SDR = USD 1.54, EUR 1.18; GBP 0.95 (Source: IMF, 14 October 2012)
10
Montreal Convention 1999
Intended to replace the Warsaw system and restore global uniformity Entered into force in 2003, presently has 103 States parties or
approximately 54% of all ICAO states
11
Key principles of Montreal
Tiered but unlimited liability for death or injury The “accident” formulation is retained Fixed thresholds/limits:
death or injury (113,100 SDRs) baggage (1,131 SDRs) delay (4,694 SDRs)
Documentary irregularities do not invalidate limits Baggage rules streamlined Passengers can claim in multiple jurisdictions Limits and thresholds reviewed by ICAO every 5 years
12
The present Montreal ‘limits’
Type SDR USD EUR Death or injury (first tier)
113,100 174,000 134,500
Baggage (per passenger)
1,131 1,740 1,345
Delay 4,694 7,200 5,600
13
Types of liability in Montreal
Liability type Standard Defence(s) Death or injury “accident” Various, depending on tier Checked baggage
“event” Inherent defect, etc.
Unchecked baggage
“fault” Inherent defect, etc.
Delay “occasioned by” “all reasonable measures” etc.
14
Accident
Unusual or unexpected event external to the passenger Significant body of case law on this issue worldwide Requires bodily injury, purely mental anguish not enough
15
Baggage
Checked versus unchecked baggage carrier presumptively liable for checked baggage passenger must prove carrier at fault for unchecked baggage
Limit of 1,131 SDRs per passenger, but can be broken Acceptance of baggage without complaint is proof of good condition Carrier has defence of inherent vice or defect
16
Baggage II
Damage complaints must be made within 7 days Delay complaints must made within 21 days Baggage deemed lost after 21 days, no complaint necessary All complaints must be made in writing Failure to make complaint will bar claim 2 years to bring claim in court
17
Passenger delay
Passengers may claim for losses “occasioned by delay” Have to prove extent of loss, but limited to 4,694 SDRs Punitive or moral damages not permitted Carrier defence of “all reasonable measures” General 2 year time limit for claims
18
Which regime applies?
Do you have a one way or return itinerary? Both the origin and the destination must have ratified the same treaty You look to the most recent treaty common to both countries ICAO publishes an updated list of state ratifications online
19
Examples
LHR-SYD-LHR (return): Montreal applies. UK is the origin and destination and has ratified
Montreal. GVA-HRE (one way):
Switzerland is the origin and Zimbabwe is the destination. The most recent common treaty is Warsaw as amended by Hague, 1955.
AUH-BKK (one way): The UAE is the origin and Thailand is the destination. There is no
treaty in common. Local law and conditions of carriage will apply.
20
21
IATA World Passenger Symposium, Abu Dhabi Passenger Claims Workshop Anita Quy Partner Clyde & Co LLP, Singapore
18 October 2012
23
1,300+ 1st 285+ 30 Lawyers and legal staff worldwide
Law Firm of the Year Legal Business Awards 2011
Partners worldwide Offices across Europe, Americas, Middle East, Africa and Asia.
About Clyde & Co
Clyde & Co was established in 1933 Global Aviation Law Firm in 2005, 2006, 2007, 2008,
2009, 2010, 2011 and 2012 UK Law Firm of the Year 2011 Top two dispute resolution law firms in UK
Global Aviation Law Firm in 2005, 2006, 2007, 2008, 2009, 2010, 2011 and 2012
24
Our sectors
Professional Practices Marine
Trade & Commodities Insurance
Aviation Infrastructure
Energy
25
Our international network of offices
Our international network is supplemented by relationships with correspondent law firms in over 120 countries
26
We are a Leading Aviation Litigation and Dispute Resolution Practice
We have considerable experience of advising on a wide range of aviation, space, insurance & reinsurance issues and of resolving disputes whether by litigation, arbitration or mediation
Main Clients include – international aviation insurers – Airlines – aviation service organisations – airport operators
We act for a significant number of the world’s airlines Our expertise includes
– aviation disasters – aviation commercial litigation – aviation and space insurance / reinsurance – aviation finance – carbon emissions trading advice
– employment and immigration issues – corporate insurance – jurisdiction disputes
– liability claims (including product liability) – maintenance disputes – passenger / cargo claims – patent disputes – public inquiries – risk management and disaster planning – subrogation
27
List of Major Accidents • Susi Air, Accident in Balikpapan, Indonesia (2012) • Merpati Nusantara, Accident in Larat, Indonesia (2011) • PT Nusantara Buana Air, Accident in Langkat, North
Sumatra, Indonesia (2011) • PT Airfast Indonesia, Accident in Sumbawa, Indonesia
(2011) • Yajasi Aviation, Accident in Wamena, Papua, Indonesia
(2011) • PT Nyaman Air, Manado, Sulawesi, Indonesia (2011) • Merpati Nusantara, Accident in West Papua, Indonesia
(2011) • Christen Eagle HS-EGL in Thailand (2011) • KL International Flying Academy, Accident in Ladang
Sri Pulai, Malaysia (2010) • Merpati Nusantara, Accident in Papua, Indonesia
(2009) • Mimika Air, PC-6 accident, West Papua, Indonesia
(2009) • Adam Air, Accident in Batam, Indonesia (2008) • Mandala Airlines, Accident in Malang, Indonesia (2007) • One Two Go Airlines, Accident in Phuket, Thailand
(2007)
• Adam Air, Accident near Sulawesi, Indonesia (2007) • Adam Air, Accident in Surabaya, Indonesia (2007) • Mandala Airlines, Accident in Tarakan, Indonesia
(2006) • Merpati Nusantara, Accident in Banda Neira,
Indonesia (2006) • Merpati Nusantara, Accident in Makassar, Indonesia
(2005) • Mandala Airlines, Accident in Medan, Indonesia
(2005) • China Airlines, Accident in Hong Kong (1999) • Air Fiji, Accident in Viti Levu, the Fiji Islands (1999) • Korean Airlines, Accident near Stansted, England
(1999) • Helicopter accident at Lake Ayllon, Ecuador (1999) • China Airlines, Accident in Taipei (1998) • Formosa Airlines, Accident near Hsinchu, Taiwan
(1998) • SilkAir, Accident near Palembang (1997) • Bangladesh Biman, Accident near Sylhet,
Bangladesh (1997) • Vietnam Airlines, Accident at Phnom Penh,
Cambodia (1997) • Garuda, A300 accident near Medan, Indonesia
(1996) • Malaysia Airlines, Fokker 50 accident, Tawau,
Malaysia (1995)
28
• applies only to “international” carriage by air
• presumption of liability
• Warsaw/Hague - limited liability except in certain situations; limited defences
• Montreal Convention – two tier liability system for death/bodily injury claims
• 5th jurisdiction added for death/bodily injury claims
• exclusive remedy – no contracting out
• no punitive damages
PRINCIPAL FEATURES OF WARSAW/MONTREAL
29
“INTERNATIONAL CARRIAGE”
Means: => carriage between two contracting parties
eg: Singapore – Dubai Singapore – Taiwan X => carriage within territory of one contracting party with an agreed stopping place in another state eg: Bangkok – Dubai – Bangkok X Singapore – Abu Dhabi – Singapore Jakarta – Dubai – Jakarta Hong Kong – – Hong Kong
30
MONTREAL CONVENTION LIABILITY – PASSENGERS
Article 17(1)
“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking”
31
Article 17 “accident” Has to be “unusual or unexpected” from the
normal operations of the aircraft and external
to the passenger i.e. not an internal reaction
by the passenger
• Collision with meal cart
• Overhead bin locker incidents
• Severe turbulence
• Heart attack?
• Falls?
• Food poisoning?
• DVT X
32
Article 17 Case studies
• Facts
Passenger suffers heart attack on board aircraft but crew are not aware that it is actually a heart attack, only that passenger is not feeling well. Doctor onboard does not speak good English and so diagnosis is unclear.
Flight is not diverted.
Passenger brings a claim saying that had the flight been diverted, the damage to his heart would not have been so severe
Decision to not divert i.e. an omission – “accident”?
33
Article 17 Case studies
• Facts
Passenger keeps bag under seat. She bends to retrieve bag at the same time the passenger in front of her reclines his seat.
She claims she sustained an injury as a result.
• Accident?
Seats reclining is not “unusual or unexpected”
34
Baggage Claim Case Study And Article 17
• Facts
Passenger checks in a wheelchair as baggage
Wheelchair damaged (armrests missing) and claim brought for damage to wheelchair and a bodily injury claim.
Passenger claims that because she was unable to use her own wheelchair, her back condition worsened.
• Is the failure of the airline to locate the missing armrests an “accident”?
35
Article 17 Case Studies
• Facts
Passenger claims she bit into a foreign object when consuming a meal and injured her teeth and gums as a result.
She also claims that she has since developed a food phobia and can only eat meals she has prepared herself and is now depressed, anxious and cannot work as a result as she is a marketing manager and needs to entertain clients
• Is the psychological injury (depression and food phobia) secondary to the physical injury (injury to her tooth)?
36
Article 17 Case Studies
• Facts
Moderate turbulence. Passenger claimed she suffered Post Traumatic Stress Disorder (PTSD). She then claimed that she suffered headaches and hives (rashes) as a result.
• First Line of Defence – Moderate Turbulence not an “accident”
• PTSD not recoverable but what about secondary bodily injury?
37
113,100 SDRs (c US$174,660; 1 SDR = US$1.5443)
Strict liability - Only contributory negligence defence available
Carrier’s defence a) Damage not due to negligence or wrongful act / omission of carrier or its servants / agents b) Damage solely due to third party’s negligence or wrongful act / omission
38
BAGGAGE CLAIMS – COMMON ISSUES
•Automatic entitlement to limit of 1,131 SDRs
•What loss/damage has actually been suffered
•Replacement of bags – passengers should not profit
•Replacement items – reasonable
•Loss of opportunity due to missed business meetings
•Be careful when quoting or using conditions of carriage to deny claims – contravention of the Convention
39
LIABILITY FOR DELAY
Article 19
“The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage and cargo.”
BUT
Carrier not liable if it can prove that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
40
Article 19 & Personal Injury Case Study
• Facts
Plane diverted due to safety issues. Delay in alternative airport for example in Abu Dhabi and stuck in the airport for a long time. Wrong passenger steps used when disembarking, passengers had to jump.
Passengers claim for food, drink, telephone calls, cost of holiday accommodation
Loss of income, loss of business/business opportunity
Bodily injury – knee injury due to jump to steps, lack of access to the right food, passengers with stomach or bowel conditions.
• What is recoverable? Foreseeable
41
WHERE CAN CLAIMS BE FILED?
It’s the claimant’s choice
4 jurisdictions:
• Carrier’s domicile
• Carrier’s principal place of business
• Carrier’s place of business where contract made
• Place of destination
42
5th Jurisdiction (MC only) – Passenger Claims Only • 4 jurisdictions above • Passenger’s principal and permanent residence (nationality
irrelevant) • country must be a State Party • carrier must operate services to that country • carrier must either conduct business in that country from
premises which it owns or leases or through premises of another carrier with which it has a commercial agreement
43
Unique Aspects of US Litigation Which Make US Attractive to Plaintiffs from All Over the
World
• High Damage Awards
• Plaintiff contingency fees
• Extensive and broad pre-trial discovery
44
High Damage Awards • US damage verdicts are the highest in the world
• Most states allow economic and non-economic damages; some allow punitive damages
• Non-economic damages difficult to assess
• Damage verdicts continue to escalate • Juries decide all issues of fact – liability and damages • Juries are unpredictable and tend to be sympathetic to aviation accident victims • Even court rendered judgments can be influenced by jury verdicts
• Settlement values of death and injury cases continue to escalate
• While choice of law analysis may lead to non-US damage law, the damages are still assessed by a US jury or Court
45
Plaintiff Contingency Fees
• Fee based on a percentage of total recovery + expenses • no award, no fee
• Contingency fee system encourages litigation
• However, the defendant must bear own attorneys’ fees and costs regardless of outcome – even if defendant prevails!
46
Extensive and Broad Pre-Trial Discovery
• A major cost of litigation
• All relevant information may be requested: • Deposition of parties, non-parties, experts • Request for production of documents • Interrogatories • Requests to admit
• There is a duty to preserve all relevant information and documents when there is litigation or litigation is “reasonably anticipated”
• Failure to preserve evidence can result in sanctions, adverse inference, striking of pleadings or even separate cause of action for spoliation of evidence
• Duty extends to Electronic Data – emails, hard disks, back-up drives, laptop computers, PDA’s, voice mail, intranets, etc.
47
Carrier’s defences
Limits of liability
All necessary measures
Contributory
negligence
Carrier’s defences
No timely written complaint
48
COMPARISON OF LIMITS
Warsaw Convention Montreal Convention Checked baggage 250 gold francs/kg
1,131 SDRs (c. US$1,747) (including unchecked baggage)
Unchecked baggage Delay Passenger
5,000 gold francs 125,000 gold francs
1,131 SDRs (including checked baggage) 4,694 SDRs (c. US$7,249) Unlimited
1SDR Ω US$1.5443
49
Baggage Claims • First notification of claim • Passenger’s ticket/itinerary • Property irregularity report • Baggage Claim Form • Receipts for lost/replacement items • Police reports, if any, for alleged theft
cases • Records of attempts to contact
passenger in delay cases • Correspondence with claimant
DEALING WITH
50
Passenger Claims
• First notification of claim
• Exchange of correspondence with claimant
• Cabin crew incident report/voyage report
• Flight safety report, if applicable (for example in turbulence matters)
• Medical reports
• Receipts in support for medical/transport expenses
• Passenger ticket
• Witness statements, if any
• Medical records pre-incident if relevant (for example if there were pre-existing medical conditions)
51
Do’s and Don’t’s
Do’s
• Do Check authority to self-handle
• Do Notify Brokers/Insurers promptly
• Do investigate irregularity but remember that investigation reports may have to be disclosed if litigation ensue
• Do co-operate with organisations appointed by Underwriters to survey, investigate or handle claim
• Do encourage co-operation between global staff to facilitate information gathering
• Do preserve claim related documents either in hard copy or on computer system
• Do be careful when acknowledging a claim in case it might be construed as interrupting prescription
• Do consult your brokers/insurers when you are uncertain about anything
• Do take a signed receipt if you are making an advance payment
• Do take a comprehensive signed Release when settling a claim
52
Do’s and Don’t’s
Don’t’s
• Don’t admit liability or act in a way that could prejudice you as a Carrier and/or Underwriters’ interest.
• Don’t make any commitment to pay any sum of money without approval from your insurers/reinsurers
53
Q & A
54
Clyde & Co LLP accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2012
Thank you for listening
EU REGULATION 261/2004 ON DENIED BOARDING, CANCELLATION AND DELAY - DEVELOPMENTS IN THE CJEU
IATA WORKSHOP – PASSENGER CLAIMS
Vera Guedes, Senior Associate, Clyde & Co LLP - Dubai Abu Dhabi – 18 October 2012
EU REGULATION 261/2004 - SCOPE Applies to all pax departing from an EU airport Applies to flights operated by non-EU carriers Always applies to operating carrier
It applies also to non-scheduled flights
Directly effective in EU law Regulation is silent on jurisdiction. CJEU has held place of arrival
and departure have sufficient link but not stopover
EU REG 261/2004 – ESSENTIAL PROVISIONS
DENIED BOARDING CANCELLATION DELAY
Compensation
√
√ unless – two weeks advance notice – shorter advance notice
and satisfactory re-routing – extraordinary circumstances
?
3 hours +
Reimbursement √ √ 5 hours +
or re-routing √ √
Care
(refreshments, transfers,
Hotels, communications)
√
√
Flight length
vs.
+2/3/4 hours (STA)
€250 / €400 / €600
≤1500 km ≤1500 km
(≤3500)
All other flights
<2h <3h <4h
Reduced by 50% if re-routing and arrival:
€250 / €400 / €600
≤1500 km ≤1500 km
(≤3500)
All other flights
<2h <3h <4h
Reduced by 50% if re-routing and arrival:
CJEU’s VIEW OF EXTRAORDINARY CIRCUMSTANCES DEFENCE – WALLENTIN-HERMANN DECISION DEC 08
Circumstances only extraordinary if “not inherent in normal exercise
of activity of carrier and beyond actual control of carrier on account of its nature and origin” – e.g. manufacturer / authority reveals hidden defect or damage to aircraft by
sabotage/terrorism/ground handling malfunction
Necessary for carrier to also show extraordinary circumstances could not have been avoided by all appropriate measures – compliance with minimum rules on maintenance no defence!
Need to show deployed all resources and financial means at its
disposal and still could not avoid without intolerable sacrifices in light of capacities of its undertaking
EXTRAORDINARY CIRCUMSTANCES EGLITIS AND RATNIEKS v DEPARTMENT OF THE ECONOMY OF LATVIA – CJEU - MAY 2011
Flight cancelled because of closure of Swedish airspace (and crew out of hours when it reopened after a little over two hours)
“all reasonable measures” requirement: air carrier “must reasonably, at the stage of organising the flight, take account of the risk
of delay connected to the possible occurrence of extraordinary circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end”
reserve time on case-by-case basis; must not require the carrier to make “intolerable sacrifices”. The time periods specified in Art 6(1) (2/3/4 hours) are irrelevant for these purposes.
Art 5(3) – reasonable measures to avoid the extraordinary
circumstances, not the cancellation.
STURGEON v. CONDOR / BÖCK v. LEPUSCHITZ v. AIR FRANCE – CJEU – NOV 2009 (1)
Delay or cancellation? Delay rather than cancellation if flight operated in accordance with the
airline’s original planning, however long the delay
Normally cancellation where a delayed flight is “rolled over” into another
Non-determinative factors: – description given by the airline or airport – whether or not pax recover their baggage and/or obtain new boarding cards – whether or not the pax are essentially identical to the pax booked on the
original flight Delay at arrival ≥ 3h: compensation as for cancellation or denied boarding
(subject to the extraordinary circumstances defence)
Court’s reasoning: Recitals make it clear that the Regulation seeks to ensure a high
level of protection for pax Recital 15 mentions delay, as well as cancellation, in the context of
extraordinary circumstances Principle of equal treatment – comparable situations must not be
treated differently The provisions conferring rights on pax must be interpreted broadly
Where a provision is open to several interpretations, preference
must be given to that which ensures it retains it effectiveness
STURGEON v. CONDOR / BÖCK v. LEPUSCHITZ v. AIR FRANCE – CJEU – NOV 2009 (2)
Principle of equal treatment – CJEU’s main concern Pax whose flights are cancelled with less than 7 days notice are
entitled to compensation if they are not re-routed on a flight that departs no more than an hour earlier and arrives less than 2 hours later than the originally scheduled time – i.e. if they suffer a loss of time of at least 3 hours Carrier can reduce the compensation payable in respect of
cancellation of long haul flights from €600 to €300 where the passenger is re-routed so as to arrive not more than 4 hours late. On this basis, any compensation should similarly be reduced to €300 in the case of delay of less than 4 hours
STURGEON v. CONDOR / BÖCK v. LEPUSCHITZ v. AIR FRANCE – CJEU – NOV 2009 (3)
STURGEON v. CONDOR / BÖCK v. LEPUSCHITZ v. AIR FRANCE – CJEU – NOV 2009 (4)
Controversial: Contrary to clear wording of the Regulation
Contrary to former CJEU case law
If provision is contrary to EU law – ineffectiveness not re-writing by judiciary
Contrary to Montreal 99 (exclusivity and non-recoverability of non-
compensatory damages)
Contrary to legislative intent
Neither of the referring courts raised the issue of compensation for delay
Inconsistent with the principle of legal certainty
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (1)
Joint judicial review application – TUI, BA, easyJet and IATA v UK CAA English High Court referred following questions to CJEU:
– Does regulation require compensation to be paid to delayed pax? – If not, are provisions of Regulation invalid – breach equal
treatment? – If Regulation does require compensation, are provisions on
cancellation/delay invalid? – If not require compensation, does ruling have any effect?
UK Court proceedings stayed. Others not but some Courts may be
persuaded to stay. Commission takes view all NEBs should apply Sturgeon (Kallas – December 2011) Joint actions (“TUI case” / Lufthansa vs. Nelson (Amtsgericht
Cologne)
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (2)
Main arguments: Inconsistency with IATA and ELFAA ruling (2006)
Arbitrary and unjustified fixing of 3h limit
Incompatibility with international law (Montreal 99)
Principles of proportionality and legal certainty
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (3)
The Advocate General’s Opinion (15 May 2012)
No reason for CJEU to reconsider its interpretation in the Sturgeon
ruling Airlines should pay compensation to pax if delay ≥ 3 h
Compatibility with Montreal 99, proportionality and legal certainty
CJEU’s interpretation should apply from entry in force of Regulation
(17 Feb 2005) unless otherwise limited by CJEU
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (4)
Disappointment (with General Advocate’s Opinion)
Insufficient consideration given to principle of legal certainty
Did not adequately deal with the Amtsgericht Cologne’s question (is
it non-compensatory damages? If so, compatibility with Art 29 Montreal 99? Proportionality? (airlines costs)
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (5)
Likely effects (if CJEU follows the Gen. Adv. Opinion; decision expected 23 Oct 2012)
Delay ≥ 3 h = pax compensation (art 7 of Regulation)
Other pax rights for delay remain unchanged
If “extraordinary circumstances”, no compensation
Stayed proceedings will resume
Non-litigated claims on hold should be addressed
UNCLEAR POSITION REGARDING LIABILITY FOR DELAY – THE “TUI” ACTION (5)
Grounds for defence of delay claims
no private law cause of action for pax (?) – Hendy vs. Iberian Lineas de
Espana SA (2001) - (but caution: direct effect of Regulation) exclusivity of International Convention
FACTORS FOR IMPACT OF COMPENSATION
Extraordinary circumstances
Flight distance
Time of arrival (50% reduction)
Type of aircraft and load factor
Length of delay
Other “soft” factors: information to pax; sufficient care and assistance; efficient hotel transfers; acceptable overnight accommodation, etc
Type of pax
Airline’s attitude to settlement
COMMISSION’S COMMUNICATION 11 APRIL 2011
Launch in 2011 of Impact Assessment to assess proportionality of
current measures with view to proposing further measures including of a legislative nature Impact assessment of other possible remedies and interrelation of
Regulation and pre-existing law, particularly Montreal Convention May see new measures as in other modes e.g. ferry pax limit no.
nights/price of hotel Measures to encourage harmonisation amongst approach of NEBs
towards enforcement Measures to raise pax’ awareness of their rights
Promote more uniform and quick handling of complaints-standard
form for NEBs to request
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Partners worldwide Offices across Europe, Americas, Middle East, Africa and Asia.
Clyde & Co LLP accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2012
Thank you for your attention!
Any questions?
CONTACT DETAILS
Vera Guedes
Senior Associate / Dubai office
Direct line: + 971 4 3844 682
Email: [email protected]
IATA World Passenger Symposium Abu Dhabi – 18 October 2012 Alison McKenzie Partner Gates and Partners LLP www.gatesandpartners.com
SOCIAL MEDIA – ITS RAPID GROWTH AND THE IMPACT
FOR AIRLINES
FACEBOOK STATISTICS
Current Facebook population in excess of 1 billion users increasing at rate of 10% a year
If Facebook were a country it would be the 3rd biggest in the world after:
China approx. 1.35 billion India approx. 1.2 billion
Triple the 3rd biggest ‘country’ which is the US at approx.
310,000,000
FACEBOOK STATISTICS 2
On average 530,000 people join Facebook everyday, therefore 6.1 a second, compared to India where birth rate is 1 baby is born every 1.2 seconds and China where there is one birth every 1.7 seconds
In the UAE there are 3,282,220 Facebook users, which is approximately 65.7% of the population and 86.88% of the online population
This number grew by 165,320 in the last six months
FACEBOOK STATISTICS 3
50% of users log in every day
48% of 18-34 year olds check FB when they wake up
28% before they have even got out of bed
The average user has 130 Facebook ‘friends’
TWITTER STATS
Over 500 million active users
3 years, 2 months and 1 day is the time from the first tweet to the billionth tweet
There are now a billion tweets per week
On average 340 million tweets sent per day
7,196 tweets per second is the record set during the women’s 2011 World Cup Final between Japan and the US
YOU TUBE STATS
YouTube has over 800 Million unique users
72 hours of videos are uploaded every minute
Over 4 billion hours of video are viewed each month
500 years of YouTube videos are watched everyday on Facebook and over 700 YouTube videos are shared on Twitter every minute
THE STORY OF DAVE CARROLL
DAVE CARROLL V UNITED AIRLINES
Impact for Dave Carroll In excess of 11 million hits Now a successful recording artist – past albums sold more
copies Travels the world speaking about the impact of social media
Impact for United Airlines The Times reported share price drops 10% within 4 days of You
Tube clip Drop in share price costs 180 million dollars – equivalent to
53,000 new guitars They now use Dave’s video clip as part of in-house training
CLAIMANTS USING SOCIAL MEDIA
95% of tweets re airlines are negative Instant access to the world, much quicker than standard press
– images of the US Airways aircraft plane that landed on Hudson immediately online
Sent from pax via their smart phones
CLAIMANTS USING SOCIAL MEDIA
Boeing 737 Continental aircraft went off runway on 20 Dec 2008 and pax tweets developments from bus
AIRLINES USING SOCIAL MEDIA
Set up own Facebook pages Respond to criticism – seek advice if FB Group can be taken
down. React promptly to tweets * Add comments on a You Tube clip. Silence is not the best policy
Passenger on Virgin flight delayed for 30 mins. He notices reading light not working and ‘tweets’. The department within Virgin that follows social medial pick it up straight away and send technician to fix it before flight takes off.
AIRLINES USING SOCIAL MEDIA (2)
Play detective on FB Medical report states
AIRLINES USING SOCIAL MEDIA (2)
Facebook profile shows
FACEBOOK - US CASES
McMillen v Hummingbird Speedway Inc & Romano v Steelcase - 2010
Social media is not privileged or protected by a right of
privacy; Social media accounts (including non-public portions) were
relevant and discoverable; and The public portion of the social media profile clearly
contradicted the plaintiffs allegations and therefore the Court granted access to the non-public portion
FACEBOOK - US CASES
Tompkins v Detroit Metro Airport - 2012 Distinguished cases of McMillen and Romano The inconsistency between the public portion of the social
media account and the plaintiffs pleaded allegations was not sufficient to permit a “fishing expedition”
There must be a factual basis for the disclosure request, otherwise the discovery request needs to be narrowed appropriately
AIRLINES USING SOCIAL MEDIA (3)
Monitor FB groups of disenchanted Claimants
Valuable insight into how they feel – can establish who will settle and who will fight
Learn tactics in advance
Lesson is people are still careless when it comes to social media
AIRLINE X AND THE SPANISH WEBSITE ERROR
‘Mistake’ occurs in October 2011 – person on forum for backpackers notified other members of the forum and message spreads via Facebook
End result 360 (approx) mainly Spanish citizens book first class flights from Madrid to Sydney for ‘free’
Facebook group set up. Comments on Facebook contradict statement in letters. Claimants admit on Facebook they knew that airline had made a mistake
Gates and Partners LLP 5th Floor, Capital House 85 King William Street London EC4N, 7BL Tel: +44 207 337 0300 Fax: +44 207 337 0301 www.gatesandpartners.com
Any Questions?
PASSENGERS CLAIM WORKSHOP
AGENDA
When does a carrier fall within the ambit of the regulation?
What happens in the event of a schedule change and putting the passenger first
Handling passenger claims Practical issues faced with the application
of the regulation
FALLING UNDER THE AMBIT EC 261
The Regulation applies to: - All flights departing from a European airport - Flights departing outside Europe
where the airline is European and the destination is a European airport
A SCHEDULE CHANGE?
Steps taken when notified of a schedule change:
- Route planning department - World Wide Call Centre informed - Ground Handlers informed
PASSENGER CLAIMS?
Most claims handled at the airport Forwarding claims to Customer Care
Department Priority to EU passengers Timeline for response Advise of Legal Department
PRACTICAL ISSUES
Does the return flight fall under the ambit of the Regulation?
What happens if the cancellation/delay happens in transit?
Effects of the Sturgeon Case on delayed flights
When can a carrier rely on “Extraordinary Circumstances”?
CONCLUSION
Regulation is complex Customer-facing staff need briefing Co-ordination can help minimize the
impact of disruptions Need for a uniform application throughout
Europe
98
Judges’ Bench Leslie Lugo, IATA Anita Quy, Clyde & Co. Vera Guedes, Clyde & Co. Alison McKenzie, Gates and Partners Alison Jones, Oman Air Alaa Alqassab, Gulf Air
