In U.S. pax can't sue over flight delays, but E.U. another matter

By Mark Pestronk
Mark PestronkQ: My agency's clients were on a flight that was delayed for about 13 hours. The carrier refused to put them on another flight, causing them to miss their daughter's wedding. Another client's seven-hour flight delay led her to miss a very important business meeting. Do these clients have any legal rights to compensation or damages?

A:
Under U.S. law, they have no right to compensation of any kind. There is no federal statute or regulation protecting consumers from losses due to delays other than tarmac delays, and even in the latter case, passengers have no right to compensation, although the government can fine the carrier.

You cannot even sue airlines for breach of contract if you suffer a loss due to a delay, as the airlines' contracts of carriage expressly disclaim any liability for delays, failure to adhere to schedules, schedule changes or cancellations.

For example, Delta's contract of carriage states: "Published schedules, flight times, aircraft type, seat assignments and similar details reflected in the ticket or Delta's published schedules are not guaranteed and form no part of this contract. Delta may substitute alternate carriers or aircraft, delay or cancel flights, change seat assignments and alter or omit stopping places shown on the ticket at any time. Schedules are subject to change without notice."

So your clients could not successfully sue the airline in the U.S. On the other hand, if the delay occurred on a flight to or from the European Union, the law is quite different, especially as a result of a recent ruling by the European Court of Justice.

Under an E.U. regulation that went into effect in 2005, passengers on canceled flights are entitled to the same compensation as bumped passengers, unless the flight is canceled for reasons wholly beyond the carrier's control, such as weather. The amount of compensation is as follows: (a) 250 euros (about $320) for flights of 1,500 kilometers (about 900 miles) or less; (b) 400 euros for all intra-E.U. flights of more than 1,500 kilometers and all other flights between 1,500 and 3,500 kilometers; and (c) 600 euros for all flights not falling under (a) or (b).

For example, if your transatlantic flight is canceled, the carrier must pay you 600 euros, in addition to refunding your money if you don't want to take another flight.

In 2009, the European Court of Justice issued a decision holding that the 2005 regulation should be extended to delays as well as cancellations, as long as the delay exceeds three hours. This controversial judge-made rule was not widely observed in practice, and airlines and governments asked the court to reconsider its ruling.

In late October, the court issued a lengthy and well-reasoned decision reaffirming its 2009 decision. The court stated: "Since passengers whose flights are canceled are entitled to compensation where their loss of time is equal to or in excess of three hours, the Court finds that passengers whose flights are delayed may also rely on that right where, on account of a delay to their flight, they suffer the same loss of time."

In general, travel law in Europe is more pro-consumer than it is in the U.S., and the rules regarding compensation for delays and cancellations are an excellent example of this principle.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com. 
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