Mark Pestronk
Q: In your May 15 column ("No recourse to sue airlines over losses due to a delayed flight"), you explained why passengers cannot sue airlines for delays. Does your explanation also cover transatlantic flights? I ask because an agency client and his family recently flew on a U.S. carrier from a U.S. city to a European cruise port. Even though they prudently planned to get to Europe a whole day before the cruise, the outbound flight was delayed for so long that they missed the cruise departure and had to fly to the next port. Then their return flight to New York was delayed for so many hours that they had to stay overnight near JFK and buy new tickets to get home to Tennessee. Someone told them they could successfully sue the airline for the delays, but I told them that cannot do so because the airlines' contracts of carriage specify that they have no responsibility for delayed flights. Who is correct?
A: You are right about the contracts of carriage. However, when delayed flights to or from Europe are involved, the European Union's Air Passenger Rights Regulation (No.261/2004) comes into play. It provides for payments of fixed amounts for delays.
If the flight is more than 2,175 miles, which I believe all transatlantic flights are, and arrives four or more hours late, each passenger is entitled to around $670. However, there are important exceptions.
The first exception is that the EU rule does not apply to U.S.-originating flights by U.S. carriers. For U.S. airlines, the rule applies only to flights originating in the 28 EU countries.
The second exception is that no compensation is due if the delay was caused by "extraordinary circumstances," which is not defined by the regulation but that European courts have determined to include weather delays but not mechanical delays, unless the mechanical problem was caused by hidden defects or sabotage.
Assuming that there were no extraordinary circumstances, the family is entitled to around $670 per person for a four-hour-plus delay on the return flight. For the outbound flight, the regulation provides no remedy unless the carrier is based in an EU country, in which case the same regulation would apply.
Even for the return flight, there is a catch. In 2015, a federal appeals court held that you cannot sue in a U.S. court for enforcement of the EU rule if the carrier refuses to pay what it owes you. You can sue only in Europe.
However, another source of law might provide a remedy for the outbound flight. The Montreal Convention is a treaty that allows passengers to claim their economic losses due to delays on any flight between cities in countries where the treaty applies, including the EU countries and the U.S.
Under the Montreal Convention, "carriers shall be liable for delay of passengers, baggage or cargo" and allows for the collection of "damages occasioned by delay."
There are no fixed amounts payable, so each passenger has to prove his loss, and the carrier escapes liability if it can show that it "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."
Bringing a case under the Montreal Convention would be very difficult because the carrier would undoubtedly use the "took all measures" defense, in which case you would probably need costly expert witnesses to prove otherwise.