Mark Pestronk
Mark Pestronk

Q: My family and I had planned a wonderful transatlantic cruise. Even though our flight was supposed to leave the U.S. in plenty of time to catch the ship in Europe, our flight got canceled, and we just missed the cruise ship's departure. Unlike most cruises, this one made no other stops on the way to the U.S., so we missed the entire cruise and could not get any refund of our $12,000. I understand that, unlike domestic U.S. flights, international flights are subject to a law that allows passengers to sue for delays. What law is that? How do we sue? Could we get awarded the price of the cruise? What about damages for loss of enjoyment of our vacation? What do you think our chances of winning are? Is there an equivalent remedy for domestic flights?

A: It is indeed possible to successfully sue for damages resulting from a delay of an international flight to or from the U.S. However, such suits are rare and difficult to win.

A treaty called the Convention for the Unification of Certain Rules for International Carriage by Air, which is known as the Montreal Convention, governs delays on international flights. The convention is enforceable here because the U.S. is a party and because the Constitution gives treaties the force of federal law.

Article 19 of the Convention states: "The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves 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."

At first reading, this looks like a very consumer-friendly law, but court precedents have limited its literal language in two ways. First, you can successfully sue only for economic damages, which means money that you spent or lost due to the delay. This rules out damages for things like stress and loss of enjoyment.

Second, courts have held that the phrase "took all measures that could reasonably be required to avoid the damage" doesn't literally mean that the airline must do absolutely everything it can do. Rather, it just means that, on the whole, it took measures reasonably available and reasonably calculated to prevent the subject loss.

Since most delays are caused by weather, air traffic control or unforeseen mechanical problems, the courts focus on what the carrier did to help the passenger. If what it did was reasonable, the carrier wins. Conversely, if the carrier did nothing to help the passenger get to his destination as promptly as possible, the plaintiff can win.

In your case, it looks like the carrier may have done nothing for you and offered you no compensation. Therefore, you have a reasonably good case to recover the price of the cruise plus the cost of the hotels and meals in Barcelona and even the cost of the flight home.

Unfortunately, almost all U.S. cases that have been reported have been dismissed, in whole or in part, mainly because the carrier provides evidence that it took some measure to avoid the delay and then did something to accommodate the passenger, and then the plaintiff cannot prove otherwise. I would have to rate your chance of winning as low.

For domestic flights with no international connections, there is no equivalent law, and each airline's contract of carrier states that flight schedules are not guaranteed.

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