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PASSENGER RIGHTS

PASSENGER RIGHTS. By P.P.C. Haanappel At the Gdansk Air & Space Law Conference 2013. Passenger rights as a contractual issue. The contract of carriage between airline and passenger International Air Traffic / Transport Association (IATA) / Airline Conditions of Contract and Carriage

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PASSENGER RIGHTS

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  1. PASSENGER RIGHTS By P.P.C. Haanappel At the Gdansk Air & Space Law Conference 2013

  2. Passenger rights as a contractual issue • The contract of carriage between airline and passenger • International Air Traffic / Transport Association (IATA) / Airline Conditions of Contract and Carriage • First IATA Conditions in 1927 (Vienna Conditions) • Substantially revised in the so-called Bermuda Conditions of the year 1949, and thereafter

  3. Freedom of contract • A fiction • Inequality of bargaining power • State / (inter)governmental intervention

  4. First international intervention • The Warsaw Convention on air carrier’s liability of the year 1929 • Quid pro quo: limited liability of the air carrier in exchange for presumed liability of the carrier

  5. The difficult area of delay in the Warsaw Convention • Article 19 of the Warsaw Convention • Clause 9 of the (former) IATA Conditions of Contract • Conflict: some regulators and courts intervene • E.g., Swiss government • US CAB (Civil Aeronautics Board) • German Bundesgerichtshof • The problem of delay continues to plague us!

  6. Montreal Convention 1999 • The regime for delay (Article 19) remains substantially the same, in comparison with the Warsaw Convention; the amount of damages is expressed in SDRs (max. 4150 SDR = approx. 3650 Euro) • The problem remains that denied boarding compensation (DBC) and flight cancellations are not covered by the Warsaw / Montreal conventional system

  7. Denied Boarding Compensation • Problem originates with computerized reservation systems (CRS) • Overbooking and “no shows” • The US Civil Aeronautics Board first intervenes in the 1970s: Part 250 CFR (Code of Federal Regulations) • The EU first intervenes in 1991: Regulation 295/1991 on DBC

  8. EU Regulation 261/2004 • Extended from DBC to also: • Flight cancellations; • Long flight delays. • Compatibility, in the area of delay, between Regulation 261 and the Montreal Convention? • Initial attitude; • Judicial “activism” in the European Court of Justice: the Sturgeon and TUI cases of 2009 and 2012

  9. Revision of Regulation 261 • Commission proposals in 2013 • Action in the European Parliament 2014 • The role of National Enforcement Bodies (NEB) • Can the new text solve the legal conflict between the European Regulation and the worldwide system of Article 19 of the Warsaw / Montreal conventional system? • The new German legislation in the Gesetz zur Schlichtung im Luftverkehr (Act on dispute settlement in air transport), in force 1-11-2013

  10. Other aspects of passenger rights • Voluntary or compulsory system • The European Civil Aviation Conference (ECAC) • The European Union (EU) • Other jurisdictions

  11. Proliferation of different sets of passenger rights • Conflicts of law and policy • Is a worldwide solution desirable and feasible?

  12. The International Civil Aviation Organization (ICAO) • Solution through Annex 9 on Facilitation?

  13. The International Air Transport Association (IATA) • Solution through the Passenger Services Conferences?

  14. The issue of consumer / user input • The issue of global representativeness

  15. Conclusion • Questions? • Discussion?

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