Norton Rose Fulbright represents a number of international airlines in respect of claims made by passengers for compensation as a result of their flights being delayed or cancelled.  There is no general law, which gives a passenger the right to claim compensation; rather, this is dependent on the country in which the claim is instituted.

EU Countries

EU Member States and countries not in the EU (such as Norway, Iceland and Switzerland), give passengers the right to claim compensation if they arrive at their final destination in excess of three hours late, because of a delay or cancellation.

This Regulation also applies to any flight departing from a Member State airport, or a flight arriving into a Member State airport on an EU carrier airline.  Therefore, if a South African is travelling to or from an EU Member State on an EU carrier airline then they may have a claim for compensation for a delay or cancellation.

Importantly, the courts have considered the instances where passengers’ flights are delayed under three hours but this causes them to miss their connecting flight, resulting them in them reaching their final destination with a delay in excess of three hours.  In such cases, the courts will consider the entire journey and the passenger will be entitled to a claim even if the delayed flight was in an EU Member State and the final destination was not.

The amount that the passenger can claim varies based on the distance of the flight. Compensation is generally between € 250 to € 600 (R 4152 to R 9966).

There is also a list of “extraordinary circumstances” in terms of which airlines can defend such claims which includes adverse weather conditions, on-board medical emergencies, short-notice illness of the crew, foreign object damage to the aircraft, security risks, airport closures, Air Traffic Control restrictions, industrial action  by Air Traffic Control staff, bird strikes and hidden manufacturing defects.

Technical defects, operational planning decisions or crew having reached their flight time limitation are some of the common causes of delays or cancellations that are not considered an “extraordinary circumstance” for the purposes of defending a delay or cancellation.

Proving the existence of an “extraordinary circumstance” alone is an insufficient defence.  The airline is further required to set out in detail all reasonable measures it had taken to mitigate the delay or avoid the cancellation as well as reasons why certain measures such as using an alternative aircraft or operating a flight from an alternative airport could not have been considered in the circumstances.  Although the onus on the airline is quite burdensome, the airline is required only to take reasonable measures and not make intolerable sacrifices.

USA

Although there are currently no laws relating to compensation to delays and cancellations the US Department of Transportation is in the process of enacting a Passenger Rights Bill which stipulates certain instances where compensation is payable:

• For US trips only where flights are overbooked, which is not illegal, and a passenger is involuntarily rebooked on a later flight.
• For international flights, passengers may be able to recover reimbursement under Article 19 of the Montreal Convention for expenses resulting from a delayed or cancelled flight by filing a claim with the airline.  If the claim is denied, it may be pursued in a small claims court.  Once again the onus is on the airline carrier to prove that it took all reasonable measures to mitigate the delay or avoid the cancellation.

No compensation is due if the airline arranges alternative transport because of an overbooked flight which is scheduled to arrive at your destination within one hour of your originally scheduled arrival time.  Alternative transport which results in an arrival delay in excess of an hour can result in an airline having to compensate a passenger up to $1 350 (R 20 520).

If the delay is between one and four hours after the originally scheduled arrival of the flight, the passenger is entitled to a full refund.  If the delay is more than four hours, the passenger will be entitled to an automatic full refund, a free replacement flight, $1,350 cash compensation and a meal voucher.

South Africa

South African airlines have no obligation to compensate passengers for delays or cancellation.  This includes providing meals, hotel accommodation or vouchers.  Passengers who are not reimbursed or offered a comparable flight by the airline in respect of cancellations, do have the right to lodge a complaint with the National Consumer Commission.  This process is free and may result in the airline being served with a compliance notice if the Commission finds that the airline has contravened the Consumer Protection Act.

The airline will be required to refund the consumer with interest up to the date of the refund.  A consumer is only entitled to a refund or a comparable alternative and if the compensation is unsuitable to the passenger, they will have no claim.

Although there has been no indication of South Africa adopting legislation similar to EU in the near future, it is unlikely that the courts will be able to deal with the volumes of passenger claims.  It is likely that a specialised tribunal, to deal with such claims, will have to be established.

Until such time, passengers can still enforce their rights in terms of the Consumer Protection Act.

It is advisable for airlines to start keeping records of flight delays and cancellations and provide passengers with sufficient notice is such instances.  In circumstances where flights are delayed or cancelled, airlines should also start taking reasonable measures by proving alternative flight options to its passengers, hotel accommodation or meals or even sourcing alternative aircrafts or crews to operate flights if necessary.

Written by Kiasha Nagiah, Associate, Norton Rose Fulbright