Travel Law | Mayo Wynne Baxter

Airline safety and restraint of passengers

by Miranda Jenkins, January 10th, 2013

The safety of passengers and staff during travel is a key consideration for airlines and tour operators, and the recently published first edition of the Guidance on Unruly Passenger Prevention and Management by the International Air Travel Association (IATA) provides guidance to airlines on how to prevent and deal with unruly or disruptive passengers. Safety in the air is becoming more of a concern to the travel industry and to fellow passengers, and it is important for airlines and tour operators to be aware of what the risks are and what action they are allowed to take during flights to maintain the safety of their passengers and crew.

Passengers often view their flights to and from their destination as an extension of their trip. Alcohol is frequently consumed, and excessive drinking is a major factor in the disruptive behaviour by travellers. Drunk or disruptive passengers can cause a nightmare for both airline staff and passengers alike. Airline staff are aware that they can restrain passengers for the safety of others but it is not always clear what the rules are and how far they can go.

A photo of a passenger restrained in his seat with plastic ties and tape has appeared recently on various social media, reportedly after an incident where he hit, screamed and spat at other passengers during a flight. He was restrained and gagged by crew and passengers during the flight and was arrested on his arrival at the destination airport. Another recently reported incident involved the fellow passengers restraining a man during the flight with their belts. He had been warned by the crew but the passengers took action to restrain him themselves.

These incidents have concerned tour operators and airlines, especially in the wake of the awful terrorist attacks of 9/11 and subsequent attempts on other flights. Most airlines carry restraint kits on their flights to deal with unruly passengers, and airline staff should be given proper training on how to deal with these passengers. A verbal warning should be given first and if that doesn’t work, the plane’s captain should be consulted. Staff should make accurate records of what was said and done and the reasons for any restraints. Staff can request assistance from passengers if necessary. Restraint should be used as a last resort however, and airlines and their crew should be careful not to go beyond the levels of restraint and unreasonably cause injury, which could lead to a claim and possible damages. Restraints and excessive gagging can cause injury and even death if used improperly or too harshly.

The international laws governing the restraint of passengers during flights are mainly covered in the Tokyo Convention (1963) and the Montreal Convention (1971). The Tokyo Convention stresses that the captain of the plane in charge of the safety of the flight and therefore will decide whether a passenger needs to be restrained. The plane’s destination country’s authorities should be notified before landing that there is a person being held under restraint and why they are being restrained. The Montreal Convention governs international air travel and imposes stricter liabilities on airlines and tour operators for injuries caused. It provides the basis for claims for damages by passengers.

Aside from these international conventions, passenger’s behaviour is also subject to the laws of the country in which the plane is registered. Airlines, tour operators and staff should ensure they are aware of the national laws of that country and what they can and cannot do.

Unruly passengers should be mindful that their dangerous or disruptive behaviour will be reported to the UK police and to the plane’s destination authorities, which can lead to a prosecution and a criminal conviction. Following from this an airline or tour operator can make a civil claim against the unruly passenger to recover their costs, such as additional fuel charges, landing charges and other expenses, that were incurred as a result of their disruptive behaviour.

The Guidance on Unruly Passenger Prevention and Management published by IATA in December 2012 provides helpful assistance on both the prevention and handling of incidents. It ‘provides practical steps that an air carrier can take to prevent and manage unruly passenger incidents which could contribute to increased safety and costs reduction’.

IATA’s Guidance On Unruly Passenger Prevention And Management

For more information or advice please contact our Travel Department.

Time for take off for Sussex businesses?

by Dean Orgill, January 2nd, 2013

A second runway at Gatwick is just one of the options being considered to increase the UK’s airport capacity. While decisions made in 2013 will affect Sussex’s long term economic prospects, the various options are likely to remain grounded for some years.

Sir Howard Davies is leading a commission to examine the scale and timing of additional capacity for UK aviation. The final report is due in the summer of 2015, shortly after the next general election. Even if ministers were to accept the proposals immediately statutory and planning requirements will take time and any additional runway or airport is unlikely to be completed until the mid 2020s at the absolute earliest.

Nevertheless 2013 will be a key year in the process. By the end of the year the Davies Commission is to make an initial report, dispensing with unfeasible options. Any contender hoping to be considered must be included as a viable option at this stage.

Gatwick Airport is proposing a second runway for which its Chief Executive Stewart Wingate says it has “the space, capability and access to financial resources”. He adds that a new runway would allow the airport to compete and grow, which he says will add to the choice available to passengers. Given the ongoing investments made in the airport one would perhaps not expect anything other than an expansion plan, but what are the implications for Sussex and the region, as a whole?

The Institute of Directors nationally has backed proposals for a second runway at Gatwick as well as a third (and fourth) at Heathrow. It also argues that further infrastructure investment – especially in the rail network – will be vital to take full advantage of any increased aviation capacity. Any such major infrastructure projects will have a significant economic impact during construction. There will also be long-term economic consequences for those regions which are either selected or rejected in the final proposals. In Sussex, for example, the economic landscape, as well as the physical one, will look very different if Gatwick has a second runway compared to all the extra capacity going to Heathrow, or even an entirely new “Boris Island” airport on the Thames Estuary.

There are other issues of course, not least of which will be the environmental impacts of any decision. Any scheme will have winners and losers, and the merits of each proposal will look very different depending on your perspective.

At this consultation stage groups and individuals across the country are being encouraged to look at the options, consider their views and make them known. Various groups are already in communication with the interested airports and can pass on opinions, but anyone can make their own submissions to the Davies Commission at airports.enquiries@airports.gsi.gov.uk. Whatever your thoughts it is time to make them heard.

Dean Orgill, Chairman at Mayo Wynne Baxter, is a non Executive Director of Gatwick Diamond Initiative, a member of the Brighton & Hove Economic Partnership and speaks on policy matters for Institute of Directors, Sussex.

CONSUMER COMPENSATION FOR CANCELLED AND DELAYED FLIGHTS

by Lee Hills, December 13th, 2012

In a recent ruling, the European Court of Justice has provided clarity in respect of the time period in which claims can be brought by consumers for fixed compensation under the “Denied Boarding Regulations”.

In the case of Morë v Koninklijke, the Court was asked to consider the Defendant’s arguments that the Montreal Convention applied to such claims. The Convention imposes a 2 year limitation period in which to bring claims. The Court determined that the Denied Boarding Regulations fell outside the scope of the Convention. Consequently, the time limit for commencing such claims will be determined in accordance with the rules of each individual member state on the limitation of actions.

In the case of Morë v Koninklijke Spanish law applied, which provides for a 10 year limitation period.

In English law, the Limitation Act 1980 states that a claim should be not brought after the expiration of 6 years from the date at which the cause of action arose. As a consequence, it would seem that passengers in England and Wales bringing claims for fixed compensation under the Denied Boarding Regulations are now provided with a much more generous period in which to do so than other types of aviation claims.

By Lee Hills

New harmonised rules for pilots not met with harmonious reaction

by Martin Williams, October 8th, 2012

On 1 October 2012 the European Aviation Safety Agency (EASA) published proposals (known as an Opinion at this stage) to amend the current EU wide rules on flight and duty time limitations and rest requirements for commercial air transport. These changes are aimed at harmonising standards across Europe. The next step in the process is for the Opinion to enter the EU legislative process. It is anticipated that the new rules will be adopted after mid-2013 and fully implemented by the end of 2016.

The Opinion addresses the issues of fatigue and does not look to increase overall pilot flight hours. Across the EU night duty hours will be reduced and the rest times for flights with time zone crossings will be increased. There will also be new rules for limiting standby time.

The Opinion has drawn upon more than 50 scientific studies and consultations took place with flight and cabin crew organisations, airlines and national governments. However, the final proposals have not met with universal approval.

The British pilots union, Balpa, says that the proposals, if adopted, will mean more early starts, longer night shifts and cuts to crew numbers as they will replace the UK’s current domestic standards. Balpa’s concern is that the distribution of hours will make matters less safe even though the total number of hours will be unchanged. They have cited concerns raised by the House of Commons Transport Select Committee, union members and safety campaigners. Amongst the latter group are families of the victims of the crash of Continental flight 3407 in Buffalo, New York. That crash was partly the result of fatigue. They have called for the UK government to reject the harmonising changes.

However, the Civil Aviation Authority, the UK’s safety regulator, is unmoved and says that overall the changes will keep passengers as safe as before.

By Martin Williams

Ban on Travel Traders Profiting from Card Payments

by David Gordon, September 25th, 2012

Many in the travel sector will be aware that the Office of Fair Trading has spent the last year or so investigating the use of disproportionally high credit and debit card charges by certain elements in the travel industry and particularly those charges historically imposed by some budget airlines at the end of the booking process.

This was all in response to a “super-complaint” lodged by “Which?” with the OFT. Many of the budget airlines have already altered their systems to include such charges or “administration fees” in their headline price but it now looks as though the government is going to legislate as well.

BBC News recently reported the Consumer Affairs Minister, Norman Lamb, as having said, “Traders will no longer be able to make a profit by charging the consumer for credit or debit card use above the amount it costs them to process that payment”

Consultations are currently being undertaken with a view to regulations being brought in, possibly as early as January next year, to stop traders, not just in the travel sector, from imposing excessive charges or “hiding” such charges at the end of the purchasing process.

Whilst the exact terms of any legislation are not at this stage available, we can be fairly certain, given what the Minister has said, that any charges for card payments will, going forward, have to be no greater than the reasonable costs incurred by the relevant trader for processing the payment. Presumably the sort of costs we are looking at are the actual charges payable by the trader to the relevant card issuer plus, possibly, a small notional amount to take account of the fact that the trader has to “administer” the payment of such costs to the card issuer. Given that this is a straightforward and usually automated process, it may well be difficult for traders to establish that there really is any additional administrative cost over and above the card issuer’s percentage.

In addition to address the concern about “transparency”, it looks as though it will no longer be possible to hide these charges at the end of the transaction. Consumers will, in future, have to be given a clear and transparent breakdown, almost certainly at the start of each transaction, of exactly what additional charges will be applied for card payments.

In essence, it looks like this is one gravy train for traders that is about to be stopped in its tracks.

By David Gordon

LOW COST CARRIERS AND THE CHANGING FACE OF TRAVEL – AN IRISH PERSPECTIVE

by Lee Hills, September 3rd, 2012

The last decade has seen the emergence of low cost airlines throughout Europe and the seemingly irresistible fares they offer.

With the expansion of the “global market” made possible through the worldwide web, a host of destinations have been opened up to the independent traveller, who has been content to assemble his own holiday, whether last minute weekend breaks or the annual fortnight in the sun.

There is no doubt that up until the last two years this has eroded the business of traditional tour operators whose package holidays were previously the mainstay of many families.

Recent times have, however, seen a return by travellers to the traditional package holiday influenced by, amongst other things, a number of high profile failures of holiday companies selling deconstructed packages which have not enjoyed the benefit of bonding and the financial security which a package would otherwise provide. This has led to many thousands of travellers being stranded overseas and struggling to make their own arrangements to return to the UK.

Despite this, the market for low cost travel has consolidated and lately expanded as evidenced by the recent attempt by Ryan Air to acquire its main competitor in the Irish market, Aer Lingus.

Following Ryan Air’s third attempt to take over Aer Lingus, the European Commission, acting as Anti Trust Regulator, has announced an investigation into the proposed bid following the conclusion by an initial enquiry that the transaction could harm competition. Since Ryan Air’s first bid in 2007 the number of routes operated by both carriers has increased so potentially reducing the opportunity of competition in the low cost carrier market with corresponding consequences for the consumer.

Despite the June 2012 offer lapsing, if Ryan Air secure EC clearance, it is likely that an enhanced offer will be made on what was previously regarded by the board of Aer Lingus as an undervalued one.

Although Ryan Air may attempt to disassemble some of the routes operated by Aer Lingus by offering these to other carriers, there would appear to be little appetite amongst these airlines to take them on so presenting an even greater hurdle for Ryan Air to overcome.

Tour operators offering the reinvigorated traditional package holiday may take comfort from this, as may consumers, in the knowledge that competition in the market place remains live whilst the opportunities for good value low cost travel will be offered by airlines hungry to expand.

By Lee Hills

Does death stop a claim? Not against BA

by Martin Williams, August 13th, 2012

Why does it always seem to be that British Airways ends up in the Employment Tribunal in a ground breaking case? One hopes, for their sake, that it is just the odds are against them, bearing in mind the number of employees they have. In the case of Fox v BA it was the fact that they granted particular benefits that caught them out.

Mr Fox was dismissed and days later died. His estate brought a claim against BA arguing that the dismissal was unfair and discriminatory. As awards for unfair dismissal are based largely on losses it would seem that this was a claim without value. Losses would stop being accrued once someone died. However, this case was not so simple. The value of the claim lay in the fact that there was a death in service benefit at stake. If Mr Fox had still been employed when he died, his estate argued, then that benefit would have been due to be paid.

The Employment Tribunal, while finding the dismissal unfair, agreed with BA that as the loss of the benefit was a loss to the estate and not a loss to Mr Fox, then it was not recoverable in the tribunal.

The estate appealed and the Employment Appeal Tribunal took a different view. They held that the death in service benefit was a contractual right lost as a result of dismissal. Even though Mr Fox would not benefit directly it presented an opportunity to use the funds for his dependents or to benefit others that he may choose to support.

In light of the timing of the death the Employment Appeal Tribunal found that the value of the claim was the full value of the death in service payout. In other less immediate circumstances the compensation would ordinarily be the value of the premiums paid by the unfortunate employee.

ATOL certificates flying in to place in October

by David Gordon, July 27th, 2012

ATOL CERTIFICATE – GUIDANCE ISSUED BY THE CIVIL AVIATION AUTHORITY

With the concept of Flight-Plus and Written Agency Agreements now having been in place for a few months, focus in the industry now needs to turn to preparing for the next stage.

With effect from 1 October 2012, all “consumers” who book an ATOL licensable product must be issued with an ATOL Certificate upon payment for the product in question.

Helpfully, the CAA has just published “Industry Guidance on Completion and Supply of an ATOL Certificate”. For those who have spent the last 12 months or so absorbing the effect of the new regime, none of what the CAA has said should come as a particular surprise. For those that have not lived and breathed ATOL reform over the last few months, time is ticking and it is important that all principals and agents start to prepare their internal systems for the issue of ATOL Certificates with effect from 1 October.

The guidance itself is available at www.caa.co.uk and all principals and agents selling licensable products should acquaint themselves with what is required. In particular the guidance offers advice as to:-

1 what format the Certificate should take;

2 when the Certificate should be provided and how (including electronic supply);

3 what information needs to be inserted into the Certificate; and

4 in what circumstances the Certificate can be amended or reissued.

In most instances, with the form of Certificate itself having been produced by the CAA, completion and supply to consumers should be relatively straightforward but suppliers do need to make sure that they are aware of situations when amendments to the Certificate may need to be made or new Certificates issued following changes to the product originally purchased by the consumer.

As with all things, after a while, the issue of ATOL Certificates will become routine but if businesses start preparing now, life in the first few weeks of October should be a breeze.

By David Gordon

It’s a TIING Thing!

by Katherine Leppard, April 20th, 2012

Despite, the rain pouring down and last minute change of venue due to floods (!) the TIING networking event yesterday was great fun!

Here are some pictures of our lovely Tiingers at The Phoneix, Victoria.

TIING is a Linkedin networking and information exchange group for directors, owners and senior managers of tour operators, travel agencies and their professional suppliers.

The purpose of the group is to share and discuss industry information and developments, share expertise and to provide networking opportunities for its members.

In the current membership there is a diverse group of directors, owners and senior managers in the travel profession including tour operators, agents, lawyers, social media, PR, insurers, recruitment and regulatory.

Join the discussions and receive invites to future get togethers at LinkedIn.

By Katherine Leppard

ATOL Reform

by Katherine Leppard, April 13th, 2012

ATOL reforms– CAA respond to the industry’s calls for an extension to the implementation of the reforms.

In response to the industry’s unrest about the looming deadline for the implementation of the ATOL reforms (30 April 2012), the CAA have announced a ‘focus on education’ during May – Does that mean they will not take enforcement action?

The reforms – brief overview

The ATOL regulations come into force on 30 April 2012 and make changes to the current ATOL regime which include the following:-

Addition of Flight-Plus – sales of outbound flights with accommodation or car/hire require the business to hold an ATOL.
Retail agents selling Flight Only will need to hold an ATOL unless they meet the specific exemptions.
ATOL holders are required to have written Agency Agreements with all retail agents.
ATOL certificates must be issued immediately on booking and state what type of booking it is (ie Package, Flight-Plus or Flight-Only). This change comes into force later on 01 October 2012 and applies to all travel companies not just those who are the ATOL holders.

The purpose of the reform of the regulations is to provide greater protection and clarity to consumers. This is important for any industry to generate confidence in the consumer market. Having witnessed the impact of failures of some large travel companies in recent years, it was clear that the protection for consumers to the travel industry could be vastly improved.

Whilst, the industry have generally supported an increase in clarity and protection for consumers and these reforms do seems to take us a step in the right direction towards achieving a satisfactory level of consumer protection, airlines are still not included. Although there is some debate about this across the legal profession, the government state that primary legislation is required in order for airlines to be brought into the ATOL regime. The Civil Aviation Bill includes sections relation to ATOL reform which will allow for further regulations to be made in relation to airlines. The government have announced that (if the Bill is passed through parliament) they will consult on further regulations for airlines to bring them in the scheme in 2013.

For now we are focussing on the effects of the current reforms and the imminent deadline of 30 April 2012 at which time the CAA could take enforcement action against any company not complying with the regulations.

The deadlines and the CAA position

Whilst the industry has been aware that reforms would take place for some time and there was a long consultation process, the industry has taken serious objection to the limited information provided up to the issue of the wording of the final regulations and the implementation of them.

The industry has therefore called for an extension to the implementation on 30 April 2012. The government were not willing to extend the deadline.

The CAA have announced that during May they will continue to focus on education and assistance to the industry in meeting the regulatory requirements. Does this mean that they will not be taking enforcement action for those (inevitable) companies that will not be able to comply in time? The CAA do not answer this question directly but they say they will focus on education and assistance to the industry “except where businesses are not taking appropriate steps to comply”. To me this means that if you can show you are trying to comply and are making reasonable attempts to do so, the CAA are more likely to seek to assist you rather than prosecute you – until 1 June 2012 where they will revert to their “normal enforcement stance”.

Consumer protection in the transition period

The good news for consumers is that the Air Travel Trust has announced that they will be sympathetic to consumers during this transitional period who claim for package and flight-only sales where agency agreements are not in place or where documentation falls short of the new requirements. So, there is at least the saving to the industry reputation that if companies go bust through trying to implement the reforms, the consumer is most likely to be protected.