LEGAL IAN SKUSE Strike it unlucky
Passenger rights and compensation regarding industrial action both depend on the nature of the strike
A
IR TRAVEL IS DISRUPTED when airline workers or those supplying services go on strike, which can
result in long delays and missed connecting flights. Often rerouting is not possible if all departures from an airport are affected. Industrial action is recognised by both the Montreal Convention 1999 (‘the Convention’) and EU Regulation 261/2004 (‘the Regulation’). The Convention contains a regime enabling passengers to claim for delay but makes the following provision: ‘The carrier is liable for damage occasioned by delay and 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.’ Regulation recital (14) states: ‘As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.’
The Regulation confirms that the air carrier does not have to
BUYINGBUSINESSTRAVEL.COM
Ian Skuse is a partner in Blake Morgan’s Aviation team (blakemorgan.
co.uk) and is based in their London office. Ian was a partner with Piper Smith Watton LLP, which merged with Blake Morgan LLP in August 2015.
pay compensation if it can prove that the cancellation is caused by extraordinary circumstances that could not have been avoided even if all reasonable measures were taken. If an extended delay occurs, then even if caused by a strike, the air carrier is obliged by Article 6 to provide care when the delay exceeds two hours and includes meals and refreshments, hotel accommodation where necessary and transport between the airport and hotel. Where the delay exceeds five hours, passengers must be offered the choice between reimbursement of the ticket price within seven days, a return flight to the first point of departure or rerouting to their final destination.
WHAT IS ‘EXTRAORDINARY? In some countries wildcat strikes are not permitted, and a ballot is required, followed by a notice period. Other countries do not have this notice provision and strikes can occur without notice before alternative arrangements can be made. Strikes by air traffic control, baggage handlers and others – where the carrier may have no alternative supplier to call upon – differ to a strike by an airline’s own personnel, when it has had notice that allows the airline to make alternative arrangements, to advise passengers and to reroute. Most strikes are viewed as extraordinary, with no compensation. However, for the period of delay the carrier remains responsible for providing Article 6 care.
OTHER SOLUTIONS
It is always worth checking travel insurance, but many policies only pay a small sum for long delays.
BBT January/February 2017 141
Some insurers cover additional losses, such as unused hotel bookings, and so the small print needs to be reviewed. Where the delay exceeds five hours, passengers can consider seeking a refund or rerouting home, possibly by alternative transport such as Eurostar.
Some claimant lawyers argue that certain types of industrial action should not be extraordinary because the airline knew about it in advance and could have made alternative arrangements, or the strike was by its own staff. Carriers will always argue that it is uncertain how disrupted flights may be and how long the strike might continue, and these are, therefore, extraordinary.
WHAT SHOULD THE AIRLINES DO? Most carriers communicate with passengers automatically by email or text message advising of any significant disruption and possibly advising them not to travel to the airport. Most will seek to try to arrange rerouting if necessary with another carrier.
THE BUSINESS TRAVELLER Industrial action doesn’t only affect economy class travellers, and travel management companies should advise of likely disruption. Insurance policies should be checked to see what cover might be available, particularly where a cancelled flight might involve a delay in an overseas airport where hotel space might not be available.
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