INTRODUCTION:
1.1. International and national airline operators often times have passengers ‘’bumped off’’ the flight, delay and/or cancel their flights for various reasons. It is common knowledge that passengers spend hours at the airport waiting room for takeoff only to be informed belatedly that their flights are either cancelled or delayed. Businessmen and women in Nigeria have missed lofty contracts from the Federal Government or its Agencies for failure to keep to time of appointment due to flight delay and/or cancellation. Lawyers and other professionals have missed all important court cases or appointments due to flight delay or cancellation. Passengers are known to have missed international engagements/appointments with foreign business partners due to delay or cancelled flights. Passenger(s) considered as flight risk are normally bumped off or denied flight by the operators without regards to their convenience or business commitment. However, we submit that airline operators are not liable to passengers denied boarding as a result of being considered as flight or security risk.
1.2. It should be noted that an effective air transport system is germane to international business/commercial transactions. The role of the international air operators in facilitating inter-commercial transactions cannot be over-emphasized in view of the emerging world economy. In all of these cases,(particularly in local/domestic flights) the operators involved do not pay compensation or arrange for hotel accommodation, meals, refreshments or means of communication for these passengers in line with the provision of the law. On the part of the passengers, they either do not ask for compensation or claim the extra- expenses incurred as a result of the flight cancellation or delay partly due to ignorance of their entitlement to compensation, provision of reasonable meals, refreshments and hotel accommodation by the airline operators and partly due to the non-existent or frustrating systems in place to address such grievance.
1.3. In the course of this article, we shall x-ray the obligations of the operators to provide compensation, reasonable meals, refreshments and hotel accommodation to passengers whose flights are cancelled and/or delayed or denied boarding in line with the applicable international Conventions and Regulations.
1.4. The under listed Laws, Conventions and Regulations inter alia regulate and control the operation and management of civil aviation industry in Nigeria.
1.5. a. The Civil Aviation Act1
b. The Nigerian Civil Aviation Authority Act2
c. The Federal Airports Authority of Nigeria Act3
d. The Nigerian Airspace Management Agency Act4
e. The Nigerian Meteorological Agency Act5
g. The Warsaw Convention6
h. The Montreal Convention7
I. The European Community Council Regulation8.
3.0. REQUIREMENTS FOR AIRLINE OPERATION IN NIGERIA
3.1. Any person or body corporate desiring of operating commercial air transport in Nigeria shall apply to the Nigerian Civil Aviation Authority established by the Act9 for the grant of licence. The authority shall be responsible for (a) the registration of any aircraft in Nigeria and issuance to the owner thereof, of a certificate of registration, (b) the establishment and maintenance of a system or register for recording the title to or any interest in any aircraft registered in Nigeria, (c) the prohibition of any Nigerian or foreign registered aircraft from operating within the Nigerian airspace, unless a certificate of airworthiness in respect thereof is issued or validated under the regulations in force with respect to the aircraft, etc.10
4.0. DENIAL OF BOARDING
4.1. On the 17th day of February 2005, the European Council Regulation 261/2004 (hereinafter referred to as the EC Regulation) established common rules on compensation and assistance to passengers in the event of denied boarding and
1 Cap C13, LFN, 2004
2 Cap N94, LFN, 2004
3 Cap F5, LFN, 2004
4 Cap N90, LFN, 2004
5 Cap N52, LFN, 2004
6 1929
7 1999
8 Regulation (EC) No 261/2004 of the European Parliament and of the Council
of 11 February 2004
9 Section 2 (1) Civil Aviation Act
10 Section 31 Civil Aviation Act
cancellation or long delay of flights. The EC Regulation established conditions for passengers’ rights to compensations when (1) they are denied boarding against their will, (2) their flight is cancelled and (3) their flight is delayed by the airline operator(s). A passenger is said to have been denied boarding when:
‘’a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation’’11
4.2. The incident of overbooking in an aircraft is quite a common occurrence in the civil aviation industry and it is legal. Overbooking is normally due to the belief that some of the passengers who booked for flight may not take up the flight. When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier12. This is always an inducement which may be of beneficial value to the passenger. These inducements may include upgrade or voucher for the passenger’s future travel with the airline, alternative arrangement for the passenger to fly another flight of a competitor to the airline operator, flying on the next flight of the same air operating carrier. If an insufficient number of volunteers come forward to allow the remaining passengers with reservations to board the flight, the operating air carrier may then deny boarding to passengers against their will. If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them.
4.3. A situation may arise when the airline operator does not have system of providing benefits to volunteers or there are insufficient volunteers when the airline operator called for it. In the circumstance, the airline operator will have to use its discretion in bumping some of the passengers off the flight. The airline operator in exercising this discretion will have to consider its commercial interests vis-à-vis the passengers’ interests. It has to consider the interests of those passengers who fly less with it and the passengers with frequent history of flying with the airline. In the above consideration, the airline operator will favour those passengers in the latter category.
11 Article 2(j) EC Regulation 261/2004
12 Article 4 (1) EC Regulation 261/2004
4.4. Passengers denied boarding against their will are entitled to either cancel their flights with reimbursement of their tickets, or to continue them under satisfactory conditions, and should be adequately cared for while awaiting a later flight. Volunteers should also be able to cancel their flights with reimbursement of their tickets, or continue them under satisfactory conditions13. A passenger denied boarding due to incomplete and inadequate travelling documents, health, safety or security reasons is not entitled to compensations.14
5.0. FLIGHTS CANCELLATION
5.1. Flight cancellation means the non-operation of a flight which was previously planned and on which at least one place was reserved. Flight cancellation may be due to various reasons ranging from weather condition, technical faults, a snag on the airplane, natural occurrence or act of God, extra-ordinary circumstance, insecurity and political instability etc. However, an airline operator may rather delay a flight instead of cancellation. It may be argued that when a flight is delayed for an unreasonable time and the itinerary and flight crew changed, such flight is said to have been cancelled.
5.2. A flight may be delayed for a considerable period and a new flight number issued or additional passengers on board the flight. The question is whether the above changes to the flight could be taken to mean that the flight has been cancelled? We submit most respectfully that flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning.15
6.0. DELAYED FLIGHTS
6.1. When an airline operator reasonably expects a flight to be delayed beyond the schedule time, such delay should be communicated to the passengers at the earliest opportunity. The airline operator should immediately start making arrangements for the welfare and care of the passengers. In those circumstances, where passengers are carried on a flight whose departure time is later than the departure time originally scheduled, the flight can be classified as ‘cancelled’ only if the air carrier arranges for the passengers to be
13 Articles 7 and 8 EC Regulation 261/2004
14 Article2(j) EC Regulation 261/2004
15 Joined Cases C-402/07 and C-432/07: Christopher Sturgeon & Ors v Condor Flugdienst GmbH, and Stefan Böck and Cornelia Lepuschitz v Air France SA
carried on another flight whose original planning is different from that of the flight for which the booking was made.16
6.2. Thus, it is possible as a rule to conclude that there is a cancellation where the delayed flight for which the booking was made is ‘rolled over’ onto another flight, that is to say, where the planning for the original flight is abandoned and the passengers from that flight join passengers on a flight which was also planned, but independently of the flight for which the passengers so transferred had made their bookings.17
7.0. PASSENGER’S RIGHT TO COMPENSATION
7.1. The quantum of compensation depends on whether the passenger was denied boarding or the flight cancelled or delayed. In the case of denied boarding, under the EC Regulation, the passenger shall be entitled to choose between:
(a) Reimbursement of the full cost of the purchase price of the ticket within a period of seven (7) days;
(b) Re-routing to his final destination at the earliest opportunity under comparable condition;
(c) Re-routing at a later date at the convenience of the passenger but subject to availability of seats.18
6.2. In the case of cancelled flight, the passenger’s right to compensation depends on the distance of the flight. The passenger shall be entitled to EUR 250 for all flights of 1 500 kilometres or less, EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500, and 3 500 kilometres, EUR 600 for all flights not falling under (a) or (b).19 Passenger shall also be entitled to decent and reasonable meals during waiting time, hotel accommodation, means to reach at least two people (telephone calls or telex or e-mails or fax) and transport to and from hotel free of charge.20 When a passenger decides not to travel after a cancellation of a flight, he is entitled to a reimbursement of the purchase price of the ticket within seven (7) days thereof and the right of re-routing at a later time but shall not be entitled to be taken care of under Article 8.
16 Supra 16
17 Supra 16
18 Article 8 EC Regulation 261/2004
19 Article 7 EC Regulation 261/2004
20 Article 9 EC Regulation 261/2004
6.3 In the case of a long delay flight for three, four or five hours, passengers are entitled to assistance from the airline in the form of provision of meals, refreshments, communication facilities and if appropriate, hotel accommodation. The passengers are also entitled under this circumstance to cancel a delayed flight on their own initiative and to be reimbursed for ticket not used. We submit that once a passenger cancels his flight for delay, he loses his right to be cared for by the airline.
7.0. APPLICABILITY OF THE EC REGULATION IN NIGERIA
7.1. The question of applicability of the EC Regulation in Nigeria may be an issue in view of the fact that Nigeria is not an EU member State. We submit most respectfully that the Regulation applies to airlines licensed in an EU member State flying outside a non EU State to an EU State or vice versa. It also applies to non-EU Citizens or Passengers on board such airline except any benefit or compensation has already been provided by the non-EU State to the Passenger.
7.2. The Regulation does not apply to Nigeria. However, Nigerians or Nigeria Citizens on board an aircraft licensed in the United Kingdom flying outside Nigeria to Canada, Austria, Belgium, Ceylon, Australia, etc are entitled to the benefits provided by the Regulation and likewise Nigerians or Nigeria citizens on board an aircraft flying outside these countries into Nigeria. However, EU citizens/non EU citizens on board an aircraft licensed in America outbound from the US to Nigeria or Argentina or any of the non-EU States are not entitled to the Regulation.
7.3. For a Passenger to take benefit of the Regulation, he must be on board an aircraft licensed in an EU State departing from or inbound to an EU State.
7.4. In relation to domestic and international flights within non-EU member States, the Regulation is inapplicable. In this regard, the passenger may sue an airline operator for breach of contract to transport him to the agreed destination in cases of delayed and cancelled flights.21 Under general aviation law, once a passenger purchases a ticket, inbuilt into it is a contract that the airline operator will transport the passenger to the agreed destination and on time22. In the event of failure to so transport the passenger due to denied boarding, delayed or cancellation, the passenger is entitled to damages
21 Cameroon Airline Ltd v Otutuize (2005) 9 NWLR (pt. 929) 202
22 It also implied that the passenger will comply with the terms and conditions of carriage contained in the air ticket. The Warsaw and Montreal Conventions are incorporated into the contract of carriage by air via reference to section 48 of the Civil Aviation Act in the air ticket.
for breach of contract.23 The Montreal Convention is by Section 48 (1) & (2) Civil Aviation Act 2006 applicable to domestic and international carriage by air in Nigeria. Thus, the section provides;
- ‘’The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 set forth in Schedule II of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.’’
2 ‘’The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in Schedule III of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.’’
Therefore, the applicability of the Montreal Convention to domestic and international flights in Nigeria is beyond argument
7.5. The Montreal Convention 1999 and the Warsaw Convention 1929 as amended are applicable laws in Nigeria in determining liability of an airline operator irrespective of the nationality of the aircraft performing the carriage and the country of operation. Both Conventions are also applicable to all carriage by air whether an EU State or not. The
23 However, the passenger will not be titled to compensation if he is denied board is as a result of not complying with the check-In deadline, failure to produce a valid means of identification at check-In or boarding gate, possession of dangerous weapon(s), etc ,
Warsaw Convention was made applicable to Nigeria by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953. See also the case of BRITISH AIRWAYS V ATOYEBI24.
7.6. In cases of delayed flight, the airline operator will be liable for damage occasioned by such delay.25 The passenger shall only be entitled to 4, 150 Special Drawing Rights in respect to damage caused by delay, 1000 Special Drawing Rights for destruction, loss, damage or delay to luggage unless the passenger has made at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires26.
7.7. In respect of carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.27 However, the limitation mentioned above shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result.28
7.8. In comparison, the Warsaw Convention limits the liability of the carrier for each passenger to the sum of 125,000 francs. Where, in accordance with the law of the Court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery. As regards
24 (2010) 14 NWLR (pt.1214) 561 at 600
25 Article 19 Montreal Convention 1999
26 Article 22 (2) Montreal Convention 1999
27 Article 22 (3) Montreal 1999
28 Article 22 (5) Montreal Convention
objects of which the passenger takes charge himself, the liability of the carrier is limited to 5,000 francs per passenger29.
7.9. It should be noted that the EC Regulation does not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.30 However, under Article1 (1) of the Warsaw Convention 1929, the Convention applies to all international transportation of persons, baggage or goods performed by aircraft for hire and equally to gratuitous transportation by aircraft performed by an air transportation enterprise. See again the case of BRITISH AIRWAYS V ATOYEBI.31
8.0. DEFENCES OPEN TO AN AIRLINE OPERATOR
8.1 An airline Operator who delayed or cancelled flight pursuant to a bad weather forecast by the Nigerian Meteorological Agency or any other like body is not liable. However, if the delay is of a long period, the airline operator is still under a duty to care for the passengers but if the flight is cancelled out-rightly, the passengers would be provided with reasonable means to return home. An act of God is a defence. It can also rely on the defence of technical problem but the extent of reliance on technical problem is very minimal as the burden of proof without fault lies on the airline operator. The plea of extra-ordinary circumstance and political instability are also available. We submit most respectfully that technical problems inherent in the normal course of an airline operator do not exonerate the operator from payment of compensation. In the European Court of Justice Judgment in Wallentin-Hermann32, the court held thus;
‘’The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity. Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance do not constitute, in themselves, ‘extraordinary circumstances’. However, it is not ruled out that technical problems are covered
29 Article 22 Warsaw Convention 1929 as amended
30 Article 3 (3)EC Regulation 261/2006
31 (2010) 14 NWLR (pt.1214) 561at 594
32 European Court of Justice Judgment C-549/07
by ‘exceptional circumstances’ to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.’’
8.2. The technical problems not inherent in the normal course of an airline operator are hidden manufacturing defeats not within the control of the operator and which impinges on the flight safety. A delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.33 According to the judgment of the Fourth Chamber;
‘’… a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.’’34
9.0. JURISDICTION TO ENTERTAIN AVIATION MATTERS IN NIGERIA
9.1. The Federal High Court has, to the exclusion of any other court in Nigeria, the jurisdiction in civil causes and matters relating and pertaining to aviation and safety of aircraft.35 The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the law of the Court seised of the case.36 Therefore, actions brought after two years are statute barred
33 Supra 16
34 Supra 16
35 Section 251 (1) (k) of the Federal Republic of Nigeria, 1999 as amended, KABO AIR LTD V. OLADIPO (1999) 10 NWLR (pt.623) 517
36 See section 29 of the Warsaw Convention 1929 and section 35 of the Montreal Convention.
except the passenger can prove concealed fraud on the part of the airline carrier under general law.
10.0. CONCLUSION
10.1 I hope passengers and Legal Practitioners in aviation industry will find this piece useful and helpful in the understanding and practice of aviation law. Passengers should always be encouraged to enforce their rights in the events of breach.
Benedict Oregbemhe
Partner
Benfield Attorneys and Solicitors
b.oregbemhe@benfieldattorneys.com
www.benfieldattorneys.com
+234 8036986158