Airline passengers are fed up. Their rights are diminishing and the traveling public is tired of being ignored.
Over the last several years an alarming number of airline incidents have thrust this issue into the spotlight. The first of many recent incidents garnering national attention occurred in December 2006 when American Airlines passengers in Austin, Texas, were forced to remain on grounded airplanes for over eight hours. After the ensuing outrage one would think it impossible for the commercial airline industry to allow such injustice to occur again, but only two months later in February 2007, JetBlue passengers were grounded by a snow storm and held, against their will, on planes without food and water and in many cases, operable restrooms. Most recently, in January 2008, 29 Delta planes were held on the tarmac in Atlanta, Georgia, for over four hours due to weather delays. There has been an alarming increase in these incidents, and now passengers are starting to fight back with their best weapon - legislation.
During my six year tenure as an Inspector General for the Department of Transportation, I worked tirelessly to publicize and minimize the occurrence of these types of incidents. There was and still is a need for specific rules and tougher penalties for breaking those rules, as well as more efficient monitoring of airlines to not only protect passenger rights but also their lives. I believed - and still believe - that this crucial piece of the aviation industry’s foundation is still missing.
We are finally on the brink of change.
Focused media, government and consumer attention are conduits to more strident policies and specific guidelines for the airline industry. Passengers must use caution when voicing their opinions or rights on an airplane given the temperament of the aviation industry. Even though the airlines must provide safe transportation for their passengers, they have taken advantage of you and me, their paying customers. In order to put a stop to the total loss of passenger rights, current proposed legislation, including bills H.R. 1303 and S. 678, contains clauses to prevent passengers from being trapped for hours in grounded planes due to lengthy delays. This proposed legislation will most likely eventually become law; however neither bill has yet to come to a vote on the House or Senate floors. This “Airline Passenger Bill of Rights” would, among other things, require flights to return to the gate if a delay has grounded a flight for longer than three hours. The Airline Passenger Bill of Rights will develop guidelines for the airlines to follow in certain situations and, more importantly, will provide guidance to airline passengers on what they are entitled to when they fly.
When will this legislation become law?
In November 2007, the Federal Register (FR) published an Advanced Notice of Proposed Rulemaking (ANPRMP) for Enhancing Airline Passenger Rights. The ANPRMP requested comments on seven different subtopics: (1) Require Contingency Plans for Lengthy Tarmac Delays and Incorporate them in Their Contracts of Carriage; (2) Require Carriers to Respond to Consumer Problems; (3) Declare Operation of Flights That Remain Chronically Delayed to be an Unfair and Deceptive Practice and an Unfair Method of Competition; (4) Require Carriers to Publish Delay Data on Their Websites; (5) Require Carriers to Publish Complaint Data on Their Websites; (6) Require Carriers to Report On-Time Performance of International Flights; and (7) Require Carriers to Audit Their Adherence to their Customer Service Plans. (See Federal Register/Vol. 72 No. 223/Tuesday, November 20, 2007/Proposed Rules Pgs. 65233-37.) The public comment period has ended, however the responses, including those from the airlines, can be viewed at www.regulations.gov under Docket No. DOT-OST-2007-0022. The comments are currently under advisement.
A step in the right direction came in February 2008 when the Federal Advisory Committee appointed a National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays. (73 FR 7785). Representatives from the government, airlines, airports, pilots and other aviation industry organizations, including one passenger rights organization, are members of the task force. Airline passengers are represented through the voice of Kate Hanni, the President of the Coalition for an Airline Passengers’ Bill of Rights. Ms. Hanni, along with the other stranded passengers in Austin, Texas, in December 2006, sought to do more than simply complain to the airlines; she chose to fight the problem by setting up a coalition and has since convinced Congress to introduce the Airline Passenger Bill of Rights. The coalition has set up a website (www.flyersrights.com) that serves as a forum for the public to document and share their horror stories. The coalition uses the data it receives to support its contentions to the task force. The task force anticipates that its investigation, analysis, and proposals will be completed by the end of the summer of 2008, but its charter is valid until January 2009. To monitor its progress, please visit www.regulations.gov, docket number DOT-OST-2007-0108. The task force does allow for the public to attend its quarterly meetings and in some cases allows for a public presentation, subject to some restrictions. The docket also provides a forum for written public comments to be posted.
Almost every major airline is represented on the task force. This is not necessarily to preserve or advance passenger rights but to ensure that the airline’s interests are protected. In addition to the model, minimum standard plan developed by the task force, I anticipate each major airline will offer up its own version of the Airline Passenger Bill of Rights. JetBlue previously developed a Customer Bill of Rights, http://www.jetblue.com/about/ourcompany/promise/index.html , which received a great response from the traveling public. Passengers would benefit from each airline creating its own bill of rights as it will force competition amongst the airlines in the customer service area, serving consumers’ interests.
On June 24, 2008, H.R. 6355: Air Service Improvement Act of 2008, another attempt to award rights to airline passengers, was introduced in the House of Representatives by Representative James Oberstar and several other sponsors. The bill’s intent is to amend Title 49 of the United States Code in order to improve the quality of airline services. The bill is targets several areas similar to those advanced in the Airline Passenger Bill of Rights: (1) Monthly air carrier reports; (2) Air Passenger service improvements; (3) Review of air carrier flight delays, cancellations, and associated causes; (4) European Union rules for passenger rights; (5) Establishment of an advisory committee for aviation consumer protection; (6) Denied boarding compensation; and (7) Expansion of DOT airline consumer complaint investigations. This bill was submitted to the Subcommittee on Aviation on June 25, 2008, and has yet to come to a vote on the House floor.
The aviation community is making progress in the preservation and advancement of passenger rights. It is no longer an issue that can be brushed to the back burner; this issue is boiling hot and passengers are no longer sitting idle. The airlines are being forced to participate and react as legislation, lawsuits and competition compel them into action.
But, you may wonder, while balancing on this brink of change, what can you do now to protect your rights?
FIRST: BE PREPARED AND KEEP A PAPER TRAIL
Whether your issue is improper vehicle maintenance, resolving insufficient phone or credit card service, or fighting for reimbursement for your lost luggage, the most important thing you can do is to keep a record of all interactions and transactions you have with the company to support your case. With airline passenger rights, the best place to start happens before you even check your luggage or get past security - obtain a copy of the rules and/or passenger bill of rights (also called a contract of carriage) of the airline which you are flying. The Department of Transportation’s Aviation Consumer Protection Division is a good place to start: http://airconsumer.ost.dot.gov/customerservice.htm. The website has links to a number of major airline’s plans. If your airline is not listed, I suggest going directly to that airline’s website. The airline’s contract of carriage is typically available under the customer service link. If you cannot locate your airline’s customer service plan, then you may contact the airline’s customer service provider to obtain a copy. Next, laminate the passenger bill of rights or rules and carry it with you when you fly. You should also carry a copy of federal airline policy available at http://airconsumer.ost.dot.gov/publications/flyrights.htm. Airline staff and representatives have been known to warn complaining passengers that their suggestions violate FAA regulations, though some may in fact have no knowledge of the laws and regulations. Having a printout of your rights at hand will help you cite or point to a regulation, rule or pertinent fact in order to stand up for your rights.
As you interact with the airline and its agents, keep a record of the names of personnel who advised you, dates, flight numbers and other pertinent information. Armed with this information, the airline will find your argument more credible because you have evidence to back up your claim and it will therefore be more likely to honor your case.
Now that you are armed with this information, remember to review these important issues before you ever pack your bags.
SECOND: KNOW THE THREE LEADING CAUSES OF STRESS, RUINED VACATIONS AND BAD MOODS: Boarding (or Lack Thereof), Bumping & Baggage*
* While there is no empirical data to support this statement, I invite you to visit any major airport during the holidays or inclement weather to find the necessary proof.
STRESSOR #1: BOARDING (OR LACK THEREOF): CANCELED, DELAYED AND GROUNDED FLIGHTS
Airlines are not required by federal regulation to compensate passengers for delayed or canceled flights, but policies can vary among major carriers. Most airlines will book you on their next available flight, if there is room, for no additional charge. If you are onboard a flight that is arriving late and thus forcing you to miss your connecting flight, you can get a leg up, or more importantly, a seat, on your fellow passengers by calling the airline ticket office when cell phone usage is allowed upon landing. This will increase your chance of getting on the next available flight before your other stranded co-passengers, and it can also be quicker than waiting in line at the ticket counter. If you do not have a cell phone, find a payphone when you deplane. The important thing is to have the numbers handy, and if you laminated the airline’s rules, you can easily call customer service and be transferred to the appropriate representative. If you are using an airline which you regularly travel, adding their customer hotline in your cell phone contacts is a helpful and time-saving idea.
Depending on how long of a delay you are facing, you can also ask your airline to find out if another carrier has space and to endorse your ticket to another airline with whom they have a ticketing agreement. This endorsement could save you a fare increase, though there may be an upgrade charge. There is presently no federal rule requiring airlines to arrange for you to fly on another carrier due to delay.
Mechanical Problems
You may get meal vouchers. While the airlines are not required to provide you with vouchers, if you ask, you just may receive. If you are stranded in an airport overnight, ask for a hotel.
Inclement Weather and Other “Acts of God” (Force Majeure)
Just as these events are typical clauses in performance contracts, the same applies with airlines. Expect little to nothing as the situation is outside of the airline’s control.
Grounded Flights
If a flight is boarded but delayed on the ground, there are currently no federal measures governing what the airlines must do for passengers. The current push under the Airline Passenger Bill of Rights is to disallow the crew to keep passengers on board an aircraft for longer than three hours. Three hours may seem like a lengthy amount of time, but this reflects a compromise between the passengers and the airlines! However, if the plane has not yet pulled away from the gate when the delay commences, you may ask to deplane and exit the aircraft.
Currently, JetBlue’s Customer Bill of Rights provides travel vouchers from $25 up to roundtrip fares for customers who have wait times at the gate of over one hour, and more for those customers whose flights are delayed, cancelled, and/or who have endured onboard ground delays due to a controllable irregularity. That means “Acts of God” and inclement weather are most likely not included. Jet Blue does not provide its definition for a controllable irregularity; therefore if you feel an irregularity is controllable, it doesn’t hurt to ask for payment for your delay.
STRESSOR #2: OVERBOOKING
In order to maximize profits, airlines will overbook flights in order to compensate for “no-shows.” If all scheduled passengers show up for the flight, the airline will first ask for volunteers. Passengers will be involuntarily bumped if no one volunteers. Federal law requires that a passenger “bumped” from an oversold flight be compensated.
IMPORTANT: If you miss your ticketing or check-in time, and the flight is overbooked, you may lose your reservation and your right to compensation.
Voluntary Bumps
Before volunteering to give up your seat, first find out:
- When you can get a confirmed seat on another flight; and
- What perks (e.g. payment, upgrade, meals, hotel, and/or transportation) the airline provides while you wait.
There is no federal policy on compensation for voluntary bumps - it is at the airline’s discretion. However, most airlines will most likely select the volunteers with the lowest bid. If you are given a free airline ticket, be sure to ask if any blackout dates apply.
IMPORTANT: You are in a position to bargain if other passengers are unwilling to negotiate.
Involuntary Bumps
In April 2008, the United States Department of Transportation announced changes to the bumping rule, effective May 2008. The revised rule requires airlines to double the cap on compensation to passengers involuntarily bumped from their flights and now applies to more aircraft.
If you get to your final destination:
- Within two hours (four hours on an international flight) of your original arrival time, the cap increased from $200 to $400.
- Two hours or more (more than four hours internationally) of your original arrival time, the cap increased from $400 to $800.
If being bumped costs you more than the airline is willing to pay you, try negotiating a better settlement with the airline’s complaint department. If this is still unacceptable, you may take the airline to court for breach of contract of carriage or negligence but you will need to factor in the cost of case expenses and attorney fees to determine if this will be to your advantage.
IMPORTANT: These rules do not apply to international flights flying into the U.S. or to flights between two foreign cities.
The revised bumping rule now includes flights on aircraft that seat 30 or more people versus the old rule that covered only aircraft that seat 60 or more people. This revision allows inclusion of some of the newer aircraft on the market which are typically used in the commuter airline market, e.g. the Canadair Regional Jet (CRJ) and the Embraer Brasilia, which typically seat around 50 passengers. Regional airlines transported one out of every five passengers in 2004, thus this revision allows for a substantial increase in the coverage of the flying public.
IMPORTANT: Get to the airport early because the last passengers to check-in (unless you are a preferred flyer) are typically the first to get bumped.
STRESSOR #3: DAMAGED, DELAYED OR LOST LUGGAGE
The Aviation Consumer Protection Division ranks the likelihood of a bag getting lost (with #1 being the least likely loss) with the following types of flights: 1) nonstop; 2) direct (i.e. 1+ stops, but no change of aircraft); 3) online connection (change of aircraft, not airline); and 4) interline connection (change of both aircraft and airline).
If there is any issue with your luggage, whether it is damaged, delayed or lost, the best time to file a complaint is before you ever leave the airport. Be prepared and keep a paper trail. Remember to keep copies of all claims, names of personnel you spoke with, and dates that your interactions took place. For an airline’s specific criteria, be sure to look at its customer service plan or customer bill of rights to make sure you abide by that airline’s specific time restrictions or paperwork. If you don’t, it could affect whether the airline will reimburse you for your loss.
IMPORTANT: Keep your baggage claim checks. These claim checks will be important to identify your luggage and you will need the claim check numbers to make a baggage complaint.
If you find yourself with delayed, damaged or lost luggage keep in mind that the airline’s liability is capped.
Domestic Trips
The airline caps its luggage liability at $3,000 per passenger. You are not automatically entitled to the full value because your baggage is lost. The airline will base the valuation on the items you filled out in the form and will also depreciate the value of your possessions. The airline may even ask for receipts for you to verify certain items.
IMPORTANT: If you are traveling with valuable items in excess of the $3,000 cap, when you check in for your flight you may inquire about additional insurance through the airline for increased baggage coverage.
International Trips that Originate in the United States
The coverage is capped at 1,000 Special Drawing Rights (SDRs) per passenger as set forth in the Montreal Convention, a treaty which governs international aviation travel. (An SDR serves as an independent international unit of account which fluctuates daily.) If your destination country ratified the Montreal Convention, the same cap will apply.
Most travelers’ lost luggage reimbursements do not reach the $3,000 cap because most bags are eventually found.
IMPORTANT: When you report your bag, ask the airline if they offer a cash advance for emergencies and necessities and/or what their policy is concerning reimbursement.
Airline policies vary widely so their advance could range from nothing at all, to that which is reasonably necessary, e.g. shirt, shoes, toothbrush, etc. Again, you will need to keep track of any receipts in order to be reimbursed and be sure to document each conversation you have and note who you spoke with concerning what items are available for reimbursement.
Most passengers can only hope that they are not subjected to all three delay calamities at one time, like Richard Roth who, according to a May 2008 article in USA Today, due to the delay of his initial flight segment, missed his connecting flight from Atlanta to Argentina, even though when his flight arrived his connecting plane was still sitting at the gate. Because they were not permitted to board their previously scheduled connecting flight, he and his family arrived three days late to their destination, and without their luggage. They missed his mother’s 80th birthday party and racked up a considerable amount of expenses in temporary lodging and replacement clothing for the family. The airlines are protected by a number of caps that are placed upon baggage and bumping. In some circumstances, where a contract of carriage has been breached or where the airline has been negligent, it may prove worthwhile to advance your cause to litigation rather than accepting the offerings of the airline. In most situations, however, the rules and limitations set up by the airline will provide the best cost benefit recovery.
THIRD: WHAT YOU CAN DO TO HELP
As a frequent flyer, I see the Airline Passenger Bill of Rights as a step forward in the right direction to preserve and advocate the advancement of positive change in safeguarding passengers’ rights aboard commercial aircraft. I urge you to join in the fight.
Keep track of the pending legislation on the dockets referenced above and make comments and/or suggestions that you believe would be beneficial to the aviation community. Also, since there is a medium for the passengers to be heard in the task force, I suggest contacting the task force directly or adding your voice to the Coalition for an Airlines’ Passenger Bill of Rights. Lastly, contact your local government officials to garner support for the Airline Passenger Bill of Rights so that they can join in the push not only to preserve, but also to advance airline passenger rights.
If you have any questions or concerns concerning aviation passenger rights, please visit the Ask the Former Inspector General Q&A section at www.aviationsafetycenter.com.
Mary Schiavo is an aviation attorney with Motley Rice, LLC in Mt. Pleasant, SC and frequent on-air consultant for major U.S. media outlets. The experience she has gained in her roles as the Inspector General of the U.S. Department of Transportation, a former pilot and aviation professor, and a frequent air-traveler give her a unique insider-perspective of the aviation industry and aviation litigation. You may contact her at mschiavo@motleyrice.com or at 1-800-768-4026.
