Aviation Briefs (the Journal of the Aviation Law Association of Australia and New Zealand) – June/July 2007

This comment was prompted by two particular pieces of news which occurred within a few weeks of each other, earlier this year, and on different sides of the world.

The first was that the State of New York passed legislation on June 21 effectively creating a ‘bill of rights’ for passengers who were delayed in New York airports. The effect of the legislation was to ensure that passengers stuck on aircraft for three hours are provided with food, water, fresh air, light and adequate waste removal services on aircraft that are tarmac bound.[1]

The second was the unusual disruptions reported at Melbourne Airport on July 10 due to fog. Specifically, in The Australian on July 11, Michael Davis reported that some passengers had to wait for three hours on board an aircraft at Avalon Airport (that had flown from Hong Kong) without anything to eat. The airline was not allowed to move passengers to Melbourne Airport by bus, nor was the airline permitted to let the passengers out at Avalon, because there was no Immigration or Customs authority at the regional airport.

So, to put things bluntly, if I had been in the unfortunate position of having been stranded at a New York airport in July, I could conceivably have been entitled to some basic amenities for my comfort and sanity… but no such luck in Australia!

I hear you arguing “weather is out of the airlines’ hands, we all have to deal with it.” And you are undoubtedly right. However, many countries and jurisdictions have found it worthwhile to legislate in favour of passenger concerns in the case of long flight delays. Why are we lagging behind?

For example, it is probably common knowledge to readers that the European Union (EU) compensates passengers for flight delays under Regulation No. 261/2004. Since this regulation came into force in 2005, depending on the length of delay, passengers in the EU are entitled to refreshments as well as compensation from the carrier.

It may be less well known that as recently as November, 2006 an Indian tribunal (the State Commission, Delhi) fixed minimum amounts for compensation in cases of denied boarding and delay.[2] The basis was the Indian Consumer Protection Act 1986. The scenarios which trigger compensation to be paid include any ‘deficiency’ in the aircraft or poor maintenance, as this can be considered to amount to ‘deficiency in service.'[3] Poor weather, visibility and similar do not trigger the passenger payments.

Essentially the State Commission held that incremental payments (starting at INR10,000, or approximately USD224) would be payable by air carriers for domestic flights operating from Delhi when there were delays of two hours or more. Indian international carriers were slugged with a requirement to pay double this to each delayed passenger on international flights when delays of four hours or more occurred.

So, the Indian system would perhaps not have helped our fog-bound passengers in Melbourne. This is to be predicted as the principle cause of delay in Delhi, especially in the colder months, is weather – obviously it would be ludicrous for any carrier to be required to pay the penalty for all Mother Nature’s quirks. However, the New York system might have helped out in Melbourne, as might have the EU system. But do Australian air passengers want or need a bill of rights?

In a 2004 article, Bowran argued that the Australian aviation experience, as with the rest of the world, tended to follow the US with some variable time lag.[4] However, he also noted that Australia and the US have very different aviation industries, in that weather conditions and the relative volume of air traffic here does not create the same kinds of problems as it does in the US. So, it would seem that strictly on the basis of the kinds and frequency of delays experienced in Australia that there is no case for legislative pressure like that which is in force in the US and the EU.

There is one last consideration, though, that could take Australia to a higher and arguably better level than our overseas friends by way of pre-empting legislation. Quite simply, a voluntarily entered and industry-agreed bill of rights. Certain airlines in the US have created their own ‘bill of rights,’ such as JetBlue Airways.[5] But I propose a joint initiative between Australian carriers, which would undoubtedly be the first time such a scheme would have been hatched without legislative prompting.

Of course any such arrangement would have to satisfy Commonwealth Trade Practices legislation as to anti-competitive practices. Perhaps the negotiations between the airlines could be conducted openly and with public submissions as to the most reasonable methods and amounts of compensation for delay. Whatever method is used, assuming ACCC authorisation is granted for any such scheme, then the result could be a boon for the Australian aviation industry, which would very likely be seen by incoming international passengers as flexible and receptive to the concerns of passengers who happen to find themselves in the unfortunate position of being delayed.

Now wouldn’t that be something.