Chapter § 2.06 FLIGHT DELAYS

JurisdictionUnited States
Publication year2021

§ 2.06 Flight Delays

A flight delay is any deviation from the contracted departure and return times. A flight delay, which may involve the complete cancellation of a flight,712 may be caused by a variety of circumstances,713 including mechanical malfunctions,714 bad weather or other acts of God,715 negligence,716 misconnections and schedule changes,717 strikes,718 false imprisonment,719 gate and flight time changes,720 long wait on lines,721 wrongful detention,722 congestion,723 wrongful refusal to board,724 racial and ethnic profiling,725 failure to reconfirm reservations,726 various delays,727 failure to care for a disabled passenger,728 discrimination,729 misrepresentations,730 airline overbooking,731 bank- ruptcy,732 insults and indignities,733 failure to deliver first class tickets,734 wrongful expulsion,735 failure to adequately screen security risks,736 medical emergencies,737 irresponsible scheduling of flights,738 failure to act,739 a "ten minute" rule,740 failure to meet and assist,741 failure to provide adequate water, food and restroom facilities,742 false arrest,743 misinformation,744 being "too fat,"745 and even such bizarre circumstances as civil disorder.746

As with other common travel problems arising within the context of airline transportation, there are two legal systems that govern the rights and remedies of injured travelers. Delays arising within the context of domestic airline transportation are governed by the common law as modified by the Federal Aviation Act,747 the Aviation and Transportation Security Act,748 and regulations thereunder, and D.O.T. consumer protection rules,749 including those governing oversales,750 discrimination,751 and public charters.752 Delays arising within the context of international airline transportation are governed by the Warsaw and Montreal Conventions.753 Flight delays within the European Union are governed by yet another set of rules.754

[1] Contract of Carriage

Air transportation services are marketed and sold to the general public within the context of specific promises regarding the date and time of departure and return. The contract of carriage only applies to point-to-point air transportation. Even if the ticket provides for round-trip air transportation, the air carrier owes no continuing contractual or common law duty to the passenger after he disembarks at the initial destination and before he embarks to his final destination.755 The ubiquitous "On Time Performance" is, clearly, a standard by which air carriers measure their own performance as well as that of their equally "timely" competitors. "On Time Performance" is also a measure by which the Department of Transportation rates domestic airlines. The Department requires airlines to file information, on a timely basis, regarding their service and performance levels, which the Department then publishes indicating the ranking of responding airlines.756 Domestic airlines are required to disclose the on-time performance assigned to a given flight.757 Airline tickets contain specific information regarding the date and time of departure.

Domestic airline tickets also contain a wide spectrum of disclaimers and liability limitation provisions.758 In purchasing air transportation, travelers are vitally interested in the date and time of departure and return, particularly with respect to planning their activities at the point of destination. With the exception of "safe" transportation,769 there is no more important aspect of the contract of carriage than the delivery of "timely" transportation. Although some courts have held that timetables do not constitute a "warranty of punctuality,"760 a failure to deliver timely air transportation has been held by some courts to constitute a breach of the contract of carriage.761 In addition, passengers are also interested in how they would be treated during a weather-related delay.762 Such a breach may also constitute negligence,763 fraud764 and the violation of applicable statutes and regulations.765

[2] Enhancing Airline Passenger Protections

New and revised regulations were enacted in 2010766 and again in 2011767 seeking to enhance airline passenger protections in the following ways: "By requiring air carriers to adopt contingency plans for lengthy tarmac delays and to publish those plans on their Web sites; by requiring air carriers to respond to consumer problems; by deeming continued delays on a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. 41712; by requiring air carriers to publish information on flight delays on their Web sites; and by requiring air carriers to adopt customer service plans, to publish those plans on their Web sites and audit their own compliance with their plans."768

This Chapter discusses in separate sections the DOT's tarmac rules,906 chronically delayed flights as a deceptive business practice,770 disclosure to consumers regarding on-time performance771 and retroactive changes to the contract of carriage.772 In addition, domestic air carriers are "to designate an employee to monitor the effects of flight delays, flight cancellations, and lengthy tarmac delays on passengers and to provide input into decisions on which flights to cancel and which will be delayed the longest."773 Domestic air carriers must provide passengers with their "e-mail or Web-form address and their mailing address" for the submission of consumer complaints.774 And domestic air carriers must acknowledge "a complaint [within 30 days of receipt] and [within] 60 days . . . provide a passenger with a substantive response [which] should allow carriers adequate time to investigate and respond appropriately."775

[3] Defenses in Flight Delay Cases

It is clear that air carriers are liable for flight delays in a proper case. As a general rule, air carriers may, under appropriate circumstances, disclaim776 or limit some of their liability for breach of contract and negligence. Such disclaimers. often contained in tariffs incorporated by reference in the contract of carriage, may be subject to attack on the grounds of readability, notice, reasonableness, and unconscionability. Above and beyond contractual disclaimers, however, there are additional defenses that may be posed by air carriers.777

[a] Privity of Contract Defense

When a carrier contracts with a tour operator778 to sell air transportation, there is no direct contract between the carrier and the traveler. It is therefore likely that the carrier will claim that the traveler lacks standing to sue in the absence of privity of contract.779 It has been held, however, that injured plaintiffs may be third party beneficiaries of the contract between the air carrier and the tour operator and, hence, have standing to assert a breach of contract cause of action against the air carrier.780

[b] Bad Weather and Acts of God

A plaintiff faced with an act of God defense must be alert to two factors. First, is the nature of the proof offered by the carrier sufficient to establish the defense? Second, is there a causal connection between the "act of God" and the flight delay.

In a case in which the carrier claimed a snowstorm caused the delay, the carrier, on a motion for summary judgment, introduced newspaper clippings describing the storm. The court held that the news reports amounted to hearsay and were not adequate in probative value.781 Of interest, however, is the court's statement that although newspaper stories are not proper to support a motion for summary judgment, they may be adequate to raise a question of fact when submitted in opposition to a motion for summary judgment.782

With respect to causal relation, the court held that it was incumbent on the airline to show that it acted reasonably to reinstitute the flight once the storm had ceased and the airport completed its clean-up operations.783 The courts have addressed liability arising from bad weather.784 In addition, the consumer's decision to cancel a flight because of fear of a storm may not be sufficient to warrant a refund.785

[c] Mechanical Malfunctions

Under the tariff system,786 air carriers may be permitted to disclaim liability for mechanical malfunctions. Under the common law, this defense may be unavailable.787 One court has demanded that before it will accept a defense of mechanical malfunction, the carrier must offer proof that the malfunction was truly unforeseeable.788

[d] Defense of Passenger Safety

Passengers may be removed from airplanes or refused boarding on the grounds that the safety of other passengers may be endangered. Such grounds would serve as a defense in an action based on flight delays.789

[e] Strikes

An airline may be unable to deliver contracted for air transportation because its pilots, flight attendants or other workers decide to strike. In Leake v. American Airlines,790 the plaintiff lost her cruise vacation because of a pilots strike. In denying the airline's motion for summary judgment, the Court noted that the airline could not rely solely upon a strike to absolve it of liability for the foreseeable damages of passengers whose flights were canceled or delayed.791

[f] Warsaw and Montreal Conventions

If a flight delay occurs within the context of international air transportation (defined as air transportation between countries that are signatories to the Warsaw Convention and/or the Montreal Convention)792 then a defense may be asserted by the air carrier that these Conventions offer the exclusive remedy for passengers and the air carrier's liability is limited to the provisions therein.793

[4] Damages for Flight Delays

Common law contractual damages are those which put the plaintiff in as good a position as he would have been had the contract not been breached.794 In addition, damages which are foreseeable and flow from the breach are recoverable as consequential damages.795 Damages due to the cancellation of a flight may consist of the cost of alternate transportation that is...

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