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Lawyer, ECOVIS Bondar & Bondar
Air Passenger Rights
The Constitution of Ukraine, the rules of which are directly applicable, establishes that the protection of human rights is the main duty of the state.
In order to fulfill the above-mentioned obligation legislators adopted a number of legal acts that should ensure the proper and effective regulation of consumer rights, including in the course of air transportation.
In particular, on 19 May 2011 the Verkhovna Rada of Ukraine adopted a new Air Code, which is currently the major law regulating the aviation industry in Ukraine, including issues regarding protecting passengers rights.
Besides that, for the purpose of bringing national legislation into line with international standards pertaining to ensuring passengers’ rights, on 17 December 2008 the Law of Ukraine On Accession of Ukraine to the Convention for the Unification of Certain Rules for International Carriage by Air was enacted.
It should be noted that the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal on 28 May 1999 (hereinafter — the Montreal Convention) was adopted in order to enhance the legal regulation of international carriage by air and eliminate legal regulation gaps which were not eliminated by the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed on 12 October 1929 (hereinafter — the Warsaw Convention, ratified by the Ukrainian SSR on 14 August 1959, record number 995-181).
The Montreal Convention establishes the following major passenger rights in the course of transportation air:
— the right of a passenger to compensation for any physical injury caused;
— the right to compensation in case of death of a passenger;
— the right to compensation for damage caused in case of destruction, loss, or damage of checked-in baggage;
— the right to compensation for damage caused by delay in transportation of passengers or checked in baggage;
It is noteworthy that the Montreal Convention provides for a two-tier system of the carrier’s liability for damage caused by the death or physical injury of a passenger. The first tier concerns the objective liability in the amount up to 100,000 special drawing rights (at the moment 1 special drawing right amounts to approximately EUR 1.25) per each passenger regardless of the carrier’s fault. The second tier is based on the presumption of the carrier’s guilt and does not provide for any limitation on the carrier’s liability. Regarding the second tier, the carrier can avoid liability only if it proves that the death or physical injuries of a passenger were not caused through its fault.
In addition to the aforesaid regulatory acts, passengers’ rights in the course of transportation air are regulated by the Rules of Air Carriage of Passengers and Baggage approved by Order No. 735 of 30 November 2012 issued by the Ministry of Infrastructure of Ukraine (hereinafter — the Rules of Air Carriage of Passengers and Baggage) and the Law of Ukraine On the Protection of Consumers’ Rights (except for issues regulated under the Air Code of Ukraine, the Rules of Air Carriage of Passengers and Baggage, international treaties of Ukraine).
As we can see, quite a lot of attention is paid by the current legislation of Ukraine to the legal regulation of passengers’ rights in the course of air transportation.
What Rights are Granted to a Passenger Using Air Transport, and Does National Legislation Comply with International Standards?
Ratification by Ukraine of the Montreal Convention and analysis of the new edition of the Air Code and the Rules of Air Carriage of Passengers and Baggage give grounds to claims that current Ukrainian legislation complies with international standards pertaining to ensuring passengers’ rights in the course of air transportation.
For instance, provisions of Section XII of the Air Code of Ukraine dealing with passengers’ rights are almost completely based on the provisions of Regulation 261/2004 adopted by the European Parliament and the Council of the European Union on 11 February 2004 concerning establishment of common rules on compensation and assistance to passengers in case of being denied boarding, flight cancellations, or long flight delays (hereinafter — Regulation 261/2004).
It should be noted that apart from the rights envisaged by the Montreal Convention, current legislation of Ukraine singles out
other passengers’ rights as well, including, inter alia, the following:
— the right of a passenger to compensation in case of being denied carriage;
— the right of a passenger to compensation in case of flight cancellation;
— the right of a passenger to compensation in case of flight delay;
— the right of a passenger to compensation in case of changed service class in the course of air transportation;
As far as it relates to the rights of a passenger to compensation in the event of denied carriage it is, first and foremost, necessary to determine whether such carriage was denied with the consent of the passenger or against the will of the latter.
In the first case, the air carrier and the passenger shall voluntarily agree a sum of compensation. In addition to the said compensation, the air carrier shall offer the passenger to choose an option of receiving compensation for the cost of the ticket (and, if required, shall provide for a return flight to the initial point of departure, as soon as possible) or change the route to the destination point.
If a passenger is denied carriage against his/her will or a flight is cancelled, the carrier shall, apart from compensation of the cost of a ticket or change of route to the destination point, pay compensation in the following amounts:
EUR 250 for a flight of up to 1,500 kilometers;
EUR 400 for a flight from 1,500 up to 3,500 kilometers;
EUR 600 for a flight of over 3,500 kilometers.
At the same time, legislators entitle the air carrier to reduce by 50% the amount of the above-mentioned compensation if a passenger is offered a change of route to the point of destination by an alternative flight, the arrival time of which does not exceed the scheduled one:
— by two hours for a flight of up to 1,500 kilometers;
— by three hours for a flight from 1,500 up to 3,500 kilometers
— by four hours for all other flights.
One should bear in mind that a passenger will have the right to compensation in the event of a cancelled flight, only if the air carrier failed to inform the passenger of cancellation of such a flight at least two weeks prior to the scheduled time of departure.
Certainly, the current legislation of Ukraine makes provision for events when the air carrier can inform a passenger of flight cancellation less than two weeks prior to the scheduled time of departure and avoid the necessity to pay compensation, but only if the air carrier provides an alternative route to the point of final destination.
The issue pertaining to the air carrier’s liability for flight delays is also a pressing one, because in reality this situation occurs quite often and it is unlikely that all passengers know the scope of rights granted to them under such circumstances.
In case of flight delay from 2 up to 4 hours (depending on the flight distance), current Ukrainian legislation obliges the air carrier not only to provide passengers with meals and cold beverages pursuant to the waiting time for a new flight, but also with a possibility to make two telephone calls or send an e-mail (or fax message), subject to the airport’s technical facilities.
Naturally, there are cases when a flight is delayed for a day or more. In such a situation, the air carrier shall provide passengers with hotel accommodation, meals and transfer from the airport to the hotel and back to the airport.
In this case, one should bear in mind that if a flight is delayed for more than 5 hours, a passenger has the right to demand from the air carrier compensation of the ticket cost or change of the route to the final point of destination as soon as possible, or later if the passenger wishes so, and if seats are available on board.
And finally, let’s imagine a situation when a passenger gets on board the aircraft after all and it seems that nothing can ruin his/her good mood anticipating the coming trip, when suddenly the air carrier informs the passenger that due to certain reasons he/she will be accommodated in a class lower than the one indicated in the ticket. Under such circumstances, legislators oblige the air carrier to pay compensation in the amount from 30% up to 70% of the fare, depending on the flight distance.
It is noteworthy that, in its turn, the air carrier has no right to demand any additional payment if a passenger is accommodated in a class higher than the one indicated in the ticket.
Summarizing the previously mentioned, we believe that current Ukrainian legislation regulating the rights of passengers complies with core international standards and practices of the European Union, although in certain issues Ukrainian legislation regulates areas of aviation business in too much detail.
At the same time, further development of the aviation industry demands that legislators continually enhance legal regulation of this industry not only in order to protect passengers’ rights, but also to ensure flight safety of civil aviation.
In order to guarantee a balance of interests, the legislator should take into consideration not only the interests of passengers, but also the interests of airline companies. Disproportionate and unjustified increase in the obligations borne by legislators will certainly have an impact on the carriage cost, which in its turn will increase the price of a passenger’s ticket.
Furthermore, when enhancing legal regulation of the aviation industry, legislators should bear in mind that it is necessary not only to fix passengers’ rights in official documents, but to also establish real and effective means for exercising proclaimed rights and protecting them from violations by the air companies as well.