Rights, Remedies Available To Passengers Of Airlines For Breach Of Right By Air Carriers Under The Law, By Maryam Musa El-yakub Esq

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Although travelling by air confers certain rights, responsibilities and obligations on air passengers and air carriers respectively, the issues of air passengers’ rights breach ranging from flight delays, denied boarding, loss of baggage, cancelled flights etc still abound. This can be exasperating for the reason that such situations are very often attended with impunity by the airlines despite the existence of legal frameworks regulating the Aviation Industry in Nigeria and globally. This has continued due to inadequate enforcement of the said laws, lack of proper education of the public concerning the rights and remedies available to them and the unwillingness of victims to challenge the situation.

The Civil Aviation Act 2006 complimented by the Nigerian Civil Aviation Regulation 2015 were enacted to regulate air service, airline operators, with the principal governing body being the Nigerian Civil Aviation Authority. Nigeria is also a signatory to the Montreal Convention, a major international air treaty governing air carriers’ liability for damages caused to its passengers, including death, as it is incorporated into section 48 of the Civil Aviation Act, 2006. Therefore, any person who suffers discomfort or injury arising from the action or inaction of an air carrier is entitled to seek damages.

Part 19 of the Nigerian Civil Aviation Regulations forms the bedrock of liability of air carriers. It has been stated that these regulations are sacrosanct as they fill the gaps left in the Montreal Convention and the Civil Aviation Act. As highlighted in the case of HARKA AIR SERVICES (NIGERIA) LTD V. KAEZAR, (2011) LPELR -1353(SC), liabilities of an air carrier to its passengers could arise from; Injury sustained while on board, death of passenger during the course of a journey, loss or damage of goods/baggage or delay, denial and cancellation of a flight.

The remedies and rights are provided under Part 19 of the Nigerian Civil Aviation Regulation, themed Consumer Protection Regulation(NCARs), which can be chiefly categorized into right to reimbursement and rerouting, right to accommodation and care, and financial compensation to air passengers.

With regards to reimbursement and rerouting and in the event of flight cancellation or denial, PART 19 (9) NCARs 2015 provides that the cost of the air ticket is refundable to the passenger if due to the fault of the carrier, the passenger could not be transported in the way and manner as agreed. By section 19 (1) I NCAR, the passenger is entitled to immediate reimbursement in cash for domestic flights and reimbursement within 14 days for an international flight of the full cost of the unutilized ticket at the price at which it was purchased. By virtue of NCAR 19.8.2, when passengers are offered rerouting to their final destination on an alternative flight pursuant to 19. 10, the arrival time which does not exceed the scheduled arrival time of the flight, originally booked, (i) by one hour in respect of all domestic flights and by 3 hours in respect of all international flights, the international airline may reduce the compensation provided for in section 19.8.1 by 50%. The implication of 19.6 is that, whereas rerouting is one of the remedies for cancellation, the rights available in the event of delay of a domestic or international flight, the passenger is entitled to care, reimbursement, or compensation but not rerouting.

With respect to the right to accommodation and care and in the event of a delay, cancellation, denied boarding or downgrading, section 19(10) NCAR 2015 provides for the right to be cared for by the air carrier at the expense of the operating carrier. Care under this section means, free accommodation, transport between accommodation and hotel, free refreshment, meals, free phone call SMS, emails or fax messages. By section 19.6 where the delay is between 2 and 3 hours, the passengers shall be offered refreshments such as water, soft drinks, confectioneries, and snacks, all free of charge. In addition, passengers shall be offered free of charge two telephone calls, SMS or emails. Where the delay is beyond 3 hours, which period falls between 10 pm till 4 am or at a time when the airport is closed at the point of departure or final destination, the passengers have a right to be accommodated free of charge in addition to being transported to and from the airport as specified in sections 19.10.1 (iii) and 19.10.1 (iv).

Financial compensation to air passengers is also a remedy available in the event of delay of carriage or breach of carriage. In the case of delay of domestic flight in Nigeria, there is no right to monetary compensation under the NCARs. However, if the delay is in respect of international flight, and the delay is within the period of 2-4 hours, the passenger is entitled to monetary compensation in the value of 30% of the cost of the ticket. The summary means that air passengers on a domestic flight in Nigeria are only entitled to reimbursement where a flight is delayed beyond 3 hours.

In view of the provision of section 48 of the Civil Aviation Act, 2006 vis-a-vis the applicability of the Montreal convention in Nigeria, it has been stated that the passenger who suffered as a result of flight delay is entitled to claim monetary compensation in the sum of USD 4,150 same being in line with the provisions of articles 19 and 22 of the Montreal Convention, which in its article 19 recognize the right of the passenger to be entitled to damage where flight is delayed. For ease of reference, Article 19 of the Montreal Convention is reproduced hereunder;

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Article 22 is to the effect that;

In case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,150 special drawing rights.

In respect of cancellation, section 19.7 of the NCARs is to the effect that in the case of cancellation, the passengers concerned shall be offered assistance by the operating carrier in accordance with 19.6 which deals with delays but the assistance provided therein includes reimbursement and right of care, be offered assistance in accordance with 19.9.1(i) and 19.9.2, and in the event of rerouting, when the reasonably expected time for the departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance in sections 19. 9.1(ii) and 19.9.1(iii) (reimbursement and rerouting).

In respect of domestic flights, passengers have the right to compensation by the operating carrier in accordance with section 19.10 (right of care) unless they are informed of the cancellation at least 24 hours before the scheduled time for departure and in respect of an international flight, have the right to compensation by the operating carrier in accordance with 19.10 (right of care including accommodation, free meals and telephone calls).

The following procedure for complaint becomes imperative in the event of air passengers’ rights breach or in the event of a breach of contract of air carriage.

Compilation of documentation which includes: a. Ticket/booking number, Date of the flight, Name of the flight, Reason given by the airline for the delay, cancellation or denial, Any other evidence/document that will be necessary for proving any claim;

b. Forward same with a complaint to the airline;

c. Where the claim for compensation is rejected by the airline, the passenger may either choose to accept the rejection or make a further complaint to the Consumer Protection Directorate of the Nigerian Civil Aviation Authority (NCAA);

d. If the Consumer Protection Directorate rejects passenger’s review, the passenger may refer the matter to the Consumer Protection Council providing all the necessary information and demand for a review of the decision and compel the airline to award the passenger due compensation;

e. If they fail to do so, a passenger may now approach the Court to enforce his or her rights.

With regards to the liability of air carriers for breach of contract of air carriage, the position of the law has been succinctly and aptly captured by the Court in Miss Promise Mekwunye v. Emirate Airline (2019) LPELR SC 488/2014 where the court held that

“The next question to address is whether the limitation of liability under the Montreal Convention is applicable to the instant case in relation to damages or compensation. Indeed, it is the law that the limitation as to damages or compensation provided under the said convention is subject to the exception that the respondent is not found to have acted with intent to cause damage or acted recklessly with the knowledge that damage would be the probable result. This can be seen in Article 22 (5) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montreal 1999) which was domesticated pursuant to Section 48 of the Civil Aviation Act 2006. It has to be said that the Montreal Convention would not provide a cover to air carriers in cases where they deny boarding to a passenger. This is to ensure that cases of wilful misconduct and gross negligence are exempted under Article 212 (2), 22 (5), 30 (3) of the Montreal Convention.

Therefore, the denial of boarding without just cause is both a case of wilful misconduct and a breach of fundamental terms of the contract in fact and law and translates to failure of performance and the carrier cannot run away from its obligations in that regard under the cover of the Montreal Convention.

Fundamental breach of contract was defined by Lord Reid in the case of Suisse Atlantique Soceite d’ Armement Maritime S.A. v N.V. Rotterdamsche (1967) 1 AC 361 thus:- “a well-known type of breach which entitles the innocent party to treat it as repudiatory and to rescind the contract”.

The protection of air passengers’ rights is imperative amidst growing concerns in the aviation industry. Air carriers will have no option but to comply with these regulations where the authorities become intentional about enforcing the same and where there is an increase in social awareness in this regard.

Maryam Musa El-yakub Esq., is a Legal Practitioner and Associate at Law Corridor, Abuja.

maryam@lawcorridor.com