Aviation law – denied-boarding and delayed flight compensation system for passengers

Jolanta Budzowska        28 August 2017        Comments (0)

Fortunately, air travel disruptions rarely result in passenger injuries. The damage usually takes on a more prosaic dimension, coming down to material loss caused by the delay or cancellation of the flight. In that case, the passenger can claim a fairly quick compensation.

What simplifies the process is the EU Regulation 261/2004, which entered into force on 17th February 2005. It established common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, which have also been further enhanced by the European Court of Justice’s judicature.

The compensation is fixed, totalling €250, €400 and €600 (depending on the flight’s duration, under Article 7 of the Regulation), and it is sufficient to prove that the flight reached its final destination three hours or more after the scheduled arrival time.

However, the compensation will not be payable, if the delay or cancellation was caused by circumstances which could not have been avoided even if all reasonable measures had been taken. Those extraordinary circumstances (strong wind, a huge storm, non-negligent lack of take off clearance or a strike) impact the air carriers obligations, limiting or excluding them completely.

The Regulation does not set a time limit on the claim, and in this respect the case law in Poland has been somewhat discrepant in the past few years. Thankfully, the Supreme Court has recently dissolved this ongoing dispute. Firstly, the Court ascertained that the Montreal Convention for the Unification of Certain Rules for International Carriage by Air does not apply to the claims under Article 7 of the Regulation – therefore the two-year limitation period is not applicable. Furthermore, as the claims are contract-related (contract of carriage) and not pursued under delict, a three-year period will not apply either.

Ultimately, the Supreme Court[1] established a one-year limitation period for the fixed compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

It is worth mentioning that in order to successfully pursue a claim, the evidence supporting it ought to be collected as early on as possible – preferably during the time spent waiting at the airport. A useful example of such evidence would be a delayed flight confirmation issued by an airline representative or another member of the airport staff. Even a photograph of the flight information display system could later prove to be important. It is also pragmatic to collect basic data from your co-passengers, as joint claims are processed quicker and are treated individually by the carrier.

Civil Aviation Authority’s statistics show that the number of aware passengers in Poland has noticeably raised. In 2016 there were 5980 claims (4646 of those regarding flight delay) compared to only 815 compensation claims in 2006.

The draft amendment to the Aviation Law, which is now being processed, provides for tightening of the criteria – following the aforementioned Supreme Court ruling. Passengers will be able to start a claim for a delayed or cancelled flight within a one-year time limit: regardless whether they chooses to bring the case to court or file a complaint with the President of the Civil Aviation Authority.

It should be stressed that the limitation period does not apply to personal injury or death due to airplane crash nor to any in-flight injuries on airplanes (e.g. resulting from turbulence or emergency landing).

[1]Supreme Court decision dated March 17th 2017 r., file ref. no. III CZP 111/16 


The many benefits of being a personal injury lawyer

Michał Krzanowski        11 August 2017        Comments (0)

There’s no mistaking it: a lawyer’s job can be a drudge at times. Fortunately though, there are also days that make up for all that, and more. For me one of such days was yesterday, when I had the pleasure to meet with the Members of one of America’s greatest bands – The Dillinger Escape Plan.

The Dillinger Escape Plan is an American band from Morris Plains, New Jersey, formed in 1997. The band is often regarded as one of the pioneers of the mathcore genre, and throughout their career they have become very well known for their intense, energetic shows. The band received many awards and accolades, such as the Golden God Award from Revolver Magazine for “Best Underground Band” (in 2010). Moreover, at the 2017 Association of Independent Music Awards the band is going to be honoured again, as they are set to receive the “Outstanding Contribution to Music” prize. Apart from that, the band Members have been honoured individually for their accomplishments and talent on several occasions. The band currently consists of the following Members:

  • Ben Weinman (lead guitar)
  • Liam Wilson (bass)
  • Greg Puciato (lead vocals)
  • Billy Rymer (drums)
  • Kevin Antreassian (rhythm guitar)

Insofar the band has recorded the following studio albums:

  • Calculated Infinity (1999)
  • Miss Machine (2004)
  • Ire Works (2007)
  • Option Paralysis (2010)
  • One of Us Is the Killer (2013)
  • Dissociation (2016)

Unfortunately, during the band’s January-March 2017 European tour, promoting the latest album – Dissociation, the Members were involved in a road traffic accident. The accident occurred in Poland, while the band was travelling to Kraków after an outstanding performance in Warszawa. As a result of said accident, the band was forced to cancel the tour, with 19 shows remaining to be played (including the one in Kraków). The band Members sustained several injuries, and required medical treatment. Additionally, most of the band’s equipment was damaged beyond repair.

On 10 August 2017, the band safely returned to Kraków in order to play the cancelled show. This was a unique opportunity for me to meet in person with the Members of the band, whom we are representing in their personal injury case. Due to the fact that the accident occurred in Poland, Polish law is applicable to the case.

You can find out more about the accident in press coverages, such as the following: http://www.metalinjection.net/

What you didn’t know about lawyers

Jolanta Budzowska        08 August 2017        Comments (0)

It is essential for a personal injury lawyer to be engaged with the broader legal community. I am a member of multiple international organisations (more information here), and have recently expanded my professional activity to a membership in the American Association for Justice. With a history of over 70 years, this organisation continually focuses on expanding their international coalition of attorneys, law professors, paralegals, and law students. To improve the quality of networking in the International Practice Section, the members agreed to answer a questionnaire designed to get to know each other.

Below you will find my answers, so you too can peek into my personal side. I, for one, was very excited to find out that one of my colleagues was once a part of a band called Julie and the Jelly Babies! If you are an AAJ member, you can access said newsletter here.

Many thanks to Karina Shreefer for interviewing me!

*****

Favorite international city

As it is far too difficult to pick a city, I’d rather choose a country: Iceland! You can never get enough of Scandinavian heritage, and it’s so beautifully visible in the Icelandic culture. Not to mention Iceland’s magical landscapes.

Name an item on your bucket list

Backpacking through Kyrgyzstan.

Favorite food

Moroccan lamb tagine.

Person(s), living or dead, with whom youd most like to have dinner or drinks

Noam Chomsky

Most surprising difference between US law and the law of your country

The existence of a grand jury. It gives trial lawyers an opportunity to really prove themselves in court.

Advice you would give to yourself at age 20

It might sound like a cliché, but I wish I travelled more and had taken the opportunity to study abroad, which is why my daughter has already spent a year in England. 🙂

Most satisfying professional accomplishment

Every case I handle is very special to me, although there are a couple that stand out: an aviation personal injury case which my law firm handled alongside two other international firms, where we pursued a claim in the United States for a group of over a hundred plaintiffs, and a case where the court of appeals not only overturned the district court judgment, but also awarded my client with the highest compensation in Poland for the wrongful death of her daughter.

Three words to describe you

Persistent, Family-orientated, Competitive

Which languages do you speak?

English, Polish, German

Best thing about AAJ/International Practice section

Sharing knowledge and exchanging experiences.

What do you do in your spare time?

You will either find me with a book in my hand or catching up on The Good Wife.

Many ways to assist

Jolanta Budzowska        17 July 2017        Comments (0)

Today I received an email that read:

I am delighted to advise that the claim of XY has today settled for the total sum of ŁXX,YYY.

Your considered advices and professional guidance has undoubtedly assisted in achieving this settlement.

I am grateful for your help and look forward to working with you again soon.

It gives a sense of fulfilment and gratification not only to me, but first and foremost to the attorneys who worked on this case. This time, my role was different than usual – instead of working as an attorney, I performed the role of an expert in the field of Polish law. I am extremely glad that my expertise served as a reliable piece of evidence, and helped in the process of working out a solution beneficial to both parties.

This was a cosmetic surgery medical malpractice case, and since the British citizen underwent surgery in a Polish clinic, Polish substantive law was applied to asses the claim.

 

An Interesting Choice

Michał Krzanowski        10 July 2017        Comments (0)

Interest on personal injury damages has been a hot topic of debate for many years in Poland. Even the Supreme Court’s standpoint on the matter has seen several revisions by now. More importantly, it is far from just an academic discussion, as personal injury trials tend to last for at least a few years, which makes the interest resolution significant – for both parties.

As far as provisions are concerned, article 481 § 1 of the Polish Civil Code stipulates that if the debtor delays with performance, the creditor may claim interest for delay, even if he has not suffered any damage, and even if the delay resulted from circumstances which the debtor bears no liability for.

Said provision regulates interest in the most general sense, and finds application in many different cases and in regard to several different claims – including personal injury damages. This is not disputed in any way, but what causes great controversy is the exact moment from which interest should run. Since the obligation arises from tort, usually there is no legal relationship between the parties prior to the tort being committed. As a result, the time of providing performance is not strictly determined, and it also does not follow from the properties of the obligation.

Such situations have been taken into account and are regulated by article 455 of the Civil Code, which stipulates that if these aforementioned conditions are met, the performance should be provided immediately after the debtor has been given a notice to perform the obligation. As such, it would seem clear that the if the debtor fails to comply with the latter, he is deemed to fall into arrears, which entails the duty to pay interest.

However, despite the abovementioned provisions, two important tendencies in the way of awarding interest on personal injury damages have developed in the Polish doctrine and judicature. The first is to award interest on such damages from the date of judgment, while the second entails the award of such interest from the day following the expiry of the deadline for its payment, depending on the circumstances of the case (almost always the day after the debtor has been informed about the debt and called to cover it, as provided by article 455 – but there are some exceptions).

What justifies the latter standpoint are primarily the particular characteristics of the claim at issue, because it arises when its statutory premises have been fulfilled, and since that moment the injured party may call the debtor to make the payment. As soon as that call is made, the debtor is obliged to provide the performance. Such standpoint has seen a lot of support from the Supreme Court, according to which if the debtor does not provide punctual payment of personal injury damages, the creditor is not able to take advantage of the monetary performance due to him. Accordingly, detriment suffered by the creditor for that reason should be remedied by awarding him interest for the delay, and apart from some exceptions, mentioned above, article 455 of the Civil Code should be applied in such cases to determine the initial date.

However, the other tendency, i.e. to award interest from the date of judgment, does still have several supporters, and the dispute can hardly be considered resolved. What is more, a new approach has been gaining ground recently, in accordance to which each case should be analyzed individually, and it should be determined whether there were any objective obstacles preventing the debtor from covering personal injury damages prior to the date of judgment, which should then influence the interest resolution accordingly. It is noteworthy that believing the claims are not justified is not considered such an obstacle.

In the end, both the aggrieved and the tortfeasors have to endure a fair share of uncertainty when it comes to the matter of interest, and there does not seem to be any resolution in sight.