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 


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