Flights and your rights

Following last week's article on airline delay, barrister Alan Matthews suggests that compensation could be due

Wendy Berliner's 53-hour delay on an Airtours flight back from Florida was described in these pages last week. Simon Calder's advice on what compensation she could expect was, as we like to say in my profession "with the greatest of respect", questionable. While Mr Calder's suggestion that she can do no more than claim on her insurance will please the travel industry, it does overlook legal avenues that may be open to her. My feeling is that if Ms Berliner and her fellow sufferers on that flight did claim against the airline they, like those on the equally disastrous Laker flight, might have a chance of obtaining damages.

Airtours' so-called "Fair Trading Agreement" contains an assertion that the company "cannot accept liability for any payment incurred... nor for any time lost on your holiday". Where someone has cut a coupon out of a brochure containing such conditions and booked for the flight that way, the clause will be part of that contract. However many, if not most, flights are booked and paid for over the telephone. A typical transaction will not involve any more than a discussion of the route, price and flight times. Travel agents seldom, if ever, say "and you accept the term that says you can't have any compensation if things go wrong" or even "the booking is subject to the airline's standard terms".

Once the customer has committed himself to paying for the flight the contract is complete and the airline cannot unilaterally introduce further terms, any more than the customer can.

Even for those people who did book in writing all may not be lost. The Unfair Terms in Consumer Contract Regulations, effective from 1995, prevent businesses from relying on unfair exemption clauses. These regulations have yet to be tested in the higher courts, but they seem designed to cover blanket statements disclaiming liability, such as the one that appears in Airtours' brochure. The Office of Fair Trading also has a power to seek a court order that such a clause is unlawful.

Some help for travellers comes from the Warsaw Convention, which governs international air traffic. Article 19 makes airlines liable for delay. Airlines try to counter this by claiming that their timetables do not constitute contractual terms.

If there were delays that were totally beyond the airline's control, such as fog, a claim for compensation would almost certainly fail. Mechanical faults, which caused Ms Berliner's delay, do not fall into this category.

In a small claims court, where people are encouraged to present their own cases rather than instruct lawyers, I suspect a district judge would be keener to see that people receive fair compensation than to analyse the small print of either a brochure or the Warsaw Convention.

However, I equally suspect that if people like Ms Berliner showed that they were serious about taking action, Airtours would come up with a sensible offer of compensation. Both Airtours and Laker might be prepared to pay up to avoid the bad publicity and administrative disruption of defending hundreds of small claims.