IMPUNITIES OF AIRLINE OPERATORS: THE RIGHTS AND REMEDIES AVAILABLE TO PASSENGERS UNDER THE LAW.
Ganiyu Ajibola Bello, Esq. and Maryam Musa El-yakub, Esq.
The impudence with which airline operators treat passengers are becoming unbearable and some of the situations have been condoned by passengers who do not know their rights as provided under the law especially in cases of domestic flights. Passengers succumb to the ill-treatments of domestic air carriers as though they are at their mercies. It is worthy of note that travelling by air confers certain rights, responsibilities and obligations on air passengers and air carriers respectively while the issues arising from breach of air passengers’ right ranging from flight delays, denied boarding, loss of baggage, cancelled flights e.t.c. still abound. These 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.
PROTECTION OF RIGHTS UNDER THE NIGERIAN CIVIL AVIATION REGULATIONS
The Civil Aviation Act 2006 complemented by the Nigerian Civil Aviation Regulation 2015 were enacted to regulate air service and 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 flight.
The rights and remedies provided under Part 19 of the Nigerian Civil Aviation Regulation are themed Consumer Protection Regulation, 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, Section 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 Section19.9.1 (i), the passenger is entitled to immediate reimbursement in cash for domestic flights and reimbursement within 14 days for international flight of the full cost of the unutilized ticket at the price at which it was purchased.
The computation of compensation was provided by Section 19.8.1 (i) and (ii) to the effect that where reference to compensation is made, it shall be 25% of the fares or passenger’s ticket price in case of flights within Nigeria and 30% in case of international flights. Although, by Section 19.8.2, where passengers are offered rerouting to their final destination on alternative flight and the arrival occurred one hour later in case of domestic flights or three hours later in respect of international flight, the international airline may reduce the compensation provided for in section 19.8.1 by 50%.
The operation of the computation above is in the remediation of incidences of delay which is most recurrent issues in airline operations especially domestically. To that end, Sections 19.6 and 19.7 respectively addresses what the air carrier is obligated to do for the passenger in cases of delay and cancellation.
With regards to delay, Section 22.214.171.124 is to the effect that where there is to be a delay for a domestic flight, the air carrier shall give reasons for the delay within 30minutes and after two hours, accord the passenger with certain right to care including provision of refreshment, meal, hotel accommodation, transport to the hotel, telephone calls, SMS and email as may be required. (see Section 19.10.1). Once the delay exceeds three hours however, the passenger shall be entitled to reimbursement and all the foregoing right of care becomes even more imperative where the time of delay fall between 10:00pm – 04:00am.
With regards to international flights, section 126.96.36.199 (i) – (iii) is to the effect that where the delay is between two to four hours, the air carrier shall provide the passenger with compensation as discussed above, i.e. 30% of the fare or ticket price including telephone calls, SMS and email. Where the delay exceeds, four hours however, there shall be provision of meal in addition to the telephone calls, SMS and Email and where the delay exceeds six hours, there shall be hotel accommodation.
With regards to cancellation, the provision of section 19.7.1 (iii) is to the effect that passengers of domestic flights have a right to compensation as have been highlighted above where flights are cancelled without being informed of the cancellation at least within 24 hours before the scheduled time of departure. Upon cancellation, an explanation as to the alternative transportation is also requires and it shall be the burden of the air carrier to establish that the passenger was informed. Although the air carrier shall not be obligated to pay compensation if it can prove that the cancellation was due to extraordinary circumstance. (See sections 19.7.2, 19.7.3 and 19.7.4).
RIGHTS PROTECTED UNDER THE MONTREAL CONVENTION
In view of the provision of section 48 of the Civil Aviation Act, 2006 vis-à-vis the applicability of the Montreal convention in Nigeria, it is to be noted that by the combined effect of Articles 19 and 22 of the Montreal Convention, a passenger who suffered as a result of delay in flight is entitled to claim monetary compensation in the sum of 4,150 Special Drawing Rights (SDR). The said Articles are for avoidance of doubt reproduced thus:
“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.”
“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.”
It should also be noted that air carrier can also be liable for delay in delivery or loss or destruction to baggage of passengers as Article 22:2 of the Montreal Convention stipulates that:
“In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights for each passenger…”
It should be quickly stated that Special Drawing Rights are not themselves monies but are international monetary assets that are nevertheless convertible and at the time of writing this piece, one SDR is equal to N552,721 on the official site of the Central Bank of Nigeria.
“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.”
PROCEDURE FOR ENFORCEMENT
Upon ascertaining the right that is breached by an air carrier, complying with the procedure for complaint becomes imperative and the said procedure is thus:
a. Compilation of documents in relation to the following:
- 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 further complaint to 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 the Passenger is dissatisfied with the outcome, a passenger may then 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 provision 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 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 willful misconduct and gross negligence are exempted under Article 22 (2), 22 (5), 30 (3) of the Montreal Convention.
Therefore, the denial of boarding without just cause is both a case of willful misconduct and a breach of fundamental terms of 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’ right is imperative amidst growing concerns in the aviation industry. Air carriers will have no option than to comply with these regulations where the authorities become intentional about enforcing same and where there is an increase in social awareness in this regards.
Ganiyu Ajibola Bello, Esq., is a Legal Practitioner and Senior Partner at Law Corridor, Abuja.
Maryam Musa El-yakub Esq., is a Legal Practitioner and Associate at Law Corridor, Abuja.