Lloyd's Maritime and Commercial Law Quarterly
TURBULENCE AHEAD—OF VOLCANIC ASH, FRUSTRATION AND EC PASSENGER RIGHTS
Christopher Bisping *
The EU Air Passenger Rights Regulation imposes an obligation on airlines to provide passengers with meals, refreshments and accommodation in most cases of delay and cancellation irrespective of the reason for the delay or cancellation. Other passenger rights, such as the right to compensation, are subject to a force majeure exception. This article argues that in certain situations, where the delay is beyond the control of the airline and abnormally long, airlines should not be liable. This follows from the doctrine of frustration which trumps the operation of the Air Passenger Rights Regulations. This result is also the economically more efficient.
A. INTRODUCTION
The eruption of the volcano Eyjafjallajökull caused severe disruption to European air traffic. Landings and departures from airports in many European countries were suspended for five or more days and British airports only allowed aircraft to depart or arrive after a closure of six days. The shut-down of European airspace caused disruption to millions of air passengers who either could not depart on a journey or could not return home. The stranded passengers might face several problems: (a) they might have had to pay for accommodation and maintenance abroad; (b) they might have had to pay for alternative travel arrangements to return home; (c) they might also have suffered further damage due to their delayed departure or return; and (d) they might face the question of compensation for unused flights etc. The European Union has reminded passengers that they are protected under the Air Passenger Rights Regulation1 which provides for a right to care in case of cancellation or delay.2 This right includes meals and accommodation, which must be provided free of charge, and is believed not to be subject to any excuse that the cancellation or delay is beyond the airline’s control.3 Airlines have complained that this
* Lecturer, University of Leicester. I owe gratitude to Professor Hugh Beale, Drs Carsten Jungmann, Daniel Attenborough, Pablo Cortes, Andromachi Georgosouli and Camilla Andersen for their comments on an earlier draft. Any errors and omissions are, of course, entirely mine.
1. Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights [2004] OJ l46/1.
2. Ibid, Art 9.
3. M Broberg, “Air Passengers’ Rights in the European Union: The Air Carriers’ Obligations vis-à-vis their Passengers under Regulation 261/2004” [2009] JBL 727, 741.
TURBULENCE AHEAD
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