My brother-in-law sued Emirates

[Danger]

My brother-in-law sued Emirates in an Australian court this week over the fare Emirates sold back in February from Penang (see this FlyerTalk thread for the deets). He's alleging breach of contact after EK cancelled the itinerary he bought through Expedia on 11 February, two days after he purchased it. Expedia told him, by way of email:

We have been made aware by Emirates airline that in February 2020, they experienced a system issue which caused a number of tickets from Penang to Singapore to be erroneously routed via Dubai. Emirates have since rectified this booking issue and any erroneous tickets have been automatically cancelled.
As such, your recent booking [redacted] has been cancelled by Emirates airline.

The case has been adjourned for the magistrate to review submissions and case law.

Both of us have been really struck, however, by a submission Emirates made to the court hours before the hearing began alleging that no contract actually ever existed, citing a 1975 High Court case to support its argument.

The question of when a contract comes into existence between the airline and the prospective passenger after a ticket has been issued was considered and determined by the High Court in Macrobertson Miller Airline Services v Commissioner of State Taxation (W.A.) (1975) 133 CLR 125. The issue arose in that case because it was contended that a ticket, once issued, was an agreement or memorandum of an agreement on which stamp duty was payable.

The High Court held that the issue of the ticket did not bring into existence an agreement on which duty was payable.

...

[In reference to my BIL's case] At most, there was an executory contract which would entitle the Claimant to a refund if carriage did not occur (see Jacobs J at page 145). There was certainly no contract which would entitle the Claimant to damages for breach of contract as a result of a failure to carry the Claimant in accordance with the ticket or to impose a voluntary refund. [emphasis added]

The effect of all this is that Emirates has argued to a court that, at least in Australia, no contract exists between Emirates (and, presumably, any other airline) and the passenger when a ticket is paid for and the airline issues that confirmed itinerary. Emirates appears to have argued that a contract doesn't actually exist until the passenger physically checks-in.

To my BIL and I, this has pretty significant ramifications for Emirates passengers, both seeking to enforce the contract and, potentially, in reverse when they attempt to rely on provisions of that contract. What's further interesting about this statement is that the submission to the court was made by EK's Australian lawyer (a) not on letterhead; (b) without referencing the case number; (c) without referencing the name of the defendant (EK); (d) without referencing the claimant (my BIL), and (e) without a date.

(EK's conditions of carriage (all 35 pages) are here and conditions of contract and passenger notices is here.)

 

[Anna]

Out of interest, how is your BIL quantifying his loss? I assume he got a refund when the booking was cancelled?

 

[kpc]

This was clearly a "mistake" fare that FFers were trying to take advantage off. As a neutral observer, good luck to your b in law but I don't like hiS chances.

 

[muppet]

This was clearly a "mistake" fare that FFers were trying to take advantage off. As a neutral observer, good luck to your b in law but I don't like hiS chances.

Agreed. But it this contractual leniency is only one-way. I've never heard of an example where an airline mistakenly charged too much and refunded the difference...

If customers could cancel without penalty when we made mistakes, then fair enough, but we know that's not true.

 

[Danger]

Out of interest, how is your BIL quantifying his loss? I assume he got a refund when the booking was cancelled?

Yes, EK did refund - four months after cancelling. He is quantifying his loss as the cost of a replacement ticket, less what was refunded (a difference somewhere about $3K, I think). It is the same method he used when he brought action against British Airways over its cancellation of the Dusseldorf to Kuala Lumpur F fare back in August 2015. He won that case.

This was clearly a "mistake" fare that FFers were trying to take advantage off. As a neutral observer, good luck to your b in law but I don't like hiS chances.

Out of curiosity, what do you consider the "mistake" to be?

 

[kpc]

Out of curiosity, what do you consider the "mistake" to be?

EK First PEN-DXB (via SIN) for 600USD (with caveat)

Still bookable on EK Website : You have to use the multi destination option.

PEN to DXB
DXB to SIN

Perfectly working, still under 3000 MYR, all segment in First Class

Full refund for 400MYR.

If it's not honored, I think we will get a nice compensation.

 

[moa999]

I'm surprised they aren't asking it to be thrown out for lack of jurisdiction.

I'd have thought you would need to use Malaysian or Dubai legal systems.

 

[MEL_Traveller]

Both of us have been really struck, however, by a submission Emirates made to the court hours before the hearing began alleging that no contract actually ever existed, citing a 1975 High Court case to support its argument.

Yeah. It's a tricky area. This is not a new issue... going back 25 years there was a question as to the point at which a contract actually forms with the airline. Is it at check-in? Is it on actually boarding the aircraft? Or some point in between? Emirates is at least accepting that it occurs at check-in.

Back then, there was a line of thought that airline tickets are too vague to form a contract... they don't guarantee flight times, the day of travel, or even the destination. They don't even guarantee a seat (bumping).

This is why consumer protection laws have become so important, because they cut across most of the contractual issues.

Ordinarily this isn't an issue and it doesn't really come up for consideration... there's nothing that affects the vast majority of passengers.

Will be interesting to see how this goes on a number of grounds.

 

[Danger]

EK First PEN-DXB (via SIN) for 600USD (with caveat)

So you're saying the mistake was the price? (Incidentally, my BIL paid $1600 for his ticket.) If so, at no point did EK ever argue there was a mistake in the price of the ticket.

I'm surprised they aren't asking it to be thrown out for lack of jurisdiction.

I'd have thought you would need to use Malaysian or Dubai legal systems.

The contract was formed in Australia because my BIL was in Australia when he received the confirmation emails from Expedia and from Emirates, those emails constituting acceptance of my BIL's offer. The law of electronic transactions says that a contract comes into force in the jurisdiction it is received in.

British Airways tried to argue jurisdiction in my BIL's 2015 case but were unsuccessful. Emirates has offered no argument about jurisdiction.

 

[Danger]

Yeah. It's a tricky area. This is not a new issue... going back 25 years there was a question as to the point at which a contract actually forms with the airline. Is it at check-in? Is it on actually boarding the aircraft? Or some point in between? Emirates is at least accepting that it occurs at check-in.

Back then, there was a line of thought that airline tickets are too vague to form a contract... they don't guarantee flight times, the day of travel, or even the destination. They don't even guarantee a seat (bumping).

This is why consumer protection laws have become so important, because they cut across most of the contractual issues.

Ordinarily this isn't an issue and it doesn't really come up for consideration... there's nothing that affects the vast majority of passengers.

Will be interesting to see how this goes on a number of grounds.

I'm fairly confident I could be my bottom dollar that if I as the passenger went to the Emirates and said, 'Hey, a contract doesn't actually come into force until check-in so I'm not bound by your terms until that point,' EK wouldn't have a bar of it. As I mentioned earlier, my BIL and I don't actually think EK agrees with its argument (hence the complete lack of identifying factors on its submission) because doing so would potentially create enormous ramifications for its Australian operation.

 

[MEL_Traveller]

I'm fairly confident I could be my bottom dollar that if I as the passenger went to the Emirates and said, 'Hey, a contract doesn't actually come into force until check-in so I'm not bound by your terms until that point,' EK wouldn't have a bar of it.

I can only think of one reason why a passenger would claim 'no contract'... which would be to escape cancellation or change fees. What other terms would a passenger rely on before check-in?

 

[MEL_Traveller]

So you're saying the mistake was the price? (Incidentally, my BIL paid $1600 for his ticket.) If so, at no point did EK ever argue there was a mistake in the price of the ticket.

They said the fare was erroneously routed via DXB instead of PEN-SIN non-stop.

What is your brother actually suing for? He bought a fare PEN-SIN, which on SQ tops out at RMB2645 return in business class. If EK cancelled his flight, he'd simply take the next available non-stop service on a comparable airline?

 

[RooFlyer]

They said the fare was erroneously routed via DXB instead of PEN-SIN non-stop.

Surely that's erroneous routing, not pricing? In these days of dynamic pricing how does the customer, when purchasing, know its a mistake, or seemingly very good value?

 

[MEL_Traveller]

Surely that's erroneous routing, not pricing? In these days of dynamic pricing how does the customer, when purchasing, know its a mistake, or seemingly very good value?

If you have a look at the link to Flyertalk in the first post of this thread... all the instructions and details on how to book... does that look like a simple fare that an ordinary consumer would be able to book?

I suspect a regular consumer wanting to fly SIN-PEN, a journey of 373 miles and a flight time of about an hour, is not going to be looking for flights via Dubai.

 

[RooFlyer]

If you have a look at the link to Flyertalk in the first post of this thread... all the instructions and details on how to book... does that look like a simple fare that an ordinary consumer would be able to book?

What has the simplicity or otherwise got to do whether it was a 'mistake' fare or not ... or 'mistake routing' as you put it. By way of analogy, the 'Life miles screenshot method' is a pretty complex way to get a great value redemption, but is completely legit.

FWIW, I did search that thread for 'mistake' and there were zero hits.

And as I have asked others, if you change my post when quoting it, please acknowledge that.

I suspect a regular consumer wanting to fly SIN-PEN, a journey of 373 miles and a flight time of about an hour, is not going to be looking for flights via Dubai.

Again, what have 'regular consumers' got to do with it? Its a fare, it was bookable and the bookings were accepted by the merchant and in my book that's that.

Look, I accept that the airline did not mean to sell the ticket in the format it was available in, but its really about the well-trodden path of whether so-called 'mistake fares' should be honoured or not. I say they should. You (airline) offer the product, I accept and you take my money - sold. If there are T&C buried somewhere that say sale will only be honoured if (say) +/- % of the price (say) 1 week prior, then that could be a defence. But if they say something like 'we won't honour mistakes', in my book, that's tough.

 

[MEL_Traveller]

What has the simplicity or otherwise got to do whether it was a 'mistake' fare or not ... or 'mistake routing' as you put it. By way of analogy, the 'Life miles screenshot method' is a pretty complex way to get a great value redemption, but is completely legit.

FWIW, I did search that thread for 'mistake' and there were zero hits.

And as I have asked others, if you change my post when quoting it, please acknowledge that.



Again, what have 'regular consumers' got to do with it? Its a fare, it was bookable and the bookings were accepted by the merchant and in my book that's that.

Look, I accept that the airline did not mean to sell the ticket in the format it was available in, but its really about the well-trodden path of whether so-called 'mistake fares' should be honoured or not. I say they should. You (airline) offer the product, I accept and you take my money - sold. If there are T&C buried somewhere that say sale will only be honoured if (say) +/- % of the price (say) 1 week prior, then that could be a defence. But if they say something like 'we won't honour mistakes', in my book, that's tough.

I did not change your post. I bolded the part of your post to which I was specifically replying.

it doesn't surprise me that there was no use of the word 'mistake' in the Flyertalk thread. They are pretty big about avoiding that word.

What has a 'regular consumer' go to do with it? If you have to jump through all those hoops to get the fare, I reckon it's unlikely to be purchased by an uninformed flyer. It is a more sophisticated flyer, subscribed to AFF or FT or one of the other blogs. As such, they likely know there is no F class fare PEN-DXB return for $600. They also couldn't buy the fare direct on EK's main site, only through OTAs. (Although apparently some reported you could buy it through the EK mobile site.)

The Lifemiles screenshot method is legitimate because it falls within the rules of the program which is zone based. You can only use the method to book itineraries where individual flights are available but don't show as a through itinerary.

Whether or not mistake fares should be honoured is a legal issue which is determined by the courts based on contract law. It's a tough argument to say you want parts of contract law to apply (for example offer and acceptance) but then want to set aside all the bits you don't like.

My philosophy on 'error' fares is pretty simple. Book them. Wait for the dust to settle. If it's honoured, great! if not, move on. The commotion around one particular mistake fare ultimately resulted in the DOT changing its policy on pricing errors.

 

[Danger]

I can only think of one reason why a passenger would claim 'no contract'... which would be to escape cancellation or change fees. What other terms would a passenger rely on before check-in?

Having not read all 35 pages of EK's conditions of carriage or its eight page conditions of contract and passenger notices in fine detail, escaping change and cancellation fees is the first thing that comes to my mind also. But there's some other aspects that might be worth consideration.

For example, EK (like presumably ever other carrier) doesn't guarantee flight times or durations or even that you'll ultimately fly on an EK aircraft. (Consider that for a moment: like my BIL pointed out in court, is there any other industry that takes your money up front but doesn't offer any guarantee whatsoever as to the delivery of the end service?) So suppose a month out EK downgrades from a new J aircraft to an an old J aircraft. If there's no contract at that point, as EK argues, the passenger should apparently be able to cancel the ticket without penalty, even though section 5.5.1 says EK doesn't guarantee that:

5.5.1 We will try to provide the aircraft specified in our timetable (or specified to you at the time of issue of your Ticket) for your carriage, but cannot guarantee any particular aircraft will be used. We can change the aircraft on which you will be carried, whether for operational, safety, security reasons or otherwise.

What's the bet EK says 'Sure, you're right. We know there's no contract a month from check-in. You'll have your money back tomorrow'?

They said the fare was erroneously routed via DXB instead of PEN-SIN non-stop.

What is your brother actually suing for? He bought a fare PEN-SIN, which on SQ tops out at RMB2645 return in business class. If EK cancelled his flight, he'd simply take the next available non-stop service on a comparable airline?

When did EK say it was erroneously routed via DXB? If you're referring to the email from Expedia I quoted up above, EK said in open court that wasn't the case. Contradicting its earlier paper submission from some weeks prior, the EK rep repeatedly said that my BIL's entire ticket was cancelled because, on 11 February, the flight from PEN-SIN which he was booked to travel on in April was cancelled. There was no mention in court of any erroneous routing and in none of its submissions (prior to or in court) did EK ever argue the price was an issue.

My BIL is suing for the cost of a comparable replacement ticket, less the cost refunded (about $3K at the end of the day). He bought PEN-xSIN-DXB, DXB-xSIN-PEN, with a DXB-xSIN-DXB in between, all in F. Again, the cost of a replacement ticket is exactly what he successfully sued British Airways for back in 2015.

I'm pretty sure my BIL would be happy for me to provide copies of EK's paperwork (and probably his) to anyone who wants them by email, with his personal details redacted along with the name of the EK rep.

 

[MEL_Traveller]

Having not read all 35 pages of EK's conditions of carriage or its eight page conditions of contract and passenger notices in fine detail, escaping change and cancellation fees is the first thing that comes to my mind also. But there's some other aspects that might be worth consideration.

For example, EK (like presumably ever other carrier) doesn't guarantee flight times or durations or even that you'll ultimately fly on an EK aircraft. (Consider that for a moment: like my BIL pointed out in court, is there any other industry that takes your money up front but doesn't offer any guarantee whatsoever as to the delivery of the end service?) So suppose a month out EK downgrades from a new J aircraft to an an old J aircraft. If there's no contract at that point, as EK argues, the passenger should apparently be able to cancel the ticket without penalty, even though section 5.5.1 says EK doesn't guarantee that:

What's the bet EK says 'Sure, you're right. We know there's no contract a month from check-in. You'll have your money back tomorrow'?

That's where you consumer protection laws may come in, depending on the nature of the change. But yes, plenty of cases, even on the likes of Qantas where you purchase a full-flat business class on the A330 and they substitute it with angled business class seats. They didn't even have the old product on their website anymore! I don't know if anyone requested their money back in those cases.

Emirates is claiming an executory contract. That doesn't necessarily mean there are no obligations on either party prior to the actual contract being executed. But you'd need to read up on the applicable law.

When did EK say it was erroneously routed via DXB? If you're referring to the email from Expedia I quoted up above, EK said in open court that wasn't the case. Contradicting its earlier paper submission from some weeks prior, the EK rep repeatedly said that my BIL's entire ticket was cancelled because, on 11 February, the flight from PEN-SIN which he was booked to travel on in April was cancelled. There was no mention in court of any erroneous routing and in none of its submissions (prior to or in court) did EK ever argue the price was an issue.

My BIL is suing for the cost of a comparable replacement ticket, less the cost refunded (about $3K at the end of the day). He bought PEN-xSIN-DXB, DXB-xSIN-PEN, with a DXB-xSIN-DXB in between, all in F. Again, the cost of a replacement ticket is exactly what he successfully sued British Airways for back in 2015.

I'm pretty sure my BIL would be happy for me to provide copies of EK's paperwork (and probably his) to anyone who wants them by email, with his personal details redacted along with the name of the EK rep.

Sorry I thought the reason for the cancellation was due to the error fare, as you posted the comments by expedia and the link to Flyertalk.

Regarding the schedule change, that is indeed correct. They postponed the start of the Penang service by three weeks to 1 May 2020, and after that, indefinitely.

If your brother bought the fare you linked to on Flyertalk, it was a PEN-SIN fare. This was a constructed routing via DXB, and there was no stopover in DXB.

Sounds like he bought a different fare, allowing a stopover in Dubai? And if so, the link to the FT deal was a bit confusing!

So what he's suing for is that he had a ticket to Dubai, Emirates cancelled the route entirely and offered a full refund, but he bought a replacement fare at a higher cost? If he was just going to SIN, why did he route via DXB?

 

[RooFlyer]

I did not change your post. I bolded the part of your post to which I was specifically replying.

Yep, that's the change I was talking about . Bold away by all means, but in such circumstances its conventional to add something like : (my bolding).

As to the rest, I still don't see what the 'regular consumer' has to do with it. What individual punters know or don't know, or are supposed to know, or assumed to know ... is not relevant, IMHO to whether they can, or should, be able to book what's presented in front of them and, importantly, is accepted by the booking agent and money taken.

Would the Lifemiles screenshot method be known by 'regular consumers'? I'd say certainly not - its an 'insiders technique' shared on forums like this (just like the fare in question was). So is it actually not legitimate based on your reasoning?

 

[Scr77]

Thanks for keeping the thread civil. I’m enjoying the differences of opinion and looking forward to the result of the case. Despite whether or not the original fair was taking advantage, I feel airlines do need to be held to account as they would of us.