My brother-in-law sued Emirates

[MEL_Traveller]

Somehow I think you'd still need to take EK to court if you wanted to avail yourself of that 1975 case, the case that, in my opinion, was decided the way it was because the terms of a contract were presented to the passenger together with the ticket, not in advance as they are today.

But has the law changed?

(samh004... I think the word you might have been looking for is 'serial' )

 

[Anna]

What court was your BIL's case against BA decided in?

 

[moa999]

Is the BIL a lawyer? (ie. The cases only costing him time (and opportunity cost) rather than real $s)

 

[sudoer]

The cases only costing him time (and opportunity cost) rather than real $s

It could also be seen as generating opportunities if he is repeatedly successful at taking airlines to court.

 

[Danger]

But has the law changed?

(samh004... I think the word you might have been looking for is 'serial' )

My BIL and I believe it has. First, though, my BIL argued MacRobertson isn't relevant because, in our opinion, that case turned on the fact that in that matter passengers didn't have prior opportunity to review the terms of a contract. Even today, a person can't be bound by the terms of a contract they haven't had the opportunity to review. This week, for example, I requested and received a refund from BP after I purchased two car wash vouchers. The voucher, received after payment (and therefore after the contract had been formed) said "Valid for 30 days". However, that 30-day validity wasn't advised prior to the transaction, either verbally or in the advertisement (invitation to treat) at the counter. I can't be bound by a term I wasn't aware of prior to entering into the contract.

Second, MacRobertson seems to have been a case about when stamp duty is payable.

Third, my BIL said this in court:

The ruling in MacRobertson was brought into the modern ticketing world in the 2012 High Court case of Commissioner of Taxation v Qantas Airways [2012] HCA 41. Paragraph 42 of that ruling affirmed that a contract between a passenger and an airline does indeed exist when payment is made, Justice Heydon noting:

The transaction was a contract of carriage by air – a conditional contract in numerous respects, but still a contract of carriage by air [added emphasis].​

What court was your BIL's case against BA decided in?

The Magistrates Court of Western Australia.

Is the BIL a lawyer? (ie. The cases only costing him time (and opportunity cost) rather than real $s)

No, he's not a lawyer. Emirates sought leave to be legally represented but my brother successfully argued that's not appropriate.

It could also be seen as generating opportunities if he is repeatedly successful at taking airlines to court.

I'm not two cases in five years justifies a claim of "repeatedly".

 

[Ansett]

I think it is a brave and amazing thing to be doing, standing up for ones rights and quite frankly there should be more of it. Most terms and conditions are used to bully customers in to doing as told by the business and or airline and are heavily skewed in their favor Keep up the good work. .

 

[MEL_Traveller]

My BIL and I believe it has.

I think that's right. The current law appears to be that of the Commissioner of Taxation v Qantas. There is a nice summary here: Why airlines can refuse to fly passengers | Lexology

 

[MEL_Traveller]

I think it is a brave and amazing thing to be doing, standing up for ones rights and quite frankly there should be more of it. Most terms and conditions are used to bully customers in to doing as told by the business and or airline and are heavily skewed in their favor Keep up the good work. .

So if we assume a contract is in existence, what rights does the passenger have? Three things in the event of a cancellation:

9.2.2(a) Remedy One - we will carry you and your Baggage as soon as we can on another of our flights on which space is available and, where necessary, extend the period of validity of your Ticket to cover that carriage.​

9.2.2(b) Remedy Two - we will re-route you and your Baggage within a reasonable period of time to the destination shown on your Ticket on another of our flights or on the flight of another airline, or by other mutually agreed means and class of carriage. We will also refund you any difference between the fare, taxes, fees, charges and surcharges paid for your carriage and any lower fare, taxes, fees, charges and surcharges applicable to your revised carriage.​

9.2.2(c) Remedy Three - we will give you an involuntary refund in accordance with Article 10.2.​

Remedy one is not possible because there are no longer flights between PEN and SIN operated by EK.

Remedy two would likely have meant a re-route to SIN (the destination shown on the ticket) on SQ business class, the highest class available for that route. The cost of the SQ flight is actually lower than the EK ticket. So a small refund may have been due.

Remedy three is what the OP's BIL was given.

 

[Danger]

I think it is a brave and amazing thing to be doing, standing up for ones rights and quite frankly there should be more of it. Most terms and conditions are used to bully customers in to doing as told by the business and or airline and are heavily skewed in their favor Keep up the good work. .

This is entirely the reason my BIL has taken the action. I guess it's essentially a single man protest against a global business who holds all the cards and has no issue holding you to account when choose July instead of June or transpose your name or anything else the airline can rectify in seconds without the exertion of even a modicum of energy.

I think that's right. The current law appears to be that of the Commissioner of Taxation v Qantas. There is a nice summary here: Why airlines can refuse to fly passengers | Lexology

That's behind a paywall for me but I'd be interested to read it if there's a public version. Or, if you have access to it, perhaps you could post some relevant parts.

So if we assume a contract is in existence, what rights does the passenger have? Three things in the event of a cancellation:

9.2.2(a) Remedy One - we will carry you and your Baggage as soon as we can on another of our flights on which space is available and, where necessary, extend the period of validity of your Ticket to cover that carriage.​

9.2.2(b) Remedy Two - we will re-route you and your Baggage within a reasonable period of time to the destination shown on your Ticket on another of our flights or on the flight of another airline, or by other mutually agreed means and class of carriage. We will also refund you any difference between the fare, taxes, fees, charges and surcharges paid for your carriage and any lower fare, taxes, fees, charges and surcharges applicable to your revised carriage.​

9.2.2(c) Remedy Three - we will give you an involuntary refund in accordance with Article 10.2.​

Remedy one is not possible because there are no longer flights between PEN and SIN operated by EK.

Remedy two would likely have meant a re-route to SIN (the destination shown on the ticket) on SQ business class, the highest class available for that route. The cost of the SQ flight is actually lower than the EK ticket. So a small refund may have been due.

Remedy three is what the OP's BIL was given.

My BIL has very much argued he should have been able to avail himself of s. 9.2.2(b). Section 9.2 says "You will be entitled to choose ..." and "The three available remedies for you to choose from ..." (my emphasis). He wasn't given that right. When my BIL brought this up in court, he felt that the EK rep was scratching for a response somewhat as his reply was 'Expedia didn't offer that to you. It was your responsibility as the passenger to ensure you were given those options'. Two points. First, if there's no contract, as EK has repeatedly argued (contradictorily), whether he asked Expedia or not shouldn't be an issue, which is to say, EK's response should have been 'There was no contract. Section 9.2 - and every other section - doesn't apply'. Again, bizarre. Two, while he might have booked through Expedia, his legal contract (there's that word again) is with Emirates because that's who charged his credit card. Indeed, at no point throughout the proceedings did EK say 'Not our issue. Talk to Expedia'.

So, yes. Section 9.2.2(b) would have allowed him to re-route on SQ or possibly begin his journey in KUL instead.

Finally, one can't help but scratch their head in trying to reconcile the "involuntary" refund in s. 9.2.2(c) with "you will be entitled to choose" and the remedies are "for you to choose". How does one "choose" an "involuntary refund"?

 

[muppet]

.....

Finally, one can't help but scratch their head in trying to reconcile the "involuntary" refund in s. 9.2.2(c) with "you will be entitled to choose" and the remedies are "for you to choose". How does one "choose" an "involuntary refund"?

I believe in this case an "involuntary refund" means you are exempt from cancellation fees or non-refundable fare conditions etc.

 

[MEL_Traveller]

So, yes. Section 9.2.2(b) would have allowed him to re-route on SQ or possibly begin his journey in KUL instead.

9.2.2 (b) however is 'mutually agreed'. As EK doesn't fly to PEN, the option to leave from KUL would have to be agreed by both your BIL and EK. If EK doesn't agree, there's no action for your brother to enforce.

A re-route to SIN is pretty much irrelevant here because the cost of the fare PEN-SIN is cheaper than the price yuor BIL paid. He paid $1600. The fare PEN-SIN return business class is $524. So he is in front $1100.

As muppet points out, an 'involuntary refund' is one where the passenger hasn't caused or initiated the event which ultimately leads to the availability of a refund.

 

[Danger]

9.2.2 (b) however is 'mutually agreed'. As EK doesn't fly to PEN, the option to leave from KUL would have to be agreed by both your BIL and EK. If EK doesn't agree, there's no action for your brother to enforce.

A re-route to SIN is pretty much irrelevant here because the cost of the fare PEN-SIN is cheaper than the price yuor BIL paid. He paid $1600. The fare PEN-SIN return business class is $524. So he is in front $1100.

As muppet points out, an 'involuntary refund' is one where the passenger hasn't caused or initiated the event which ultimately leads to the availability of a refund.

"Mutually agreed" and 'you choose'. More contradictions.

My BIL's ticket took him Penang to Singapore to Dubai to Singapore to Dubai to Singapore to Penang. At the very least, s. 9.2.2 should have got him close to that. If that meant the first and last sectors were on SQ, that may well have suited him. I do, accept, however, that "destination" under s. 9.2.2 might well be interpreted as SIN.

Emirates now doesn't fly PEN-SIN-PEN, but that wasn't the case when his ticket was cancelled on 11 February, despite what the EK rep said under oath.

 

[MEL_Traveller]

"Mutually agreed" and 'you choose'. More contradictions.

My BIL's ticket took him Penang to Singapore to Dubai to Singapore to Dubai to Singapore to Penang. At the very least, s. 9.2.2 should have got him close to that. If that meant the first and last sectors were on SQ, that may well have suited him. I do, accept, however, that "destination" under s. 9.2.2 might well be interpreted as SIN.

Emirates now doesn't fly PEN-SIN-PEN, but that wasn't the case when his ticket was cancelled on 11 February, despite what the EK rep said under oath.

His ticket was cancelled on 11 February, but you stated he was due to fly in April. At no time had EK commenced flights to PEN, so the option to route on another EK flight ex PEN simply wasn't an option.

If you are going to argue there is a contract, that contract states EK's obligation is to deliver the passenger to 'a stopover destination' or 'final destination'. Did the ticket have a stopover in Dubai, or was it a transit?

Strange about the paywall... there isn't one from my end. You can try googling the following: Why airlines can refuse to fly passengers by Anthony J Cordato. That should bring up a link.

​

 

[Danger]

His ticket was cancelled on 11 February, but you stated he was due to fly in April. At no time had EK commenced flights to PEN, so the option to route on another EK flight ex PEN simply wasn't an option.

I guess I was looking at from the perspective of the there being no contractual issue with the ticket. If on 11 February when EK allegedly cancelled my BIL's April PEN-SIN, s. 9.2.2 seemingly should have given rise to some options, such as SQ on the PEN-SIN sector alone or perhaps changing the date of departure to still fly on EK. I'm not that in court EK argued the PEN-SIN route was cancelled in totality on 11 February. I think it was just my BIL's departure in April (20 April, to be precise).

I'd really love to be able to prove that on 11 February, EK349 PEN-SIN on 20 April was not cancelled as the EK rep said under oath.

If you are going to argue there is a contract, that contract states EK's obligation is to deliver the passenger to 'a stopover destination' or 'final destination'. Did the ticket have a stopover in Dubai, or was it a transit?

Approximately 22 hours in Dubai on both entries. Again, I agree that there's a strong argument to be made by EK that the contract (!) was also for transport PEN-SIN (albeit in F). Of course, EK didn't argue that.

Strange about the paywall... there isn't one from my end. You can try googling the following: Why airlines can refuse to fly passengers by Anthony J Cordato. That should bring up a link.

Got it: https://www.travellawquarterly.co.uk/wp-content/uploads/journals/2012_tlq_issue_4_cordato_o.pdf.

 

[MEL_Traveller]

I guess I was looking at from the perspective of the there being no contractual issue with the ticket. If on 11 February when EK allegedly cancelled my BIL's April PEN-SIN, s. 9.2.2 seemingly should have given rise to some options, such as SQ on the PEN-SIN sector alone or perhaps changing the date of departure to still fly on EK. I'm not that in court EK argued the PEN-SIN route was cancelled in totality on 11 February. I think it was just my BIL's departure in April (20 April, to be precise).

I'd really love to be able to prove that on 11 February, EK349 PEN-SIN on 20 April was not cancelled as the EK rep said under oath.



Approximately 22 hours in Dubai on both entries. Again, I agree that there's a strong argument to be made by EK that the contract (!) was also for transport PEN-SIN (albeit in F). Of course, EK didn't argue that.



Got it: https://www.travellawquarterly.co.uk/wp-content/uploads/journals/2012_tlq_issue_4_cordato_o.pdf.

That is a version of it... there was another one written in a more generalist way.

The initial cancellation was on the grounds of an erroneous routing. So EK at that stage would have been looking to void the contract in its entirely (based on mistake). Refund would have been the option.

Subsequently, the route was cancelled outright.

So even if someone argued successfully it was not a mistake, and the contract stands, by the time you would have got around to looking at the remedies, EK's flight would not have been operating. That would have left a re-route on SQ, or a full refund. As the refund far exceeds the cost of a new fare PEN-SIN, I think most people would have taken the refund?

On the 22 hour stopover in Dubai... if I understand correctly, because of the way the ticket was constructed, your BIL technically had no right to enjoyment of that stop. The ticket coupon was SIN-xDXB-PEN, where 'x' is transit only. Had EK introduced a schedule change so that the transit became only 2 hours, he would not have had any rights to have the ticket reissued with a stopover in Dubai.

 

[Danger]

That is a version of it... there was another one written in a more generalist way.

The initial cancellation was on the grounds of an erroneous routing. So EK at that stage would have been looking to void the contract in its entirely (based on mistake). Refund would have been the option.

Well EK certainly cancelled the ticket because of what it said, through Expedia, was an erroneous routing but for whatever reason that's not the line that was taken in court. Error, though, requires proving the three elements. Airlines rely on passengers being slapped in the face and taking it.

FlyerTalk had a report about three weeks ago of a Canadian who successfully sued BA over a so called mistake fare.

...

So even if someone argued successfully it was not a mistake, and the contract stands, by the time you would have got around to looking at the remedies, EK's flight would not have been operating. That would have left a re-route on SQ, or a full refund. As the refund far exceeds the cost of a new fare PEN-SIN, I think most people would have taken the refund?

I think the law focuses on the circumstances when the event happened, not what transpired after. Emirates, for example, spent a lot of time arguing that covid meant my BIL wouldn't have been able to fly anyway, even if the ticket wasn't cancelled, so it doesn't matter that it was cancelled. That's a complicated bullshit argument. As my BIL said in court, that's like absolving someone of murder because it's later learned that the person killed had a terminal illness and was going to die anyway.

On the 22 hour stopover in Dubai... if I understand correctly, because of the way the ticket was constructed, your BIL technically had no right to enjoyment of that stop. The ticket coupon was SIN-xDXB-PEN, where 'x' is transit only. Had EK introduced a schedule change so that the transit became only 2 hours, he would not have had any rights to have the ticket reissued with a stopover in Dubai.

I think there must have been more to my BIL's ticket than just a simple PEN-SIN-PEN as EK supposedly intended. He paid almost $2400 Australian. That's almost $800 an hour. If you ask me, that's the mistake.

 

[sudoer]

On the 22 hour stopover in Dubai... if I understand correctly, because of the way the ticket was constructed, your BIL technically had no right to enjoyment of that stop. The ticket coupon was SIN-xDXB-PEN, where 'x' is transit only. Had EK introduced a schedule change so that the transit became only 2 hours, he would not have had any rights to have the ticket reissued with a stopover in Dubai.

I think there must have been more to my BIL's ticket than just a simple PEN-SIN-PEN as EK supposedly intended. He paid almost $2400 Australian. That's almost $800 an hour. If you ask me, that's the mistake.

I don't think there was any way to book this other than with DXB as a transit - this is how my booking appeared on the EK website before it was cancelled.



Also not sure how he paid $2.4k. The fare was around $1300 AUD per person.

 

[MEL_Traveller]

Well EK certainly cancelled the ticket because of what it said, through Expedia, was an erroneous routing but for whatever reason that's not the line that was taken in court. Error, though, requires proving the three elements. Airlines rely on passengers being slapped in the face and taking it.

FlyerTalk had a report about three weeks ago of a Canadian who successfully sued BA over a so called mistake fare.



I think the law focuses on the circumstances when the event happened, not what transpired after. Emirates, for example, spent a lot of time arguing that covid meant my BIL wouldn't have been able to fly anyway, even if the ticket wasn't cancelled, so it doesn't matter that it was cancelled. That's a complicated bullshit argument. As my BIL said in court, that's like absolving someone of murder because it's later learned that the person killed had a terminal illness and was going to die anyway.



I think there must have been more to my BIL's ticket than just a simple PEN-SIN-PEN as EK supposedly intended. He paid almost $2400 Australian. That's almost $800 an hour. If you ask me, that's the mistake.

The law can't always focus on the circumstances when the event happened, because the breach may not be actioned until some time later. EK cancelled on 11 February, on what date did your BIL look for his options under the contract? If EK cancelled the flight on 11 February, but your BIL didn't ask to be rebooked until March, that could make all the difference to the available remedies.

The $2400 does seem inconsistent with the fare you linked to Flyertalk. Those fares were either USD600 or USD900 depending n the class of travel for the short sectors (Y vs F).

Yeah, there will be some cases where people successfully sue over a mistake fare. The circumstances of the BA one you mentioned were quite unique in that the passenger called the airline to confirm the ticket. That's not a usual action in error fares (for obvious reasons).

Sounds like EK has messed this one up big time. Should have been fairly straightforward for them.

 

[Danger]

I don't think there was any way to book this other than with DXB as a transit - this is how my booking appeared on the EK website before it was cancelled.

View attachment 237082

Also not sure how he paid $2.4k. The fare was around $1300 AUD per person.

Maybe he paid extra for longer transits in DXB or a higher fare class with a lower cancellation penalty (the cancellation penalty that doesn't apply to both parties) but it was definitely USD1600.

The law can't always focus on the circumstances when the event happened, because the breach may not be actioned until some time later. EK cancelled on 11 February, on what date did your BIL look for his options under the contract? If EK cancelled the flight on 11 February, but your BIL didn't ask to be rebooked until March, that could make all the difference to the available remedies.

The $2400 does seem inconsistent with the fare you linked to Flyertalk. Those fares were either USD600 or USD900 depending n the class of travel for the short sectors (Y vs F).

Yeah, there will be some cases where people successfully sue over a mistake fare. The circumstances of the BA one you mentioned were quite unique in that the passenger called the airline to confirm the ticket. That's not a usual action in error fares (for obvious reasons).

Sounds like EK has messed this one up big time. Should have been fairly straightforward for them.

I would argue strongly that what's relevant is the state of affairs the day the breach occurred which in this case is 11 February. That to me is when the breach was "actioned".

 

[MEL_Traveller]

I would argue strongly that what's relevant is the state of affairs the day the breach occurred which in this case is 11 February. That to me is when the breach was "actioned".

On which day did your BIL contact either Expedia or Emirates and indicate he did not accept the refund and wished to have one of the options under 9.2? (either next service, a re-route, or refund)?