QLD Emirates Airline - Consumer Rights for Overselling Flight?

Discussion in 'Australian Consumer Law Forum' started by Minky, 30 December 2016.

  1. Minky

    Minky Active Member

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    Hi, I am seeking any help regarding my Australian Consumer Law rights, or lack thereof, with regard to 'over booking' or 'bumping' of passengers on Emirates Airlines.

    My father bought tickets in Australia for both of us to Accra, via Dubai. On the way back, we stopped in Dubai overnight to break the journey. We arose early the next day to get to the airport, booked to fly from Dubai - Brisbane. After standing in line for over 2 hours, we were finally told that the plane was over booked and we would not be getting on that flight.

    The check-in staff explained that they were not happy in having to tell booked passengers this since it was a 'common occurrence'. After being ushered to another line to speak with a more senior staff member, he arrived an hour later and explained that there was 'nothing' he could do. Then we were offered 'tickets' in order to render us voluntary bumpees. We refused this offer. Having been standing in line for many hours, neither of us was familiar with our rights and were not very happy at this stage.

    Also, there were various stipulations on the ticket vouchers which we were ambiguous. Besides, neither of us had any desire to do further air travel within the next 12 months, which was a provision of the ticket vouchers offered, and we were both very stressed and fatigued. Indeed, my father is 78 years old, and in my view, their bumping of him at least, constituted an 'unsafe situation', and was possibly negligent too. He was pissed off, and I more so, given they bumped him.

    Keep in mind, neither of us was rude to the staff; they were just front people for managerial nonsense. How it is considered wise, prudent, just and lawful to bump the elderly involuntarily is incomprehensible. It should be illegal too!

    We were subsequently put up in a hotel overnight, with meal vouchers. However, it took us a further 20 minutes to collect the taxi vouchers to the hotel, and once we arrived there, it took 20 minutes to check-in owing to '20 other passengers' also bumped from that flight. The entire day was wasted. We were both exhausted.

    The next day, we got to the airport even earlier to ensure we got on the requisite flight. At check-in, I asked to confirm my other booking with Emirates, from Brisbane - Auckland which was later that same day. I was then told I had been bumped from that flight too! Bumped from Emirates twice in two days!

    By now, neither my father or I were very happy to say the least. Indeed, we were both very stressed and further exhausted having been shuffled around like cattle. As a result of the second bumping, I missed my connection with Air New Zealand from Auckland - Gisborne (non-refundable). This meant I had to stay in Australia, and having missed my flight to NZ, it created a domino effect impacting others' travel plans back home creating even more stress.

    Since I had been bumped by Emirates twice in two days, I, like any other reasonable person, now had no faith that Emirates could deliver anything other than more of the same: crap. Once bitten twice shy? Why would I give them the opportunity to possibly bump me for a third time? Accordingly, I booked a new ticket with Air New Zealand from the Gold Coast - Auckland - Gisborne, at a cost of $630.

    Once I got home, my father sought to get compensation from Emirates due to the involuntary bumping on both of our behalf's. He soon discovered, that it is 'impossible' to speak to a human being from Emirates with regards complaints and compensation. Eventually, he had his travel agent in Australia send a letter to Emirates on his behalf.

    After many weeks of no response, Emirates then sent a reply, but for some reason or lack thereof, they sent it to my older brother's email address. One presumes because he had flown Emirates in the past. My brother forwarded this response to my father and me.

    Emirates denied any liability, offered no apology, and instead said they would extend to my father Emirates skyward points which amounted to $80. They went on to say - in lieu of me having been bumped twice and now $630 out of pocket - that they would also extend to me the same amount of skyward points, 'if' I was prepared to sign up with their program!

    If that is not rubbing salt in the would then I do not know what is. To say their actions were insulting is being generous to say the least.

    Since all this has happened, and nowhere to turn for help in terms of any consumer protections, I find myself here. Both my father and I have spent countless hours trying to seek some reasonable redress, to no avail.

    We've also both been reading about alleged consumer protection with regard to Australian Consumer Law, the Warsaw convention and the Montreal convention.

    It seems crazy that there seems to be no way whatsoever to get what we are entitled to. The laws seem ambiguous and there are elements of jurisdiction issues with regard to Dubai. Can they conduct themselves like that with impunity? Are there no laws which can address their flippant actions?

    There also seems like there is no avenue to seek damages in lieu of all the stress they have caused both of us, over many months now. It is as though any and all laws governing the aviation industry are geared toward the airlines and do not offer adequate protections for consumers. Certainly this appears to be the case in Australia and NZ, for I note that in the EU and North America, they have charters which stipulate clearly what an airlines liability is with regard to bumping passengers involuntarily. And how many airlines would consider it even remotely reasonable to bump the elderly?

    As such, though I am not well versed in the law, Emirates actions and lack thereof 'could' be deemed to have been, negligent, lacking a duty of care, misrepresentative and a breach of contract. Surely, if any reasonable person was aware of the 'extent' and 'frequency' with which they over book flights and bump passengers (including elderly passengers), and were clearly aware of the impossible nature of seeking redress should they be bumped, then there is a better than good chance such a person would book a ticket with another more reputable airline rather than being placed in harms way with Emirates?

    This whole fiasco has caused immense stress for both of us. It's as though this corporation is happy to take your money, but when you seek compensation, they become invisible. Furthermore, why is it so difficult to gain any kind of equity with regard to alleged consumer protections? Are there any? Or does Emirates legal funding budget prohibit any kind of redress for their victims?

    Given the nature of Emirates clear and obvious breach's in lieu of 'common sense', and contractual obligations, they should not be allowed to conduct business in Australia or NZ if this is how they carry on.

    David and Goliath? Yes, it seems like that.

    To be sure, both my father and I have flown on at least 50 different airlines each, to all parts of the world and never had any problem like this.

    I would be grateful if those here who are legally trained or otherwise could provide some advice regards what we can do; not just in terms of us seeking compensation, but perhaps also damages. They should not be allowed to do this to other passengers! There must be laws which govern this kind of thing? For I think most any reasonable person, or judge for that matter, in having ascertained the facts of this case, would conclude that Emirates actions were despicable irrespective of the provisions of the Warsaw and Montreal convention which appear to limit an airlines liability in terms of damages. We will consider legal action if it is worthwhile.

    Thank you peeps and apologies for the length.

    ;)
     
  2. Lance

    Lance Well-Known Member

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    Hi,

    As much as this was a massive inconvenience, its a fairly common practice by airlines. If you go to their website you will find terms and conditions "conditions of Carriage for Passengers and Baggage" that allow the airline to reallocate your bookings at their discretion. Its covered in section 9.3 of the following document. https://cdn.ek.aero/au/english/images/english_final10may2012_tcm276-194795.pdf

    They are required to offer compensation which I believe they did. I'm sorry for your trouble but as I said its fairly common.
     
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  3. Minky

    Minky Active Member

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    Edit: I have had to break up my post into several sections due to a 10K word limit per post.

    Firstly, 'thank you' for your response, Lance. While I appreciate your having responded, I think you've not quite grasped the facts of this case. I think if you had the inclination, you would see clearly that they are liable and the provisions of the Warsaw convention and the Montreal convention apply to them.

    Remember, I was bumped not once, but twice. The first bumping, yes, we were offered 'ticket vouchers', which we declined for the reasons stated and reiterated below. When I was bumped for the second time(Brisbane - Auckland), this caused me to miss another connection in NZ. However, having been bumped twice in two days, I had had enough of Emirates. I do not consider(nor I would contend most other people would consider) my aversion to further travel with them at that point was at all unreasonable. They were hopeless. Therefore, if they had intended on flying me from Brisbane - Auckland the next day, well, they had bumped me twice, maybe they'd bump me again?

    Who knows, all I know was that I had been put through enough stress by two bumpings and now had no faith what so ever that they could get me on the flights which were booked well in advance. Therefore, having had enough, I booked a new ticket with Air New Zealand.

    Since it was Emirates which caused my lost connection, their own 'conditions' clearly state that I am due a refund for both flights. And yet, nothing has been forthcoming, but for their insulting suggestion that I join their program(why would I want to do that after what they had done?) so I could recieve $80 worth of Sky ward points?

    Let me say that what happened to us is not such a common practice with most other airlines. At least not in either my fathers or my experience as seasoned travelers. As said, we have both flown around the world to numerous destinations and on a range of different airlines, from the best to the worst, and never been bumped. Literally on over 50 different airlines and many more countries.

    In any event, the 'standard practice' for other more reputable airlines - in the case of bumping - is for them to seek 'voluntary bumpees'. The airlines will offer inducements to passengers so that should a passenger 'choose' to be bumped voluntarily, 'every one is happy'. That approach makes perfect sense. When passengers are bumped 'involuntarily', naturally, this can lead to a 'domino effect' in that those passengers in so 'needing' to get to a destination for one reason or another, and at a 'specific time', may miss connections or other important appointments such as a wedding for example.

    Furthermore, if Emirates had 'clearly' explained to us or any other prospective passenger that involuntary 'denial of boarding' due to 'over booking' was 'common practice'(rather than rare) for this airline, then such people would be much more inclined to book and fly with another airline, irrespective of the fine print. For I reiterate, the check in staff at Dubai airport, explained that, 'over booking and subsequent bumping' was a 'common occurrence' with Emirates, and they too, were not happy about that. The 'fact' that 'over 20 people' were bumped off the same, Dubai - Brisbane flight attests to this.

    It also 'seems' like this is a 'policy' of theirs to maximize profits rather than them simply having over booked 'a few seats' to allow for 'no shows'. However in considering that, if people book and pay for a seat, and then do not show up(for no good reason), how can the airline lose money?

    Surely, if there are no shows, and then the airline sells those empty seats, they've profited twice for the same seats? And then on the other hand, they can involuntarily bump passengers who have booked seats months in advance, and offer no compensation. WTF.

    For I simply contend, that if you wish to fly to London for example, and book a ticket for the 22nd(for a wedding or business appointment or to make connections etc), there's an 'expectation' in lieu of basic contractual considerations that the 'booking' amounts to a seat on a specific aircraft for a specific day, unless of course there is a force majeure, or something beyond the control of the airline; perhaps an earthquake, or weather issue, or mechanical failure.

    If a person booking a ticket thought there was a 'reasonable chance' they could be bumped involuntarily, and also not gain compensation in lieu of that, then they would probably choose another airline. No? Indeed, I say again, I was not bumped once, I was bumped twice by Emirates within two days! Was that a rare occurrence, or would it indicate some commonality? Perhaps bad luck? No, not bad luck, it was indicative of their 'over booking policy'.

    Accordingly, I'd suggest Emirates 'policy' could constitute 'misrepresentation' and 'breach of contract', in that most ordinary people in so booking a ticket to fly to a destination, would have an 'reasonable expectation' that they would fly on that day and get to where they are going at the appointed time.

    And I do not have the documentation in front of me, but indeed there is fine print, on the ticket or similar, which stated that there is a 'slight chance'(or words to that effect) that passengers might be denied boarding, 'perhaps' due to 'over booking', as opposed to say a force majeure. How could I then be bumped twice in two days if that were credible? Exceedingly bad luck?

    When an airline is 'commonly and involuntarily' bumping passengers, they should be liable to pay compensation, whether through their own compensation scheme and/or via the Warsaw convention and Montreal convention both of which Emirates has signed up to and is therefore subject to.

    The provisions in both of those conventions are reasonably clear with regard to 'delays', or 'involuntary bumping' in lieu of liability and compensation. Otherwise, why would they sign up for either convention? Those conventions either carry weight, or they do not.

    Interesting too that Emirates is quite at ease in providing for compensation for 'denied boarding' for those in North America and the EU; because they have to by unambiguous law. No doubt the regulators there insisted that consumers are offered protections against the mammoth corporations which might otherwise take advantage.

    In the example of North America and the EU, people are given 'refunds' of the tickets themselves, and flown to their original destination if they are bumped involuntarily. Voluntary bumpees are also still given good compensation for their choice, otherwise, they'd not do it.

    You see, when 'we' were bumped in Dubai, we were offered 'vouchers' for tickets. As stated, we were both, understandably exhausted, having risen early and spent over 3 hours waiting in lines at the airport. There were various conditions on these vouchers with regard to times, and destinations. More fine print! We were in no mood to accept that which we did not understand. We did not know what rights we had since we'd never been in that situation before.

    Besides, if we(or any one else for that matter) 'did not wish' to fly, ever again, or within the 12 months stipulated on those vouchers, those ticket vouchers could hardly be considered, compensation, could they? I myself, despite much travel by air, am pretty much 'over it', and my father, now 79 years old, is even more, over it. While some may find that convenient, that is the truth.

    Moreover, no airline should be involuntarily bumping the elderly. Is that not 'common sense', or am I mistaken in assuming that they have a 'duty of care' toward passengers? Surely, they should seek people who wish to 'volunteer'(the young, or willing) lest Emirates create an 'unsafe' situation as was the case when they bumped my father who was 78 years old? Do you think other airlines have policies in place whereby they select the young and willing as a matter of discharging their duty of care? Me thinks so.
     
  4. Minky

    Minky Active Member

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    I've already spent 'many hours' in the preceding months reading and researching various sources of information including the 'Conditions of carriage' as contained in the link you've provided. I note that in their own conditions of carriage, we are due a refund and compensation of some kind. Indeed, as per other 'laws' and 'conventions' which are in contravention of their conditions of carriage, they may well me liable for damages too.

    And regardless of the 'fact' that we are due compensation, thus far it has been 'impossible' to get it, or to 'speak' to someone who can comprehend basic facts. This too, is, I believe, just part of their 'corporate strategy'; if customers can be made to experience immense difficulty, frustration and stress in getting what is legally owed to them in lieu of Emirates own 'conditions of carriage' and any other applicable laws, then those people are much more inclined to just accept that they have been ripped off and move on.

    And while this apparent policy will hurt Emirates in the longer term, it is an example of how corporations can get away with so much which is immoral, and the consumer may have little recourse owing to the sheer amount of time and energy which must be dedicated to getting a fair go. And this does not even take into consideration more time, stress and money if legal action is taken against them.

    Here I'll put some portions of the applicable Emirates 'conditions of carriage' as per the link you have provided, Lance, which I'd read prior, and which I include here again for clarity. Note that italics and underlining are mine which I hope will further make clear our position.

    https://cdn.ek.aero/nz/english/images/english_final10may2012_tcm278-194795.pdf

    (Here we see that Emirates themselves make mention of 'laws' which apply to the contract of carriage. Such a law would be contract law; misrepresentation for example.)

    (They state this, and yet, they refuse to abide by what they say.)

    (Really?)

    (They are mistaken in this in that they are liable via other laws and the conventions they are party to.)


    (Yeah, I had a connecting flight which I missed, and yet, they refuse to refund me.)

     
  5. Minky

    Minky Active Member

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    Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 - Warsaw Convention 1929

    The above link is the Warsaw Convention; I will copy and paste the applicable sections below:

    So there's some legal basis to our claims. Legally speaking, it would seem there are many issues and angles which could be explored in a court of law, perhaps such that Emirates are held accountable for all their actions and lack thereof and are directed to pay applicable refunds and damages which are commensurate with the harm they have inflicted. As you might guess, this post alone has taken hours. Yes, maybe it's all for nothing and the corporations power, wealth, reach and influence will render any and all possible claims void on that basis alone. But there are sound principles at stake too and it is my hope that redress can be had.

    If it is possible, I will come back to this post at a later date and add some additional material in relation to the Montreal convention, or similar so as to further illustrate the facts and the liability of Emirates in respect of them in relation to the applicable laws.

    I would welcome further feedback by legal professionals or otherwise and thank you in advance; that is to say if you can further forgive me for the length; if it is tedious, I apologize for that. It's just that I found it necessary, to make our case as clearly as possible.

    Thanks peeps and have a nice day.
     
  6. Rod

    Rod Well-Known Member

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    You appear to know what you are doing.

    Send Emirates a demand letter stating what compensation you are seeking and give them 30 days to respond else you will take them to court.
     
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  7. Lance

    Lance Well-Known Member

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    Hi Minky,

    I definitely agree that you should purse it. The following journal article might also give some guidance for your letter of demand: Atherton, Trudie-Ann; Atherton, Trevor C --- "The Legalities of Overbooking, Overcrowding, Delay and Disappointment: Lessons for the Sydney 2000 Olympics" [1999] UNSWLawJl 33; (1999) 22(3) University of New South Wales Law Journal 858

    It mentions that while domestic tickets may not amount to a contract an international flight may be viewed differently. Good luck. Please let us know how you go with the letter of demand.
     
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  8. Minky

    Minky Active Member

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    Thank you very much, Rod, that is helpful and we will consider the letter of demand, but perhaps only after speaking with a lawyer (I am assuming you are not one, but if you are, apologies).

    Lance, thank you too, again. The link you have provided is very interesting and provides some clarity in a range of area's with regard to various aspects of the law and how it may be applied. Indeed, I neglected also to mention, 'fraud' in my posts above, but it was on my mind and the document you have linked to also specifies when that term may or may not apply.

    Good stuff peeps. ;)
     
  9. Minky

    Minky Active Member

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    Can an administrator please send me a PM. I am trying to post a reply to this thread and am getting an error message which prevents that. Thank you.
     
  10. Clancy

    Clancy Well-Known Member

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    You mean to say you 'do' have some rights verses the airline? That's nice, I always thought airlines were above the law, can do whatever they want, and only give compensation by choice, not because they 'have to'
     
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