Legal Eye: Bump me ... please

Now, it seems more and more calls are being heard for volunteers to give up their seats. Usually the airline has no problem finding volunteers, but occasionally the number of volunteers is insufficient and the airline then begins paging specific passengers to contact the gate agent.

Being 'bumped,' whether voluntarily or against your will, is governed by EC Regulation 261/2004 of the European Parliament and Council. This regulation imposes a comprehensive set of minimum obligations on all airlines traveling within, to, or out of the EU. Let's take a look at the highlights.

Denied boarding

A passenger involuntarily bumped from a flight is entitled to (i) reimbursement of the cost of the ticket or (ii) re-routing on the next available flight to his or her final destination plus care, including meals, hotel accommodation (in the event of an overnight delay) and two free phone calls plus a cash payment of up to EUR 600 (zł.2,328) depending on the length of the trip (the minimum cash payment being EUR 250 (zł.970) for flights less than 1,500 kilometers).

An airline is not required to pay compensation or provide care in the event the passenger does not have a confirmed reservation and fails to show up at check-in by the time indicated by the airline or, if no time is specified, less than 45 minutes prior to the scheduled departure time. In other words, you need to check in on time in order to receive the above compensation.

Negotiate everything

Before an airline may bump a passenger from a flight against his or her will, the airline must first seek volunteers.

A passenger willing to give up his or her seat is free to negotiate the amount and manner of compensation with the gate agent. Negotiation skills are key. In many instances an airline will agree to compensate a passenger willing to give up his or her seat voluntarily on terms better than those required by law, including the award of free round-trip tickets valid for up to one year. This is why British Airlines and Lot usually have no problem finding volunteers on their early morning or late evening flights between London and Warsaw.

Delayed flight

Flights delayed more than two hours (but less than five) obligate the airline to provide each passenger with free meals plus two free phone calls, faxes or e-mails. If a flight is delayed more than five hours a passenger may demand a refund of the cost of the ticket, as well as a return flight to his or her original point of departure.

Finally, if the flight is delayed until the next day each passenger must be provided with free hotel accommodation, along with transport to and from the hotel.

The bad news

EC Regulation 261/2004 does not apply if the delay or cancellation is due to an "extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken." An airline is not required to compensate passengers for any delay or cancellation attributable to bad weather, security precautions and even labor strikes.

Death or injury

An airline has strict liability for up to the first EUR 135,000 (zł.523,800) in the event of death or injury to a passenger. This means that the airline may not offer a defense. Liability in excess of this threshold is "presumed to be that of the airline," however, an airline may defend itself against such claims if the cause of the accident was not due to the fault of the airline.

Paul Fogo is a senior attorney with Miller, Canfield, Babicki & Partners. fogo@pl.millercanfield.com