Goldorak

Thank you guys. I learned something today thanks to you ^

For sure.

It is clearly written on the e-ticket/booking summary doc emitted by AF that each segment must be flown and in the right order, otherwise the ticket can be cancelled.

CGRA

Yes all PAX read them very carefully )

orbitmic

They don't but they should. Airlines are not in the business of spoon-feeding passengers the T&C. AF could not have warned the OP they would cancel the return because they probably did not realise that the OP was just going to walk out and give up the outbound.

I think that the one important message was for the AF agents who were there when the OP was told that he couldn't fly was to tell the OP to go to the ticket counter after getting their luggage back. However, for all we know, they may well have done so. The OP's story is not very detailed and it is clear that he felt aggrieved by being refused to travel and that he thought that this was unfair and the issue, which I disagree with.

I would not like to assume too much about what the AF staff said or did not say beyond the fact that the ESTA was not valid, that no, unlike what the OP thought, as big an issue as doing an ESTA for the wrong passport (wrong country) can't just be corrected upon arrival and that they would need to have an ESTA if they wanted to fly to the US. It is also hard to make much of an assumption as to how a passenger who thought he was unfairly refused to travel to the US will have reacted exactly and more specifically how his tone will have come across. Conversations are two-way streets, and in general, the more co-operative you are, the more people are likely to give you crucial information on how best to salvage the situation. It is perfectly possible that the people who dealt with the OP were idiots who did not help, but we simply have no way to know, and it is equally possible that they were perfectly helpful and competent but that the OP was too absorbed by the feeling that he should be allowed to travel as the "minor" error with his ESTA would undoubtedly be easily corrected to hear the more important guidelines that may have been given as to how to handle the fact that he could not take this flight.

NickB

Actually, under the Unfair Terms in Consumer Contracts Directive (or more precisely its implementation in EU Member States), as the professional party in a consumer contract, to some extent they are. The former (UK) Office of Fair Trading expressed that rather well in their guidance on the topic (emphasis in the quote is mine):
Thus:
1) you cannot just bury something important in the T&Cs and pull it out like a rabbit out of a hat afterwards and
2) you cannot create a significant imbalance contrary to consumers' legitimate interest.

This is why it seems to me that, while the denial of boarding for the outwards journey is probably entirely legitimate, the cancellation of the return journey (at least in the OP's kind of situation) is, imo, legally very dubious from an unfair contract terms perspective.

orbitmic

But again, is that not based on a fairly important assumption on what exactly was said between agents and passenger. If the passengers were just told: "sorry you can't fly, go pick up your luggage and leave" then yes, I would agree. But if they were told, "sorry, you can't fly, go pick up your luggage and you should talk to the sales counter if you want to rearrange", then I would not agree. And in my experience, which has included a few complex cases such as family members with ticket name problems, the sending to the ticket counter has been systematic so I would not just assume that no such instruction was given here. Again, the jist of the OP's first post is that he considered that AF should have let him fly and it becomes very difficult to double guess what was or was not said because there is simply no specifics regarding that particular conversation.

As for the case of cancelling flights if not flown in order, I would not consider that they are "buried" or else we should probably consider every aspect of plane ticket T&Cs as invalid. if the ticket was bought from AF, there will have been a link to the C of C when ticket was purchased, which includes four items describing what happens in case a passenger does not use all coupons and in order. The same link will be in the email with the etickets, which incidentally also includes a specific warning about ESTA and a request to familiarise oneself with the legal conditions associated wit hthe trip and thus the C of C [in French on one of my recent trips, not even including a trip to the US!: Formalités pour les Etats-Unis : vous devez impérativement obtenir une autorisation de voyage électronique ESTA [https://esta.cbp.dhs.gov/esta/esta.html] pour pouvoir embarquer à destination ou au départ des Etats-Unis ou si vous y effectuez une correspondance. Avant votre départ, veuillez également consulter les dispositions juridiques concernant votre voyage.]. The same is linked from MMB alongside a note that ticket is subject to special conditions.

I read the fair trading guidelines as suggesting that a company cannot "hide" important T&C, but not that they have a duty to spoon feed passengers. I honestly do not see how specific aspects of the C of C could/should be highlighted. All are important and there are all of them. We can't expect an agent from any airline to double guess which of the - literally - hundreds of important aspects of the airline's conditions of carriage a given passenger may be ignoring or unaware of. We can't expect airline staff to randomly highlight some of them (let alone all!) hoping that they will emphasise information that passengers have not considered.

So again, based on the very meagre description we have of what actually happened, I would not rush to consider whether AF failed in their duty or not. To me, it will be largely related to the fact that the OP was advised to go to the ticket desk (or contact AF reservations) or not, and that, we effectively have no way of knowing based on the OP's description.

NickB

No, it is not based on such an assumption. I do not see the relevance of what might or might not be said between agent and passenger to the question of determining the fairness or otherwise (form a legal perspective) of the clause whereby AF reserves the right to cancel all remaining segments whenever, for whichever reason, a passenger does not board a flight even where the failure to board is the consequence of a denial of boarding,

My point is not about this but on the cancellation of the return flight. As I said above, I do not see any problem with the refusal to let the passenger board. I DO see a potential issue with the cancellation of the return flight in the circumstances outlined above.

But simply linking to T&Cs is not a panacea and is not necessarily sufficient to satisfy the requirements of clarity and transparency from an unfair terms perspective. Using again the words of the oft, "relying solely on lengthy terms and conditions to communicate with consumers is positively unhelpful" and the "overriding requirement is that consumers are effectively alerted – before committing themselves – to all contractual provisions that could significantly affect their legitimate interests." Well, it seems to me that the oft would have disagreed with you, as would, I believe, virtually all consumer law specialists: not all terms have the same importance. Terms which are likely to "significantly affect" consumers' legitimate interests and terms which are likely to catch the consumer by surprise in a significant detrimental manner need to be brought to the attention of the consumer in a commensurate manner beyond just being referred to in the TandCs.
While we tend, on FT, to be rather well-versed in the ways and means, practices and typical terms of the industry, I would suggest that it is very far from obvious to an average passenger who has been denied boarding on the outward part of a ticket that their ticket will ipso facto become completely unusable once the flight has left and they have become "no show" (despite having actually physically "showed" ), even for return part of the journey.

The point here, as the quote from the oft guidance in my previous post, is that it is not just a question of transparency but also of substance and, in particular of "striking a fair balance" (using once more an oft phrase) between the legitimate interests of both parties.
You will probably remember the German case that we referred to on a few occasions, in which the Court found that an automatic cancellation of remaining segments for failure to fly coupons in sequence was unlawful for failure to strike such a balance. It seems to me that we are in such a situation. AF could very well have reinstated the return segments when the OP showed up for the return flight rather than giving the "computer says no show" answer ( - please pardon the bad pun!) . While the requirement to use coupons in sequence can be justified (as the German Court recognised) in order for the airline to maintain the integrity of its fare structure, that interest is not at all at stake when the passenger does not seek to evade fare rules by voluntarily not flying some segments but is, on the contrary, unable to fly due to a denial of boarding. There is no legitimate airline interest to protect here and, therefore, the automatic cancellation of remaining segments in this situation which negatively affects the consumer's interest without protecting any legitimate interest of the airline does not strike a fair balance and, as such, looks pretty much like an unfair clause. The matter is compounded by the lack of transparency in failing to highlight the clause (but would probably still be potentially unfair within the meaning of the UTCC Directive, imo)


Again, my point is not about compliance with formalities for the outward journey. We all agree that the denial of boarding by AF on the way out was entirely legitimate. My point is about the automatic cancellation (and non-reinstatement) of the return journey.

Often1

The requirement that a passenger fly each segment in the order ticketed is as old as the hills and it is clearly noted on the e-ticket receipt. People stomp their foot and kvetch about this, but it has survived the test of time. Even the Eurocrats haven't been able to find a better way to Nanny it. So, they don't.

Depending on a passenger's situation, there are also other t&c which may be very important. The carrier has no way of knowing which are which. Thus, all are available. In addition, all carriers flying to/from the USA are required to post their COC on their website along with links to partners with whom they codeshare, form an alliance or otherwise joint venture.

That is "spoon feeding". Put simply, it is doing as much as possible to make certain that the passenger has at least the opportunity to read and abide by the terms.

NickB

You may well consider that the requirement that a passenger fly each segment in the order ticketed may well be "as old as the hills." This, however, has not prevented at least one major European jurisdiction (namely the BundesGerichtHof, viz. the highest German court in civil matters) to consider that such a clause may not always be enforceable precisely on the ground that it may be contrary to the principle of good faith and not striking a fair balance between passenger and airline.

I understand that this will be anathema to some die-hard free market ideologues, especially on the other side of the Atlantic, who will regard this as a reflection of the enslavement of Europeans to totalitarian communist ideology but we tend to see things a little differently here.

Mokshu

It's actually more than just on Air France, it's an IATA resolution that all flights coupons must be flown in the right sequence.

orbitmic

But I think that I explained myself ineffectively because the points you answer are far more general than my specific points.

I was specifically answering the question of whether the communication of the risk of cancellation of the return part of the trip had been sufficient or not. To me there are two stages.

(1) The stage when the ticket was solved and the OP was preparing his trip. You refer to the fact that giving a long list of T&Cs is not enough and that customers should be particularly alerted to rules that are most likely to affect their interest before committing themselves. But I simply do not agree that this is the case of the coupon order rule at that early stage.

Are you willing to make the argument that at the stage someone buys a ticket, the no show rule is more likely to be misunderstood and to affect customers than, say...

- the fact that the ticket is not changeable, not even in the case of most of the very good reasons that we keep reading about on FT and where people expect the airlines to suspend the rules?

- the fact that the ticket is not changeable not even in the case of most of the very good reasons that we keep reading about on FT and where people expect the airlines to suspend the rules?

- the fact that even when the ticket is changeable for a fee, you do not just pay that fee to change the ticket but also the difference in fares which can mean that when you want to change your ticket, you may not pay the €200 fee, but €1000 or 2000, which regularly gets furious complaints on FT?

- the fact that if your ticket leaves at 13.00, it means that if you arrive at the airport at 13.00 or even 12.50 you will be refused boarding, even though at a station you may be fine, and even worse, that latest check in times vary at every individual airport and that even if you are a seasoned traveller with latest check in from the airline's hub, say, 30 minutes before flying, this may be 60 or 75 minutes from US airports or TLV, which regularly leads to furious complains on FT?

- the fact that the airline can change your flight time by a couple of hours without owing you anything even if it means that all of a sudden, this new timing is totally useless for you because of your connection on a separate ticket or your cruise departure, which leads to frequent furious complaints on FT?

- the fact that the airline will not let you travel if you do not have your valid visa for countries a, b, or c or a passport valid x months after your return date for countries d, e, and f, which again prompts many furious FT complaints?

- the facts that the airline may end up cancelling or delaying your flight significantly because of the weather and you might not even be able to get a hotel room if you do not have a visa for the country of the hub from which you are deporting, that your luggage may be delayed or lost or broken and that all the compensation you will get if it happens is sh*t, that the airline may choose to substitute a far less comfortable plane while you chose xxx-yyy just to try their newest A380 or 787, or even a plane from another much inferior airline which they charter at the last minute becase of a technical problem, or even reroute you on JFK-SVO-PEK instead of JFK-CDG-PEK on a whim as long as the timings are unaffected, or that they may deprive you of the bassinet seat you had booked from baby x for months, etc.

At the time of booking, I simply disagree that the coupon order issue stands out, and I would even argue that if the airline "specifically emphasised" everything of the same prominence as the coupon order issue, then they would precisely be what the OFT is telling them not to do which is "burying" information by explaining so much that it becomes invisible. To me, what should be stressed are really change/cancellation conditions and check in limits, because those are effectively that most people undoubtedly fall foul of and more than that undermines the whole concept of emphasis.

(2) The stage when the OP was refused boarding because of his invalid ESTA. You say that whether he was asked to go to the ticket office is irrelevant while I personally think that it is very relevant because this is precisely where the options open to the passenger and all of their respective implications would have been highlighted in my experience. Where the passengers would have been asked what they wanted to do and warned about implications such as the risk of cancellation of the return (or better, offer to protect it).

In other words, I DO agree with you that at that stage, the risks pertaining to the specific situation of the passengers should have been highlighted (even though the passengers had already committed in the sense of a contract), but I do not believe that the airline is obliged to interrupt the boarding process of 400 people for long minutes of debates and explanations just to make sure that this explanation occurs exactly where the passengers want, instead of at the ticket office with people who are effectively both competent in ticket matters (security staff are not, nor are check in staff if specialised) and have access to the ticket, fare rules, reservations systems, etc (which again the gate staff let alone security people do not have).

I know parallels are always problematic, but if I dare one, let's say that you just bought a computer, and within whatever "money back" period, you realise one think you want from it does not seem to work. You call the technical service and they tell you that it actually does not have that functionality. You should be perfectly entitled to cancel the purchase, return the computer, and get your money back, but you are not entitled to having all that done by the computer technician and if they tell you that you need to call free phone xxx to speak to the commercial service and organise the return and reimbursement, I do not believe that this would be an unfair procedure. After all, any judge would understand that large companies have hundreds of employees for a reason and that each have their special skills, and you do not necessarily expect the person in charge of checking passports and visas to be competent at commercial matters any more than you would expect a pilot to be able to tell you about the minimum connection time.

Having just checked with someone who is team leader for some of the ground staff in a major station, I have been told that the standard procedure when someone is refused boarding is always to send them back to the sales desk where their alternatives will be highlighted as well as their consequences. As mentioned earlier, it has also been my systematic experience on the few cases when such issues occurred (although I never had an ESTA one specifically) and I would thus tend to believe that the OP was asked to go to said sales desk. If this was not recommended then it is definitely AF's fault, but if it is, to me, it is not irrelevant in the sense that this is exactly where the "highlighted explaination" you refer to would have taken place. In my view, this is not unreasonable, and in terms of communications of rules regarding the consequences of the refused boarding, I think it would be extremely hard for anyone to make the case that the airline had a duty to highlight all consequences at passport checking point exactly and that it was unreasonable of it to provide the full explanation regarding the relevant rules and alternatives at the ticket desk.

The other point you are making is the substantive one as to whether or not it is defensible for AF to consider that the OP having not flown that leg because of absence of immigration credentials amounted to a no show. That is the part that I did not comment on earlier and still would not really comment on now. My guess is that AF will be on weaker ground here but will argue that if the OP had gone to ticket desk as most probably instructed, he would have been offered rerouting for as soon as his immigration credentials were in order. Whether the airline would also be obliged to protect the ticket if the passenger refused that option and chose to make alternative arrangements to the US and only pick up the return part of his ticket would be for a lawyer to argue I guess.

irishguy28

The "Eurocrats" may not have, but the Germans certainly did!

orbitmic

But isn't that just a short term legalistic answer to renaming a flexible ticket and focusing on the flight sequence instead of others (probably more important) aspects of it?

Incidentally, I think the general point of flights sequence and tickets flexibility is an interesting issue in its own right and one of the aspects of the discussions on the future replacement of EC261/2004 would include generalising the rule that airlines cannot cancel itineraries following a missed flight (although whether or not they would be allowed to reprice is a heavily debated point). I am not against the change although I am very much against many of the other proposals to change the regulation which effectively amount to significantly lowering passengers' rights to compensation which I think should now be protected. One would hope that the European Parliament will protect those rights although the proportion of lunatics that some of our countries have elected make it really hard to guess the outcome of any proposed regulation in the first place.

irishguy28

Whatever it's called, it does explicitly require the buyer to acknowledge the need to fly all coupons in sequence, and to reject this requirement if it is not to their liking (though they may not find the resultant higher, flexible prices much to their liking either!).

I believe that Lufthansa introduced this into their booking flow as a result of being sued for having itineraries cancelled due to missing intermediate flights - but I am not fully sure.

San Gottardo

Sure, it is legalistic. But since the Germans are rules-based it works for them. They are happy to accept some legalistic language if it takes away ambiguity or uncertainty.

(If you remember four rules about the Germans you'll understand most of what they do or don't do:
1. We don't like ambiguity and we don't like unpredictability. Make a clear rule. It doesn't matter if it's a complex rule, as long as it covers all possible scenarios. Do not leave room for someone having to decide on his own what to do. There is a reason why the verb "se débrouiller" is French and has no real translation into German.
2. If we are not happy we go to court. In other countries they may take it to the tabloids (UK) or to the street (France), we want the God of the rules to decide how the rule/the law has to be interpreted and what we have to do. Which is why we have more judges than other countries, e.g. 2.5 times more than France or Italy per capita.
3. Function is more important than form. It doesn't matter if something looks boring, uninspiring or even ugly as long as it works without failures, is practical, does the job. Leave Maserati to the Italians, they look good but break down a lot.
4. We have to hide our true size and weight in foreign policy, because as soon as others realise they'll be afraid again

Some stereotyping but I would still say that it's a good summary of the German psyche. And you know that I have some degree of competence in that matter )

NickB

We might be talking at cross-purposes. I hope this does not sound too patronising and my apologies if it does (it is most certainly not meant that way) but it seems to me that you are not looking at it with lawyer's eyes.

The question that I am asking is: could AF legitimately cancel the return segments and therefore refuse to board the OP on the return part of the journey? The authority on which the airline would seek to rely here is the clause in the contract of carriage that purports to cancel all remaining segments on the ticket if one segment is not flown.
The question for me, therefore, is whether that clause is valid or not. The attitude of the agent at the airport has strictly no relevance for the determination of that issue. If the clause is invalid, it was invalid right from the start when the contract was concluded, long before the OP went anywhere near the airport. Nothing that any AF agent could have said or done at the airport could have changed that.

Now, my argument is that this clause, to the extent that it purports to apply whenever a segment is not flown for any reason whatsoever, is too wide and invalid pro tanto, when it purport to apply to situations where it would be unfair to the consumer. How do I come to that conclusion? Pretty much along the same lines as in the BundesGerichtHof's judgment against BA in the sequential use case: the systematic cancellation of all remaining segments when a segment is not flown does not strike a fair balance between the interests of consumers and those of the airline and constitutes a breach of the principle of good faith that underlies not just German law on the subject but also the Unfair Terms in Consumer Contract Directive and therefore the implementing measures of that Directive in all EU jurisdictions.

The matter is further compounded by the failure to highlight this (rather drastic and excessive) clause. The examples you give are, in that respect, quite telling: airlines (and OTAs) do outline the main aspects of the rules on changes and cancellations as part of the booking process rather than leaving the purchaser to just read the TandCs and complete fare rules. As to check-in cut-off times or appropriate documentation, I would suspect that a jurisdiction would in all likelihood consider that a reasonable traveler could be expected to know that. Moreover, with regard to the US, you will note that airlines explicitly refer to the need to get an esta as part of the booking process (even though, imo, they would not legally be obliged to). The other examples you give is of changes by the airlines. But here I would argue too that some of these could be regarded as unfair and therefore unenforceable. If the airline changes your flight by 2 hours, I would have thought that you would be at least entitled to cancel and refund (and, ime, most airlines would allow that, at any rate in Europe), thereby striking that "fair balance" that is so essential to good faith.

But even if we ignore the transparency issue, the fact remains that there is, imo, substantive unfairness in the systematic cancellation of remaining segments regardless of the reason for not flying and, to that extent, it was not appropriate for the airline to dismiss the OP for the return. IMO, there is a strong legal argument for the view that they might have relied on an unfair (and therefore invalid) term in the contract in doing so and should therefore have refrained from enforcing this clause and re-instated the OP's reservation for the return.