EC261/2004 success against Etihad!
Jun 28, 2016, 3:10 pm
#1
Original Poster
Join Date: Jun 2016
Posts: 4
EC261/2004 success against Etihad!
My wife was denied boarding on an India bound flight with Etihad Airways from Manchester in April 2015 on the basis that she did not possess requisite travel documents. Changes introduced in January 2015 had removed the requirement from Overseas Citizens of India (OCI) card holders to carry separate visas but Etihad check in staff insisted that my wife produce the ‘U’ visa that was on her expired passport. My 4 year old and I were forced to travel alone on the understanding that my wife will join us later, after the staff threatened to cancel all 3 tickets if we chose not to travel. Although I made a formal complaint, both verbally and in writing, to Etihad immediately upon arrival in India citing documentary proof of the relevant changes, Etihad refused to accept any responsibility for its actions or rebook my wife’s ticket, which eventually forced her to abandon the trip.
After several written complaints to Etihad Customer Services in subsequent months elicited no response, we eventually raised a claim through Small Claims against the airline in June 2015 seeking compensation under EC261/2004 for denied boarding. In its defence, Etihad cited an excerpt from the TIM manual (produced by the IATA) from April 2015 that acknowledged the changes introduced in January 2015 yet maintained that OCI card holders had to carry expired passports. At the initial hearing in September 2015, the airline’s counsel produced some undated guidance from some obscure Government of India website to challenge the changes in January 2015 besides contesting the very basis of the claim both under EC261/2004 as well as relevant clauses in Etihad’s Conditions of Carriage.
To cut a long story short, during the course of 3 subsequent hearings, I was able to produce evidence from various sources, including the IATA itself, that confirmed the changes in January 2015 following which Etihad changed tack and claimed that EC261/2004 gave airlines latitude to refuse boarding to passengers on the basis of check in staff’s ‘objectively reasonable belief’ about health, security concerns or inadequate travel documents. They also invoked clauses in the conditions of carriage which said things to this effect i.e. the airline reserved the right to refuse carriage if, in their opinion, the customer was a health/security risk or lacked appropriate documentation.
The court comprehensively dismissed Etihad’s defence and held that ‘objectively reasonable belief’ of check in staff was not adequate grounds to refuse passengers boarding for health, security or documentation reasons unless this can be empirically proven to be the case i.e. in my wife’s case it was evident, with the benefit of hindsight, that the documents in her possession at the time were adequate for entry to India irrespective of the ambivalent wording of the IATA guidance and she was therefore entitled to compensation under EC 261/2004. For the sake of clarity, the judge also listed specific circumstances which, in his view, would constitute reasonable grounds for airlines to deny boarding to passengers for health and security reasons.
More importantly, the judge also upheld my argument that entire sections of Etihad’s Terms & Conditions were incompatible with UK law and allowed recovery of some heads of costs under breach of contract.
From my conversations with Etihad’s legal team, this is the first instance of a claim being made under EC 261/2004 for denied boarding outside of the usual grounds such as delays, technical faults, cancellations, overbookings etc and has therefore significantly broadened the scope of the regulation. By declaring sections of Etihad’s Conditions of Carriage illegal, the ruling has also opened up the possibility of other claims being brought against Etihad for compensation under contract law on a variety of grounds.
What shocked me through the entire experience was the utter callousness and contempt with which Etihad appeared to treat us as customers. Not only did it refuse us any redress (way back in April, we had not demanded any compensation but that Etihad book my wife on to the next flight) they continued contesting our modest claim, eventually spending around Ł20000 in legal fees, despite it being patently obvious that the check in staff had got it wrong. As we were representing ourselves, Etihad also used a combination of legal technicalities and threats to persuade us to drop the claim and even stooped to the level of contesting a claim of Ł 86 towards my wife’s return rail fare from Manchester after being denied boarding.
The ruling was only delivered last week so I will update this post as well as a transcript becomes available in the public domain. Although the financial award was not worth the hassle, I am satisfied that I have delivered the airline a potential kick in the teeth by holding it to account for its actions and exposing it to further compensation claims.
After several written complaints to Etihad Customer Services in subsequent months elicited no response, we eventually raised a claim through Small Claims against the airline in June 2015 seeking compensation under EC261/2004 for denied boarding. In its defence, Etihad cited an excerpt from the TIM manual (produced by the IATA) from April 2015 that acknowledged the changes introduced in January 2015 yet maintained that OCI card holders had to carry expired passports. At the initial hearing in September 2015, the airline’s counsel produced some undated guidance from some obscure Government of India website to challenge the changes in January 2015 besides contesting the very basis of the claim both under EC261/2004 as well as relevant clauses in Etihad’s Conditions of Carriage.
To cut a long story short, during the course of 3 subsequent hearings, I was able to produce evidence from various sources, including the IATA itself, that confirmed the changes in January 2015 following which Etihad changed tack and claimed that EC261/2004 gave airlines latitude to refuse boarding to passengers on the basis of check in staff’s ‘objectively reasonable belief’ about health, security concerns or inadequate travel documents. They also invoked clauses in the conditions of carriage which said things to this effect i.e. the airline reserved the right to refuse carriage if, in their opinion, the customer was a health/security risk or lacked appropriate documentation.
The court comprehensively dismissed Etihad’s defence and held that ‘objectively reasonable belief’ of check in staff was not adequate grounds to refuse passengers boarding for health, security or documentation reasons unless this can be empirically proven to be the case i.e. in my wife’s case it was evident, with the benefit of hindsight, that the documents in her possession at the time were adequate for entry to India irrespective of the ambivalent wording of the IATA guidance and she was therefore entitled to compensation under EC 261/2004. For the sake of clarity, the judge also listed specific circumstances which, in his view, would constitute reasonable grounds for airlines to deny boarding to passengers for health and security reasons.
More importantly, the judge also upheld my argument that entire sections of Etihad’s Terms & Conditions were incompatible with UK law and allowed recovery of some heads of costs under breach of contract.
From my conversations with Etihad’s legal team, this is the first instance of a claim being made under EC 261/2004 for denied boarding outside of the usual grounds such as delays, technical faults, cancellations, overbookings etc and has therefore significantly broadened the scope of the regulation. By declaring sections of Etihad’s Conditions of Carriage illegal, the ruling has also opened up the possibility of other claims being brought against Etihad for compensation under contract law on a variety of grounds.
What shocked me through the entire experience was the utter callousness and contempt with which Etihad appeared to treat us as customers. Not only did it refuse us any redress (way back in April, we had not demanded any compensation but that Etihad book my wife on to the next flight) they continued contesting our modest claim, eventually spending around Ł20000 in legal fees, despite it being patently obvious that the check in staff had got it wrong. As we were representing ourselves, Etihad also used a combination of legal technicalities and threats to persuade us to drop the claim and even stooped to the level of contesting a claim of Ł 86 towards my wife’s return rail fare from Manchester after being denied boarding.
The ruling was only delivered last week so I will update this post as well as a transcript becomes available in the public domain. Although the financial award was not worth the hassle, I am satisfied that I have delivered the airline a potential kick in the teeth by holding it to account for its actions and exposing it to further compensation claims.
Last edited by thirdwave; Jun 29, 2016 at 12:37 am Reason: Typos
Jun 29, 2016, 2:50 am
#3
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Congratulations!
However, I disagree completely with the assessment that this "has therefore significantly broadened the scope of the regulation". It is not for a small claims court to "broaden" the scope of any regulation; the regulation is intended to cover anyone who is denied boarding for ANY invalid reason.
I would also question the Etihad legal team's assertion that this is the "first time ever" that a claim was made "for denied boarding outside of the usual grounds".
Stuff that goes on in the small claims courts isn't of as much interest to the airlines as the cases that make it to national courts and therefore set precedents for how the regulation is interpreted in that country.
However, I disagree completely with the assessment that this "has therefore significantly broadened the scope of the regulation". It is not for a small claims court to "broaden" the scope of any regulation; the regulation is intended to cover anyone who is denied boarding for ANY invalid reason.
I would also question the Etihad legal team's assertion that this is the "first time ever" that a claim was made "for denied boarding outside of the usual grounds".
Stuff that goes on in the small claims courts isn't of as much interest to the airlines as the cases that make it to national courts and therefore set precedents for how the regulation is interpreted in that country.
Jun 29, 2016, 3:24 am
#4
Join Date: Nov 2007
Location: KYE
Posts: 4,156
But besides that, the most significant bit, though quite narrow in scope and applicability, is that the judge viewed that EY's T&C are incompatible with UK law.
So if EY breaches a contract (through service denial or failure) citing their T&C, there may be legal grounds to litigate and seek compensation.
Jun 29, 2016, 5:40 am
#5
Original Poster
Join Date: Jun 2016
Posts: 4
Congratulations!
However, I disagree completely with the assessment that this "has therefore significantly broadened the scope of the regulation". It is not for a small claims court to "broaden" the scope of any regulation; the regulation is intended to cover anyone who is denied boarding for ANY invalid reason.
I would also question the Etihad legal team's assertion that this is the "first time ever" that a claim was made "for denied boarding outside of the usual grounds".
Stuff that goes on in the small claims courts isn't of as much interest to the airlines as the cases that make it to national courts and therefore set precedents for how the regulation is interpreted in that country.
However, I disagree completely with the assessment that this "has therefore significantly broadened the scope of the regulation". It is not for a small claims court to "broaden" the scope of any regulation; the regulation is intended to cover anyone who is denied boarding for ANY invalid reason.
I would also question the Etihad legal team's assertion that this is the "first time ever" that a claim was made "for denied boarding outside of the usual grounds".
Stuff that goes on in the small claims courts isn't of as much interest to the airlines as the cases that make it to national courts and therefore set precedents for how the regulation is interpreted in that country.
As pointed out by edy4eva, more damaging for Etihad are observations by the judge about the illegality of its terms & conditions. As for the precedential value of the judgement, the decision was delivered after 4 lengthy hearings, both over the phone and in person,at the country court over 9 months (and not a default judgement online) and the judge delivered a long verdict citing case law, legislation etc at the end of it so I'd imagine it's worth something. Besides, why would Etihad spend thousands of pounds defending the claim if it was of little interest to them?
Like I said, I'll post a transcript of the judgement when I receive it so we'll see..
Last edited by thirdwave; Jun 29, 2016 at 5:59 am Reason: Typos
Jul 5, 2016, 7:57 am
#6
Join Date: May 2013
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Why did they not settle out of court? What's wrong with the way this airline does business?
The fact that they sent a team of lawyers to small claims court is incomprehensible and says more about their approach to passengers and about their government subsidized business model.
This is really a David vs Goliath story and ought to make the news somewhere, especially given Etihad's bullying tactics vs a self-representing plaintiff.
The fact that they sent a team of lawyers to small claims court is incomprehensible and says more about their approach to passengers and about their government subsidized business model.
This is really a David vs Goliath story and ought to make the news somewhere, especially given Etihad's bullying tactics vs a self-representing plaintiff.
Jul 6, 2016, 4:19 am
#9
Join Date: Oct 2007
Location: Dubai / NYC
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Posts: 5,220
Why did they not settle out of court? What's wrong with the way this airline does business?
The fact that they sent a team of lawyers to small claims court is incomprehensible and says more about their approach to passengers and about their government subsidized business model.
This is really a David vs Goliath story and ought to make the news somewhere, especially given Etihad's bullying tactics vs a self-representing plaintiff.
The fact that they sent a team of lawyers to small claims court is incomprehensible and says more about their approach to passengers and about their government subsidized business model.
This is really a David vs Goliath story and ought to make the news somewhere, especially given Etihad's bullying tactics vs a self-representing plaintiff.
Im only half kidding. UAE based companies are not used to getting sued - or I should say maybe they get sued all the time but the majority complaints/suits would take place in Abu Dhabi where you don't have a chance - As Mel Brooks said, "its good to be the king"
Jul 7, 2016, 5:30 am
#10
Join Date: May 2013
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Its not run like a normal airline HOW DARE OP FILE SUIT AGAINST AN ARM OR THE ROYAL FAMILY Im only half kidding. UAE based companies are not used to getting sued - or I should say maybe they get sued all the time but the majority complaints/suits would take place in Abu Dhabi where you don't have a chance - As Mel Brooks said, "its good to be the king"
Im only half kidding. UAE based companies are not used to getting sued - or I should say maybe they get sued all the time but the majority complaints/suits would take place in Abu Dhabi where you don't have a chance - As Mel Brooks said, "its good to be the king"Something tells me these guys do not give a flying $hit about their company losing a lawsuit
Jul 7, 2016, 8:10 am
#11
Join Date: Oct 2007
Location: Dubai / NYC
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http://www.thenational.ae/business/a...oard-at-etihad
Something tells me these guys do not give a flying $hit about their company losing a lawsuit
Something tells me these guys do not give a flying $hit about their company losing a lawsuit
Jul 12, 2016, 5:23 am
#12
Join Date: Apr 2011
Location: madrid
Posts: 66
Gentlemen
this can happen to any of us. Lets tell Etihad what we think about them by NOT flying on them anymore. That is our best weapon.
after reading this thread i will CAREFULLY consider other all other alternatives before I consider selecting them
this can happen to any of us. Lets tell Etihad what we think about them by NOT flying on them anymore. That is our best weapon.
after reading this thread i will CAREFULLY consider other all other alternatives before I consider selecting them
Jul 12, 2016, 5:54 am
#13
Join Date: Mar 2015
Posts: 3
I checked a number of airline contracts of carriage, and they seem to like using words such as "appear," "in our opinion," etc. This seems to give them a lot of leeway. Whether they all enforce these terms as ignorantly as Etihad did in your case, I don't know.
As an aside, some of them are quite humorous, such as United's right to deny boarding if the passenger is too wide, smells, or shows up barefoot.
https://www.united.com/web/en-US/con...age.aspx#sec21
As an aside, some of them are quite humorous, such as United's right to deny boarding if the passenger is too wide, smells, or shows up barefoot.
https://www.united.com/web/en-US/con...age.aspx#sec21
Jul 12, 2016, 7:01 am
#15
Join Date: Dec 2013
Posts: 368
Congratulations @thirdwave. I applaud you for fighting with an airline.
I too have an OCI card & recently traveled from USA to India. I wasn't aware of the changed rule. Although I carried the expired passport with the U sticker for my daughters, I never had to show them when checking in on Lufthansa. On our way to USA, I even asked the immigration officer whether the old passport is required & I was told "Not necessary" as long as you have the OCI booklet.
I feel sorry for your family that your wife could not accompany you. But I'm glad that you fought successfully with the airline on this.
The GOI OCI website does mention the rule
http://boi.gov.in/content/overseas-c...oci-cardholder
It says in the "Note" section
Government of India has decided to dispense with the "U" Visa sticker on the foreign passport of OCI card holders with immediate effect. Accordingly, Immigration authorities shall not insist on production of foreign passport containing the "U" Visa sticker in the case of OCI card holders while they enter/exit India. OCI card holders shall now be given Immigration clearance on the strength of their valid forign passport and OCI Registration Certificate (OCI booklet, popularly known as OCI card).
I too have an OCI card & recently traveled from USA to India. I wasn't aware of the changed rule. Although I carried the expired passport with the U sticker for my daughters, I never had to show them when checking in on Lufthansa. On our way to USA, I even asked the immigration officer whether the old passport is required & I was told "Not necessary" as long as you have the OCI booklet.
I feel sorry for your family that your wife could not accompany you. But I'm glad that you fought successfully with the airline on this.
The GOI OCI website does mention the rule
http://boi.gov.in/content/overseas-c...oci-cardholder
It says in the "Note" section
Government of India has decided to dispense with the "U" Visa sticker on the foreign passport of OCI card holders with immediate effect. Accordingly, Immigration authorities shall not insist on production of foreign passport containing the "U" Visa sticker in the case of OCI card holders while they enter/exit India. OCI card holders shall now be given Immigration clearance on the strength of their valid forign passport and OCI Registration Certificate (OCI booklet, popularly known as OCI card).