Refused Downgrade - What are my rights?
#46
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My (limited) understanding is 261/2004 confers passengers protections in addition to than local law or contract provides. E.g. I had a case where a mate of mine was IDGed from J to PE on a FRA-HKG redmeption with CX on Asia Miles. CX initially said a pro-rated refund of the redemption, being 50% of the miles used for segment was available under Asia Miles T&C. My mate cited EC261 and was refunded 70% of the miles.
#47
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I am a lawyer and I don't know the answer - hence why I am asking. Aviation is a law unto itself (literally!) but I certainly feel:
1. As a consumer, if I purchase a 'business class' ticket then if in fact the airline can force me to fly in economy (or lose my ticket with no compensation) then I would expect that term to have a big red hand next to it at the time of purchase.
2. Can BA simply say 'sorry Mr Morgan I know you booked club world but actually we don't guarantee it and here's your boarding pass for World Traveller seat 30E. Take it or leave it but if you leave it you will be treated as a no show and will lose your ticket'?
3. If that is right then it must also be right that I could say 'well I'll leave it thanks but I'll buy a new Club World ticket tomorrow'. 'Ok that'll be $4,000'. Next day "sorry Mr Morgan but we don't guarantee you'll travel in Club. Here's a boarding pass for World Traveller seat 30E. Take it or...."
Is that actually the law?
1. As a consumer, if I purchase a 'business class' ticket then if in fact the airline can force me to fly in economy (or lose my ticket with no compensation) then I would expect that term to have a big red hand next to it at the time of purchase.
2. Can BA simply say 'sorry Mr Morgan I know you booked club world but actually we don't guarantee it and here's your boarding pass for World Traveller seat 30E. Take it or leave it but if you leave it you will be treated as a no show and will lose your ticket'?
3. If that is right then it must also be right that I could say 'well I'll leave it thanks but I'll buy a new Club World ticket tomorrow'. 'Ok that'll be $4,000'. Next day "sorry Mr Morgan but we don't guarantee you'll travel in Club. Here's a boarding pass for World Traveller seat 30E. Take it or...."
Is that actually the law?
For example, would one be able to argue a term allowing BA to substitute an inferior service and with compensation as they see fit as an unfair term (assuming that is a term).
Would there be an argument that BA has not acted with reasonable care and skill in not being able to supply the promised service?
#48
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I follow that to a point - surely the breach occurs when you are purportedly downgraded. My point is that the downgrade is a change to the contract - I thought I had purchased a business class flight and now you are giving me an economy class flight which is not what I purchased (I am trying to work out whether there's something in BA's ts and cs entitling them to unilaterally change the cabin of service). As you say I guess then the question is whether the customer can treat it as a repudiatory breach and where the losses flow. Or could the customer try to get an order for specific performance of the original contract (i.e. business class) albeit at a later date? I'm just trying to work out exactly where the line is.
Isn't 261/2004 complementary to any contractual remedies? Or is it a complete code?
Isn't 261/2004 complementary to any contractual remedies? Or is it a complete code?
My sense is still that the right ‘test’ would be the one you mention, ie if an airline considered that it could ‘force’ you to fly in the downgraded cabin and you were refusing to and they considered it a voluntary cancellation on your part. By contrast, in the op’s case where the remedy you mention is mutually agreed, I personally find it hard to consider that one of the parties could then go back to claiming a breach of contract to seek additional compensation over and above the new solution they both agreed. At any rate, if one considered that the rebooking would only be acceptable on condition of some additional compensation, it would be prudent to ideally agree that as part of the process of rebooking/resolution, or at the very least have that claim noted there and then or it seems to me that the default assumption would be that the new booking is the mutually agreed solution to the original incident.
#49
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As I see it, part of the problem is that EC261 has resulted in European airlines no longer doing customer service gestures beyond what EC261 requires. Yet, in the involuntary downgrade case, it would be very reasonable to expect the carrier not only to pay duty of care but also make a customer service gesture/apology when a customer must take a later (or earlier if applicable) flight in order to stay in the cabin that was booked.
A business class ticket is not the same as (for instance, use your own probability estimates) a 99% chance of traveling on business class and a 1% chance of flying coach on the same flight with the EC 75% refund. Many people who purchase business tickets do not want to take the trip in coach, at any price, and in fact they're already shown that they would not have preferred to travel in coach for the coach fare, which is why just refunding the price difference is inadequate. [In fact, I suspect that the only people willing to take the price difference refund and sit in coach are those whose employers have purchased the ticket and who plan to just pocket the refund without notifying the employer.]
A business class ticket is not the same as (for instance, use your own probability estimates) a 99% chance of traveling on business class and a 1% chance of flying coach on the same flight with the EC 75% refund. Many people who purchase business tickets do not want to take the trip in coach, at any price, and in fact they're already shown that they would not have preferred to travel in coach for the coach fare, which is why just refunding the price difference is inadequate. [In fact, I suspect that the only people willing to take the price difference refund and sit in coach are those whose employers have purchased the ticket and who plan to just pocket the refund without notifying the employer.]
#50
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Whether additional rights apply or not, I suspect that almost any carrier would be quite happy to refund the ticket in question at the passenger's request and be done with him.
Sometimes there just is not a good remedy. One must be somewhere else for an important meeting, event or whatever and there are no seats in F/CW/WTP as the case may be. There are also no other good options in a premium cabin. Thus, one either lumps it in WT or does not fly.
Sometimes there just is not a good remedy. One must be somewhere else for an important meeting, event or whatever and there are no seats in F/CW/WTP as the case may be. There are also no other good options in a premium cabin. Thus, one either lumps it in WT or does not fly.
#51
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Great for airlines - commit low-fare paying passengers into non-cancellable fares, boot those lowest passengers off if somehow high-fare paying passengers showed up.
Very equal treaty. Can passengers pull refunds off airlines this way too?
Last edited by percysmith; Feb 16, 2019 at 1:53 pm
#52
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Whether additional rights apply or not, I suspect that almost any carrier would be quite happy to refund the ticket in question at the passenger's request and be done with him.
Sometimes there just is not a good remedy. One must be somewhere else for an important meeting, event or whatever and there are no seats in F/CW/WTP as the case may be. There are also no other good options in a premium cabin. Thus, one either lumps it in WT or does not fly.
Sometimes there just is not a good remedy. One must be somewhere else for an important meeting, event or whatever and there are no seats in F/CW/WTP as the case may be. There are also no other good options in a premium cabin. Thus, one either lumps it in WT or does not fly.
This is why airlines should be required to solicit volunteers before doing involuntary downgrades or IDBs.
#53
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Both US (14 C.F.R.) and EU (261/2004) law require the solicitation of volunteers before denying boarding. Neither requires this before downgrading. US law requires only that any fare difference be refunded. EU law requires that somewhere between 30-75% of the base segment fare be refunded. Neither requires compensation.
#54
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The whole notion that without consumer protection airlines did or would self regulate and be more generous without being forced to is, in my view, non credible. Indeed, each year, I’m still the victim of airlines not subjects to those consumer protection obligations and can sadly testify that you get treated like rubbish and certainly not more likely to get more voluntary costumer service generosity than with, say, BA, AF or LH. The only possible exception is LY which is very ungenerous beyond their high regulatory obligations, but then again they were totally unfenerous before them too and that’s probably why the Israeli legislator has been quite thorough.
#55
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Credit card chargebacks are a good example of this phenomenon. When the US introduced a mandatory minimum 60-day chargeback period (from the date the charge first appears on a statement), some people were convinced that this would be the end of no fee cards and that interest rates would go through the roof. It has not been the end of such cards and rates have tracked for years.
At the same time, card issuers have extended chargeback periods to as long as a year even though they have no obligation to do so.
At the same time, card issuers have extended chargeback periods to as long as a year even though they have no obligation to do so.