Lawsuit threat may be best recourse
Q. We've had a problem with a missing flight segment that I've tried to resolve for the last six months. We were hoping you could help.
Here's what happened: We had seats booked on a British Airways flight from Calgary to Rome with a connection in London. When the airline e-mailed my confirmation, I noticed that a leg was missing.
I called British Airways and asked how we were supposed to get to London. The agent informed me that our flight had been canceled but didn't give me a reason. I asked to be rebooked on the flight for that evening and was told no seats were available. But that was wrong. When I checked online, I found that there were seats - in first class.
Our travel agent got us on a flight the next day. But we lost a day of our vacation and a night's stay at our hotel in Rome that we had to pay for, but not enjoy. We also had to pay a 120-euro fee for being no-shows at our hotel in Rome.
It turns out our original flight had been canceled because of a lack of cabin crew. I filed an e-mail complaint, but British Airways said it canceled the flight because "circumstances were beyond their control." Since then, I've heard nothing from British Airways. I've called, e-mailed and written to the airline. But there's been no response. What should we do?
- Karen Kernohan, Calgary, Canada
A. British Airways should have put you on the next available flight in which it had seats available, which it did.
According to the airline's general conditions of carriage (available at britishairways.com) - the contract between the airline and you - it should have rebooked you on the next flight.
Rule 9, Section B number 3 promises the airline will "carry you as soon as we can to the destination shown on your ticket on another of our scheduled services on which a seat is available in the class of service for which you have paid the fare," according to the contract.
But that's not all it should have done for you. EU Rule 261 says you were owed compensation for the cancellation. As I read Article 7 of the rule, you should have been offered 600 euros for your cancellation.
There's a loophole in the rule that British Airways is taking advantage of. It says air carriers are off the hook when a cancellation occurs "in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken."
British Airways believes a crew shortage is an extraordinary circumstance. I don't.
Actually, the "extraordinary circumstances" excuse is commonly used by airlines flying to and from Europe. And there's only one way to close the loophole: You have to threaten to sue them. Politely.
In your correspondence with an airline invoking circumstances, you need to mention in the first or second sentence that if this isn't resolved to your satisfaction, you may be forced to take the matter to a European court. The airlines are nervous that a court will define "extraordinary circumstances" and that they won't like the definition.
Like other airlines, British Airways stops corresponding with a passenger when it considers the matter closed. It doesn't matter that you think your problem is unresolved. Few air carriers bother to put it into those terms, but some actually do. I recently saw a letter from Air Canada in which it told a passenger, "this case is considered closed and you should not anticipate a response to any further communication dealing with the same issues."
Under most circumstances, threatening a lawsuit would be a last resort. But in a situation like this, where an airline is exploiting a contractual loophole, it would be my first move.
I contacted British Airways on your behalf, and it apologized for the cancellation. It insisted that extraordinary circumstances were to blame for the cancellation, but it agreed to refund your 120-euro no-show fee. It also sent you a $200 voucher for your trouble.
Christopher Elliott is the ombudsman for National Geographic Travelermagazine.
E-mail him at firstname.lastname@example.org or troubleshoot
your trip through his Web site at www.csr.elliott.org.
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