WHO'S SORRY NOW? NOT THE AIRLINES
By Joe Brancatelli
March 14, 2012 -- In the 12 chaotic days since United Airlines made major changes to its computer infrastructure, the carrier has delayed thousands of flights, wiped out the paid itineraries of an unknown number of travelers, "mishandled" who knows how many checked bags, misplaced the seat assignments of a clutch of its most frequent flyers, and generally annoyed the hell out of huge swathes of its customer base.
United has yet to apologize because being an airline means never having to say you're sorry.
In fact, being an airline means never having to give you the seat on the plane for which you paid. It means never having to fly on time. It means not having to get you home if it strands you halfway around the world. Being an airline means never even having to fly you to the city that appears on the ticket you purchased. Actually, being an airline means never having to fly aircraft—which pretty much means you're not even an airline.
Don't believe me? Read the contract of carriage you agree to whenever you purchase a ticket from a commercial airline. Didn't know you agreed to a contract when you bought a ticket? Turns out being an airline means not having to tell you about the contract either.
Even in an era when customers blindly click a button on a website to agree to a mass of boilerplate, sign mobile-phone or car-leasing contracts that they don't read, or do dozens of other day-to-day tasks by checking a box and acquiescing to small-print terms and conditions, airlines still take the cake for opaque rules and arcane notification. The so-called contract of carriage every airline imposes is literally written in fine print, almost never discussed, and is specifically framed so that an airline is required to do nothing and the customer is always wrong.
"A typical airline contract of carriage is the most one-sided document the average consumer will ever encounter," says Erica Hilstrom, a corporate attorney, frequent flyer, and one of the few travelers I know who has actually taken the time to acquire and read what her airline insists she agrees to when she purchases a ticket.
"I'd like to say that knowledge is power; that if travelers took the time to read the contracts of carriage and knew their legal rights and obligations, they would be better consumers. But they wouldn't be. It is gobbledygook of the finest legal variety."
The history of the contract of carriage is long and, frankly, incredibly boring. Suffice it to say that it has developed over decades as a classic CYA document that virtually ensures an airline is not responsible for any implied or explicit service promise it makes. Coupled with the fact that the law that deregulated the nation's commercial air-travel system in 1978 restricts most types of legal action against carriers to the slow-moving, expensive-to-litigate federal courts, the contracts virtually ensure that airlines can never be held to account for their failure to perform.
Take this month's operational meltdown at United, the world's largest airline, for example. You'd think that such widespread performance failures would leave the airline open to some type of redress. Not according to United's contract of carriage.
Rule 24 of United's 46-page document is blunt: "Times shown on ticket, timetable, or elsewhere are not guaranteed and form no part of this contract." In fact, says United, the airline "shall not be liable for failing to operate any flight according to schedule, or for any change in flight schedule, with or without notice to the passenger."
This cavalier attitude toward an airline's basic function—flying aircraft, passengers, and luggage from place to place—is hardly unique to United. All of its competitors have similar language in their own contracts of carriage.
Once you realize that buying a ticket on an airline actually guarantees you nothing at all, you begin to ignore the contracts for your own sanity. Nevertheless, they are fascinating exercises in law over common sense and/or the right of ownership of what you purchased.
Over at Delta Air Lines, for example, the 51-page contract is prickly about tickets. Delta insists that you can only use the tickets in the order that they were issued. It even has the right to bar you passage on a connecting flight if it decides you didn't use the first part of a multisegment itinerary. And do not even think of purchasing a roundtrip ticket and only using half of it. Believe it or not, Delta and all other carriers insist that you use all of your roundtrip ticket. No halfsies.
The odd ticket rules do have a purpose, at least from the airline's point of view. Airline fare structures are so convoluted that buying a roundtrip ticket is often cheaper than buying a one-way ticket, hence the rule on halfsies. (The industry calls them "throwaways.") The rule about using all of your connecting flight "coupons" is aimed at stopping a price-cutting practice called the "hidden city" or "point beyond" ticket. (Inexplicably, airlines sometimes charge you more for flying, say, New York to Tokyo than it does to fly New York to Tokyo with an onward flight to Hong Kong.) Airlines also bar the practice of "nesting," a complicated strategy in which you save money by mixing and matching the separate tickets from different itineraries.
Delta and the other airlines are also touchy when it comes to the matter of abandoning you en route to a destination. Most will begrudgingly get you a hotel room if the delay is overnight. But as the Delta contract explains, if it can't get you a hotel, you're on your own, and Delta is off the legal hook.
Airline contracts are also wacky when it comes to the matter of checked bags. Besides the fact that they routinely claim they don't owe you a refund of your checked-bag fees if they lose your luggage, they are obsessive about exclusions. US Airways' contract of carriage actually says it won't carry "flimsy garment bags," although it doesn't give a legal standard for flimsy. And airlines are truly anal about classifications of baggage. Delta's contract, for example, recognizes 14 separate types of sports equipment, including lacrosse gear.
One other thing: Airline contracts of carriage now specifically say that carriers don't guarantee your checked bags will arrive on the same flight as you. Back in 2000, a Dutch court decided that timely arrival of bags with passengers was an "absolute commitment." So airlines around the world rewrote their contracts to specifically remove the expectation that flyers and their bags would necessarily travel on the same flight.
Don't get them started on pets, either. Here's one airline's take: "No more than one adult dog or cat may occupy a single container. Two puppies or kittens may occupy a single container provided they are less than six months of age and weigh less than 20 pounds each. Two household birds will be permitted in the same container." Oddly specific when you consider this is the same contract that doesn't actually bind the airline to fly you anywhere.
Ironically, the best-known part of airline contracts of carriage haven't ever been part of the contracts. In the regulated era, the federal government formulated a regulation that came to be known as Rule 240. In essence, Rule 240 required airlines to put passengers on the next available flight of any carrier should the flyer's original service be canceled or delayed.
With the 1978 deregulation of airlines, however, Rule 240 disappeared. But aided by misinformed travel "experts," Rule 240 has become something of an urban legend. Unwitting passengers boldly demand that airlines "Rule 240 them" over to another carrier whenever a very long delay or a flight cancellation occurs.
These days, however, airline policies about passage on another carrier during a "flight irregularity" is similar to what is enshrined in American Airlines' contract of carriage: "You will be rerouted on the next American flight with available seats." There is no guarantee that American, or any carrier, will put you on some other airline's flight. And the contract of carriage at AirTran Airways is blunt: "AirTran will not provide or reimburse passengers for expenses incurred due to delays or cancellations of flights."The Fine Print…
The Department of Transportation publishes a plain-English guide to a passenger's legal protections in a document called Fly-Rights. It details the amounts that airlines must pay if they lose your luggage or involuntarily deny you boarding for a flight. The guide covers the de jure rules, but de facto rights are something else again. For example, airlines are required by law to have a copy of their contract of carriage at every ticket counter. Several years ago, a passenger demanding to see an airline's contract of carriage was arrested when the ticket-counter agent refused to produce it and then called the police and claimed the flyer was a potential security threat.
ABOUT JOE BRANCATELLI Joe Brancatelli is a publication consultant, which means that he helps media companies start, fix and reposition newspapers, magazines and Web sites. He's also the former executive editor of Frequent Flyer and has been a consultant to or columnist for more business-travel and leisure-travel publishing operations than he can remember. He started his career as a business journalist and created JoeSentMe in the dark days after 9/11 while he was stranded in a hotel room in San Francisco. He lives on the Hudson River in the tourist town of Cold Spring.
THE FINE PRINT This column is Copyright © 2012 American City Business Journals. All rights reserved. Reprinted with permission. JoeSentMe.com is Copyright © 2012 by Joe Brancatelli. All rights reserved.