Air Passenger Rights in the Electronic Age

Abstract

For many decades, the private law rights of passengers against their air carriers were covered by the 1929 Warsaw Convention and its various amendments, supplemented by the International Air Transport Association (IATA) Conditions of Contract and Carriage of the airlines. Air carriers and their (travel) agents administered this worldwide system through their distribution of the air travel product. Over the years, the distribution system has changed considerably: computerized reservation systems were introduced; more and more did passengers or third parties on their behalf begin to contract directly with the airline of their choice, bypassing the agent, and more and more did they do so online, electronically, from their home or office computers. Meanwhile, the Warsaw Convention was replaced by the 1999 Montreal Convention. Also, following deregulation and liberalization of the airline industry, and a concomitant decrease in the regulatory influence of IATA, consumerism entered the air travel world prompting governments and the European Union to adopt special legislation or regulation on matters such as denied boarding, flight cancellations and delays. This new form of air passenger protection has been backed up and broadened by the courts, particularly in Europe. It has been opposed by the airlines, particularly the low cost carriers. The situation today seems to have become wasteful with too much uncertainty, too many claims, and too high transaction costs for all parties involved. Lastly, electronic and digital techniques have deeply penetrated the domain of the conclusion of the contract of carriage by air. Electronically concluded contracts have now become the most common form of contracting for the non-professional traveller, that is the individual air transport user, the consumer, who contracts directly with his or her airline, using electronic and digital means to do so. These are three distinct, but interrelated issues: the contractual distribution of the air travel product; the impact of consumer law; and electronic contracting (e-commerce). Each issue will be addressed in a separate part of the article. It seems that the time has come to try to forge a new contractual deal between airlines and their passengers: global, transparent and cost efficient. This article attempts to make a contribution to this beginning debate.