FlyersRights.org, the largest airline passenger organization, on October 4 filed a reply brief in its Flight Delay Compensation Notice lawsuit in the D.C. Circuit Court of Appeals against the U.S. Department of Transportation.
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The Montreal Convention, a treaty governing international air travel, guarantees passenger compensation on a quasi-no fault basis for events such as flight delays, death, injury, and baggage loss or damage. According to Article 3 of the treaty, the airlines must provide adequate notice that passengers may be entitled to compensation for flight delays.
In dismissing FlyersRights.org’s rulemaking petition, the US Department of Transportation DOT concluded that passengers are adequately informed of their Montreal Convention rights and that it did not need to marshal its authority to protect passengers by prohibiting unfair or deceptive practices.
Paul Hudson, President of FlyersRights.org, explained “The airlines only inform you that compensation may be limited, without disclosing the amount of delay compensation (up to $6450), how to obtain compensation, or that the treaty overrides any contrary provisions in an airline’s contract of carriage. The airlines bury the information in dense legalese in lengthy contracts of carriage on their websites, so that the overwhelming majority of passengers are unaware of their delay compensation rights on international trips.”
Contrary to the assertion of the U.S. Department of Transportation, Flyers Rights Education Fund, Inc. has associational standing because its members interact with the organization’s leadership, guide the organization’s activities and play a significant role in financing the organization’s activities. Further, the record before this Court demonstrates, and DOT does not appear to dispute, that at least one FlyersRights member, Leopold de Beer, suffered an injury in fact from the lack of adequate disclosure of passenger rights, under the Montreal Convention, to compensation for delay in international air travel.
On the merits, DOT contends, first, that airlines cite the literal disclosure language of the Montreal Convention in their contracts of carriage and are required to repeat the same language in notices on tickets and at ticket counters.
But this language states only that there is a treaty and that it limits the liability of airlines. The language says nothing at all about the existence or nature of any passenger rights to compensation for delay. DOT’s reliance on this language as the basis for concluding that current disclosure requirements are adequate is manifestly not reasoned.
Second, DOT argues that the evidence of consumer confusion presented by FlyersRights is insufficient. The key evidence, however, the airline contracts of carriage, which on its face obfuscates and conceals the nature of international passenger rights to compensation for the delay. DOT suggests that the relevant language has been approved by the agency and does note the existence of passenger rights. But in its decision denying the Rulemaking Petition, DOT failed to consider that the contracts of carriage do not accurately or adequately inform passengers of the nature of their rights.
More importantly, DOT simply overlooked the contradictory and confusing language in those same contracts –language with the manifest intent and effect of confusing passengers and preventing them from understanding the nature of their rights.
Finally, DOT has failed to provide any rational basis for its decision to regulate disclosure of information about compensation for lost or damaged baggage, but not for passenger delay.
For these reasons, DOT’s decision was not reasoned. It has relied on facts—language supposedly actually telling passengers about their rights—that do not exist and therefore are not in the record. And the agency has not explained what policy consideration if any, underlies its decision to allow these deceptive and misleading practices of the airlines to continue.
Click here to download the court filing with all arguments.