Passenger rights: Overbooking

2012-09-10 08:20

Your bags are packed, itinerary perfectly planned, accommodation booked, ticket purchased and printed out, person on the other side ready to pick you up, in short everything's in place for a perfect trip.

Until the polite attendant behind the check-in counter drops the bomb: "Sorry, the flight is full."

You tell her there must be some misunderstanding, as you have a ticket... the one she's holding in her hand right now. "I'm really sorry, but the flight is full," she says.

While this scenario doesn't happen all that often, there is a chance that at some point you may get bumped off a flight even though you've purchased a ticket and have it in hand.

According to Erik Venter, CEO of Comair Limited, overbooking is a necessary evil for all airlines and something of an industry standard. "In an effort to ensure we can keep our prices low, we follow global practices and use overbooking to ensure our flights fly as full as possible. We are however very strict on our overbooking numbers and a very small percentage of our customers may be effected by this."

He explains that on the average kulula flight, using a Boeing 737-800 with 189 seats, they do not overbook more than 5% (8 seats altogether) in off-peak season and no more than 1% during busy times like school holidays and weekends. On British Airways the numbers are roughly 2-3 seats during off-peak periods.

Venter is very clear about the fact that it's not a strategy they implement lightly. "We do offer compensation where necessary and always assist our customers by putting them on the next available flight, at no charge."

Even though the chances that you would ever get ‘bumped' from a flight are pretty slim, we chatted to Burton Phillips, associate at Norton Rose South Africa, to find out what your consumer rights are when it comes to overbooking.

1. What rights does the consumer hold if they are affected by an airline overbooking flights?

When an airline has overbooked a flight and this results in a consumer who has made and paid for a booking on that flight not having a seat, the Consumer Protection Act (CPA) gives such a consumer the right to receive a refund of the amount paid for the booking, plus interest at the prescribed rate (15.5%). Interest will be calculated from the date on which the amount was paid by the consumer until the day the consumer is refunded.

The consumer also has the right to receive compensation for the costs incurred as a result of the overbooking. However, this only includes costs which are directly incidental to the airlines failure to accommodate the consumer. For example, if a consumer is ‘bumped' off a flight and then has to book into a hotel for the evening in order to catch the next available flight the following morning, the cost of the hotel could be claimed from the airline.

2. Do airlines actually reserve the right to overbook flights?

Although overbooking is a useful method of providing for flight cancellations and generally only comes to light if there are no cancellations and a consumer brings it to the attention of the airline, airlines cannot sell more seats than they have. The CPA stipulates that accepting payments for something that does not exist is not lawful.

3. What should airlines generally offer as compensation to passengers who have been ‘bumped' from a flight?

Airlines should generally offer consumers an alternative but comparable flight. If the airline offers the consumer a comparable flight and the consumer accepts it or unreasonably refuses to accept it, the airline will not have to refund the consumer for the booking.

4. What would count as a comparable flight?

Whether an alternative flight is comparable to the booking made by the consumer must be determined by taking into account factors such as the time of the alternative flight, whether the flight is direct or indirect, whether business or economy class and the inconvenience to the consumer.

This is an objective test and a consumer may not unreasonably refuse to accept an alternative but comparable flight.

For example, if a consumer is due to fly direct to Mumbai at 17:30 in business class, it could be considered reasonable for the airline to offer the consumer an alternative, business class flight at 19:00 that same evening.

5. If they fail to offer any sort of compensation, or offer compensation that does not suit a
passenger, what steps can the passenger follow to make sure they are not done in?

If they fail to offer any sort of compensation, the passenger can lodge a complaint with the National Consumer Commission. Although the complaint might take some time to resolve considering the current practice at the Commission, this process is free and may result in the airline being served with a compliance notice if the Commission finds that the airline has contravened the Act.

In this case they would have to refund the consumer with interest up to the date of the refund.

If the compensation does not ‘suit' the consumer, however, they will have no claim. A consumer is only entitled to a refund or a comparable alternative.

6. What rights do consumers have when it comes to the cancellation of an advance booking on their part? And what rights does the supplier hold in this regard?

A consumer has the right to cancel an advance booking at any time, subject to a reasonable penalty being imposed by the supplier.

A supplier may also require the consumer to pay a deposit to secure the booking, which will be forfeited if the booking is not honoured.

However, the penalty to be imposed by the supplier must be reasonable taking into account the relevant factors. For example, a standard penalty of R1000 regardless of when a flight is cancelled would not be acceptable.

7. If you cancel a flight booking due to serious illness and hospitalisation or the death of the
person who would have benefitted from it, can the supplier charge a cancellation fee?

The CPA specifically states that a supplier may not charge a cancellation fee if the cancellation is due to the hospitalisation or death of the beneficiary. This provision may prove to be problematic in future as it appears to exclude serious illness without hospitalisation.

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