Volcanic dust – don’t complain make a claim

by Kidd Rapinet on May 11, 2010

Local private clients and consumers are busily looking at what they might recover financially for ruined holidays following the volcanic eruption in Iceland and the many displaced passengers whose holiday and work plans were spoiled.

Danny Hockman, a partner in Kidd Rapinet’s High Wycombe office says:

“If you are unsure of your legal rights, contact us for advice. Many of the airlines have not properly followed the law in this area. Under EU regulation 261/2004 article 9 airlines have an obligation to provide accommodation and food for those stranded, subject to jurisdictional limits. Article 9 is not negated by ‘exceptional circumstances’. This is why Ryanair and others backed down over the issue. However, there is no mention of what standard of accommodation must be provided, nor what type of food, nor does article 9 state any cash must be paid. If the airline did not provide you with accommodation and you asked, then you may be able to recover the cost as they breached article 9 but take advice as this depends on where and when, and this is an EU regulation only.

“However, article 7 (cash compensation) is negated by such exceptional circumstances. Those not looked after as they should have been, who have receipts (where the regulation applies), may have claims for breach of article 9 and as a PR exercise some airlines may choose as a concession to compensate for more than legally they need to, as indeed some insurers have announced, although to avoid setting a precedent they would be wise to choose their words carefully in any press release.

“Airlines which did offer accommodation and food may have satisfied article 9 and be in a good position to refuse some applications. Article 4(3): ‘If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 [but not if exceptional circumstances, as here] and assist them in accordance with Articles 8 and 9.’ If you paid by credit card, it is also worth checking if you have any recourse via the card company. It is likely insurers and airlines/travel agents will pass the buck between them but ultimately will be pinned down, as long as there is a breach of the regulation of course. If they offered 8 nights in a 2 star hotel and instead the holidaymaker spends £3k on taxis across Europe to get home within 48 hours, it is unlikely that the £3k will be claimable from the airline.

“A second issue is employees. If they could not return to work from holiday, in most cases employers do not have to pay them. However, check employment contracts carefully. Some employers can deal with this by requiring the employees to take the time as holiday (or possibly unpaid leave at the employer’s discretion).

“Thirdly is the issue of commercial contracts. Icelandic ash clouds and their fallout are causing many supply chain issues. These may in some cases amount to ‘force majeure’. However, under many English law contracts there would be an obligation to try alternative routes to transport goods before a clause excusing non-performance would arise, but it is certainly a good idea on a regular basis to have standard contract clauses re-examined to protect you better against future disputes.”

Contact Danny Hockman on 01494 535321 for more advice if you are battling against an airline or insurer.