Contracts of carriage: Deciphering murky airline rules
So far 2017 is the Year of the Airline Passenger Service Debacle — and we’re just hitting the peak summer season, when the fun really starts. The combination of new and higher fees, record loads, tighter seats and shorter tempers underscores your need to stay calm. Plus knowing your rights, even when those rights are quite lacking.
Unlike the European Union, which provides all passengers (even those flying on U.S. carriers) a uniform set of Air Passenger Rights, in the United States we’re at the mercy of a patchwork quilt of dense, consumer-unfriendly documents known as contracts of carriage. Sometimes known as conditions of carriage or tariffs, they’re your primary defense when your flight is delayed or canceled, your baggage is mishandled or you’ve been involuntarily bumped.
It’s worth noting that in recent months as airline service meltdowns have gone viral, several of these contracts have been revised — though not nearly enough. Make no mistake: While there are problems and omissions with all domestic airline contracts, there are significant differences among them, and some are slightly better than others.
One-sided pacts
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Attorneys call these contracts of adhesion, aka “take-it-or-leave-it” contracts. In other words, input your credit card and you agree to all 51 printed pages of United’s binding clauses or all 69 pages of Virgin America’s document. Don’t swipe, and you don’t fly. Such contracts can be found on the airlines’ sites, if you search hard enough.
More:When do airline passengers get their bill of rights?
As I noted in a previous column about passengers’ rights, there are several problems with this system:
• Each domestic airline publishes its own contract of carriage, so there’s no industry consistency
• Even attorneys have trouble dissecting the vague language embedded within
• Finding these documents on airlines’ websites is a challenge, and hard copies have become rare
• Not all airline employees — let alone outsourced airline representatives — are familiar with interpreting these policies
• Federal preemption seriously curtails passengers from redressing grievances by any means other than federal courts
In May I testified on behalf of Consumers Union at a Congressional hearing on the state of airline customer service, and during those 4.5 hours of marathon testimony the conversation focused on these contracts. I asserted these one-sided documents are designed to protect airlines, not passengers; they’re also subject to change whenever it suits airlines.
Think they’re not one-sided? I cited this clause, from Delta: “Delta’s published schedules are not guaranteed and form no part of this contract. Delta may substitute alternate carriers or aircraft, delay or cancel flights, change seat assignments and alter or omit stopping places shown on the ticket at any time. Schedules are subject to change without notice.”
Imagine if such conditions applied to the party of the second part — you. Think an airline would be okay with you “not guaranteeing” your presence or “changing without notice” your schedule? Quick! Name another industry that takes your money yet doesn’t even guarantee you the product you already purchased. Not so easy, is it?
There are additional problems inherent in these agreements; consider these issues.
Maybe, maybe not
Here’s what Alaska’s contract promises — or rather, doesn't promise — if your flight is canceled: “hotel accommodations may be provided.” It wasn’t always like this. In digging through old research, I found a 1985 article in Consumer Reports Travel Letter that detailed airline responses to a comprehensive survey on passenger accommodations. Sure, there were anachronisms (free long-distance phone cards and free telexes overseas!), but the publication detailed uniformity in policies: “Airlines also usually pay for meals in airport restaurants if the delay lasts through a normal meal time.”
The airlines decide
Many policies are arbitrary. Here’s Virgin America’s Voluntary Denied Boarding policy: “Guests who are voluntarily denied boarding will be offered accommodation on a case-by-case basis, to be determined in the sole discretion of Virgin America Team Members staffing the flight.”
Mushy language
Reading through current contracts, it quickly becomes apparent that key terms are subject to interpretation. To whit:
• American’s definition of "reasonable": “[W]e will provide reasonable overnight accommodations, subject to availability.” And “American will make every reasonable effort to ensure that essential needs…are met.”
• United’s definition of "extensive": “UA will provide snacks and/or food and beverage vouchers in the event of an extensive delay caused by UA.”
• JetBlue’s definition of "promptly": “Carrier strives to provide credit card refunds promptly.”
You have to ask
Several contracts offer passengers amenities and options — but as United phrases it, “upon the passenger’s request only.” So the burden is on you; if you don’t ask, you won’t receive.
Forces not so major
What the airlines term “force majeure” (or “Act of God”) exclusions can bar you from compensation, alternative travel or amenities when things go wrong. These lists have grown over the years, to include not just severe weather and natural disasters but also terrorism, riots, labor actions, “governmental regulation” and a host of other causes. Several years ago, Southwest even included “mechanical difficulties” in its list, until it was amended to read “mechanical difficulties by entities other than Carrier.”
Confusion reigns
Back in March, United’s “leggings-gate” incident quickly went viral, but some news reports — compounded by United’s corporate tweets — failed to note those two passengers denied boarding were traveling on non-revenue “buddy passes” and such restrictions don’t apply to paying customers. But legitimate questions about traveling attire still exist. As Bart Jansen noted here in April, “United Airlines can remove passengers from flights for dozens of reasons.” So can all airlines; take Southwest’s contract, for example. The airline’s “may refuse to transport” clause includes clear parameters for being barefoot, intoxicated or under the influence of drugs, or unable to occupy a seat with the belt fastened. But what about clothing that is “lewd, obscene or patently offensive”? For years, news reports have detailed passengers kicked off Southwest flights (one disembarked customer later posed for Playboy), indicating such clauses remain ambiguous in the eyes of many beholders.
More bad news
Some contractual language is omitted entirely; Southwest, for example, doesn’t even mention meals, hotels or ground transportation in its “Service Interruptions” section. On the other hand, Frontier’s contract is quite blunt in conveying bad news about delayed, misconnected or canceled flights. Passengers will be carried on another Frontier flight but not on another carrier, refunds for unused ticket portions must be requested, and this “shall be the limit of Frontier’s liability.” Likewise, Allegiant clearly spells out the following: “Claims for damaged, lost, forgotten or stolen carry-on baggage will not be accepted.”
Deserved kudos
Thankfully, some U.S. airlines codify pro-consumer policies:
• Hawaiian’s “Amenities/Services for Delayed Passengers” clause is written in simple, clear language, and details how costs for hotels, meals, ground transportation and phone calls will be assumed by the airline for delays exceeding four hours.
• Southwest’s ticketing policies are refreshingly comprehensible. Consider: “Ticket changes and exchanges within the same reservation will result in the initial Ticket being applied as the form of payment for the new ticket. Our unrestricted fares are fully refundable if canceled and then refunded instead of exchanging or changing your Ticket.”
• For departure delays, JetBlue spells out compensation amounts in helpful hourly increments.
• Even bad news can be presented clearly. Take Spirit: “All Spirit fares and optional services are purchased as non-refundable; however, a refund will be allowed if a reservation is canceled within 24 hours of initial booking, provided the reservation was made seven days or more prior to the flight’s scheduled departure.”
• In an industry notorious for opaque policies, Southwest also is quite specific in spelling out who gets bumped first in its Denied Boarding Priority Rules: “Carrier’s boarding priority is established on a first-come, first-served basis in the order boarding positions are secured ... with no preference given to any particular person or category of fares.”
Expert advice
Noted travel attorney Al Anolik has long criticized airline contracts. In a paper published by the American Bar Association in 2013, Anolik referred to the “completely one-sided, adhesive Contract of Carriage” and stated: “This overwhelming document, full of legalese and every imaginable limitation of liability, is a textbook contract of adhesion.”
That said, Anolik still believes it’s important for consumers to familiarize themselves with these agreements when things go wrong. He advised: “When problems arise at the airport, your best initial response is to go online to the carrier’s Contract of Carriage to see what your rights are under the contract.”
In 2013 the DOT required all domestic and foreign airlines marketing to U.S. customers to amend their contracts and publish Customer Service Plans online. But that doesn’t make such plans more consumer-friendly or easier to understand.
Thomas Dickerson, retired New York State Supreme Court justice and the author of Travel Law, contends that airlines are intentionally changing language to weaken passenger provisions. He says, “Contracts of carriage, like insurance policies, are written by lawyers to be read by lawyers and to protect the airline. They are not written to inform consumers. DOT should require plain English versions for consumers.”
At our hearing, several Congressional members agreed, suggesting airlines should create “Executive Summaries” of contracts. Many fliers and consumer advocates believe the only real solution is for the U.S. to establish a Passenger Bill of Rights that would provide uniform, consistent, simplified rules for all airlines. But executive summaries certainly could help. In fact, any measures that assist consumers deciphering these contracts would be quite welcome.
Bill McGee, a contributing editor to Consumer Reports and the former editor of Consumer Reports Travel Letter, is an FAA-licensed aircraft dispatcher who worked in airline operations and management for several years. Tell him what you think of his latest column by sending him an email at travel@usatoday.com. Include your name, hometown and daytime phone number, and he may use your feedback in a future column.