Articles & News
The rights Passenger in event of denied boarding and of cancellation or delay of FlightsThere is not any particular legislation governing the rights of passenger in the event of denied boarding and of cancellation or delay of flights similar to Regulation (EC) No. 261/2004 other than Turkish Civil Aviation Code and Commercial Code’s provisions on carriage in Turkey.
Yasar Ozturk
Attorney at Law
ozturkylaw@ttmail.com
Civil aviation operations and liability of operators and owners are regulated by Turkish Civil Aviation Code(TCAC). The provisions of international conventions and treaties acted by Turkey will be applicable in case of absence of applicable provisions in the said Code, and the provisions of Turkish Commercial Code will be applicable in case there should not exist any applicable provision in the said international conventions.(Art.106 of TCAC). Turkey ratified Warsaw Convention 1929, The Hague Protocol 1955 and Montreal Protocol No.4 amending Warsaw Convention. Turkey has not yet ratified Montreal Convention1999. Hence, we must view the the rights of passenger in the event of denied boarding, cancellation and delay of flights under Turkish Civil Aviation Code, Warsaw Convention and Turkish Obligations Code.
Denied boarding
There is not any specific provision regarding the rights of passenger and obligations of the carrier in case of denied boarding due to overbooking either in TCAC or Turkish Commercial Code (TCC). As Warsaw Convention 1929 does not contain any specific provision on denied boarding, the matter will be resolved by the general provisions of Turkish Obligations Code (TOC) applicable to the breach of contract and default in performance of the obligations arising from the air carriage contract. Turkish Courts evaluate the matter on the grounds of tort when the passenger is exposed to grief or distress caused by the denied boarding. Further beyond this has been accepted as an assault to the individual rights of the passenger by the first instance courts and by the Supreme Court of Appeals and the claimant passenger has been granted to moral compensation.
Cancellation or delay of flights
Article 122 of Turkish Civil Aviation Code states that the carrier shall be liable for damage occasioned by delay in the carriage by air of passengers , baggage or cargo. This is a complete adaptation of Article 19 of Warsaw Convention. Air carrier is held liable for damage occasioned by delay caused either by overbooking or any other action or negligence or fault of air carrier substantially based on Article 122 of TCAC.
There is not any distinction of long and short delays in the national legislation. Therefore in case of a delay whether short or long, if a damage occurred affecting the passenger, liability of carrier can be in question. In practice, a reasonable length of delay is sought for liability of the carrier. Cancellation of flight without any valid excuse which is legally acceptable is assumed as non performance of obligation entitling the passenger for a remedy to his/her loss and damage caused by cancellation and moral indemnity in case the requisites have come to existence.
Compensation granted for passenger in case of denied boarding, cancellation and delay of flight is assessed by reference to actual costs incurred by passenger like accommodation, transportation, feeding, communication and loss of business (i.e. missing a business meeting, court hearings, appointment with patient, an auction, connected flight). However, moral compensation is in discretion of judge and determined its nature and amount taking into account the circumstances and degree of the fault.
Turkish Supreme Court approved Istanbul 9th First Instance Court of Commerce awarding moral compensation to the passengers who were obliged to fly on a later flight because of denied boarding due to overbooking on the confirmed flight stating as follows ;
“…it was ruled by the court for the reasons of such as although main reason to prefer air travel is to travel fast and the defendant carrier had gross fault in causing the plaintiffs not to travel on the confirmed time by selling tickets more than aircraft’s capacity of seats aiming to ensure the fullness of all seats and plaintiffs were obliged to fly on a flight scheduled for a later time with 2 hours and 20 minutes delay having no fault and this has been construed as an obvious assault to plaintiffs’ freedom of travel and individual rights, therefore defendant should pay ………TL moral compensation to plaintiffs”
The General Board of the Civil Panels of the Supreme Court of Appeals ruled that ;
“…carrier is liable for passenger’s damage arising from the delay as well as for the damage given to luggage or goods. Carrier shall be liable for the damage occasioned by delay if caused by the carrier in the carriage of passengers, luggage or goods…..Under those circumstances, plaintiff’s claim should be investigated and determined whether the requisites of moral compensation formed up by virtue of Warsaw Convention’s articles 19 and Obligations Code’s article 49 by denotation of article 98”
The sum of awarded moral indemnity was not published in above mentioned judgment of Supreme Court. But normally the sum of moral compensation for the subject cases differs between TL 500 and 1500, approx €250 and €750. Needless to say, the sum of moral indemnity is at judge’s discretion who will assess the sum by taking into consideration the position, status and other social and economic factors of of the parties and can be assessed as higher sums.
Yasar Ozturk
Attorney at Law
ozturkylaw@ttmail.com
Civil aviation operations and liability of operators and owners are regulated by Turkish Civil Aviation Code(TCAC). The provisions of international conventions and treaties acted by Turkey will be applicable in case of absence of applicable provisions in the said Code, and the provisions of Turkish Commercial Code will be applicable in case there should not exist any applicable provision in the said international conventions.(Art.106 of TCAC). Turkey ratified Warsaw Convention 1929, The Hague Protocol 1955 and Montreal Protocol No.4 amending Warsaw Convention. Turkey has not yet ratified Montreal Convention1999. Hence, we must view the the rights of passenger in the event of denied boarding, cancellation and delay of flights under Turkish Civil Aviation Code, Warsaw Convention and Turkish Obligations Code.
Denied boarding
There is not any specific provision regarding the rights of passenger and obligations of the carrier in case of denied boarding due to overbooking either in TCAC or Turkish Commercial Code (TCC). As Warsaw Convention 1929 does not contain any specific provision on denied boarding, the matter will be resolved by the general provisions of Turkish Obligations Code (TOC) applicable to the breach of contract and default in performance of the obligations arising from the air carriage contract. Turkish Courts evaluate the matter on the grounds of tort when the passenger is exposed to grief or distress caused by the denied boarding. Further beyond this has been accepted as an assault to the individual rights of the passenger by the first instance courts and by the Supreme Court of Appeals and the claimant passenger has been granted to moral compensation.
Cancellation or delay of flights
Article 122 of Turkish Civil Aviation Code states that the carrier shall be liable for damage occasioned by delay in the carriage by air of passengers , baggage or cargo. This is a complete adaptation of Article 19 of Warsaw Convention. Air carrier is held liable for damage occasioned by delay caused either by overbooking or any other action or negligence or fault of air carrier substantially based on Article 122 of TCAC.
There is not any distinction of long and short delays in the national legislation. Therefore in case of a delay whether short or long, if a damage occurred affecting the passenger, liability of carrier can be in question. In practice, a reasonable length of delay is sought for liability of the carrier. Cancellation of flight without any valid excuse which is legally acceptable is assumed as non performance of obligation entitling the passenger for a remedy to his/her loss and damage caused by cancellation and moral indemnity in case the requisites have come to existence.
Compensation granted for passenger in case of denied boarding, cancellation and delay of flight is assessed by reference to actual costs incurred by passenger like accommodation, transportation, feeding, communication and loss of business (i.e. missing a business meeting, court hearings, appointment with patient, an auction, connected flight). However, moral compensation is in discretion of judge and determined its nature and amount taking into account the circumstances and degree of the fault.
Turkish Supreme Court approved Istanbul 9th First Instance Court of Commerce awarding moral compensation to the passengers who were obliged to fly on a later flight because of denied boarding due to overbooking on the confirmed flight stating as follows ;
“…it was ruled by the court for the reasons of such as although main reason to prefer air travel is to travel fast and the defendant carrier had gross fault in causing the plaintiffs not to travel on the confirmed time by selling tickets more than aircraft’s capacity of seats aiming to ensure the fullness of all seats and plaintiffs were obliged to fly on a flight scheduled for a later time with 2 hours and 20 minutes delay having no fault and this has been construed as an obvious assault to plaintiffs’ freedom of travel and individual rights, therefore defendant should pay ………TL moral compensation to plaintiffs”
The General Board of the Civil Panels of the Supreme Court of Appeals ruled that ;
“…carrier is liable for passenger’s damage arising from the delay as well as for the damage given to luggage or goods. Carrier shall be liable for the damage occasioned by delay if caused by the carrier in the carriage of passengers, luggage or goods…..Under those circumstances, plaintiff’s claim should be investigated and determined whether the requisites of moral compensation formed up by virtue of Warsaw Convention’s articles 19 and Obligations Code’s article 49 by denotation of article 98”
The sum of awarded moral indemnity was not published in above mentioned judgment of Supreme Court. But normally the sum of moral compensation for the subject cases differs between TL 500 and 1500, approx €250 and €750. Needless to say, the sum of moral indemnity is at judge’s discretion who will assess the sum by taking into consideration the position, status and other social and economic factors of of the parties and can be assessed as higher sums.
Published by:
Author:
Publishing Date:
22.06.2009
Some Member Law Firms
M. Pavlakis – C. Moschos & AssociatesFilonos 66 & II Merarchias Str., 18535 Piraeus
Greece
www.pavlakis-moschos.gr
more...
Greece
www.pavlakis-moschos.gr
more...
Lieff Cabraser Heimann & Bernstein, LLP275 Battery Street, 29th Floor, 94111 San Francisco, CA
USA
www.lieffcabraser.com
more...
USA
www.lieffcabraser.com
more...
SELCUK & SELCUK LAW FIRMUphill Towers A1/ 17 Dereboyu Cd. Fesleğen Sk. Batı Ataşehir, 34746 Istanbul
Turkey
www.selcuk-selcuk.com.tr
more...
Turkey
www.selcuk-selcuk.com.tr
more...
Show all Law Firms
.