A charter flight was delayed: what to do in this case

Chairman of the Council of the Moscow branch of the Russian Consumer Association.

It doesn't matter what flight you take. In case of delay, each passenger has the right to receive a certain range of services for the duration of the delay, payment of compensation and compensation for losses in full. The only difference is the amount of compensation and the terms of its payment, which depends on the country of departure and arrival, as well as the location of the airline.

If your flight is delayed (regardless of the type of transportation),
ask the airline staff to mark the flight delay on your ticket and issue you a certificate indicating the reason for the delay.
Both documents will be proof of the validity of your claims in the future.

The air ticket, certificate and boarding pass must be kept until the carrier meets your requirements.

Compensation for domestic transportation (in Russia)

or international, to countries outside the European Union.
In this case, the amount of compensation is established by Art. 120 of the Air Code of the Russian Federation and is 25% of the minimum wage for each hour of flight delay, but not more than 50% of the ticket price.

To receive compensation, you must, within 6 months from the date of the flight delay, contact the airline with a written claim (clause 4 of article 124, subclause 4 of clause 1 of article 126 of the RF CC), in which you must indicate the following:

• name of the carrier
  (legal entity), company name of the airline, your full name, residential address, contact phone number, email address;
• the essence of the situation
  (flight number, departure city and airport, departure time indicated on the ticket, actual departure time, number of hours of delay);
• requirement for payment
  of compensation and the amount with calculation (with reference to Article 120 of the Criminal Code of the Russian Federation);
• list of attached documents
  (copies of air ticket, boarding pass, certificate of flight delay);
• your signature,
  full name and date.

You can submit a claim directly at the office (representative office) of the airline, requiring that your copy be stamped with a delivery mark and the seal of the carrier organization.

If you refuse to sign, send another copy by registered mail with acknowledgment of receipt and a description of the contents.

Having received a claim, the carrier is obliged to consider it within 30 days and notify the passenger of the decision made.

How to get compensation for a delayed flight

Flight was delayed. What to do?

In Russia, flight cancellations affect on average more than a thousand passengers every day. This data was provided by AirHelp. In total, the cancellation of flights in 2021 affected almost 360,000 Russians. That is, the problem is quite common, and any passenger can encounter it. Lawyers advise immediately, as soon as a delay is announced at the airport, to contact an airline employee for clarification. The employee is required to provide the reason for the delay or cancellation of the flight, the approximate time of departure if the flight is delayed, and keep informed of all changes.

What is a passenger entitled to?

• drinks after 2 hours of delay, hot meals after 4 hours;
• 2 phone calls or 2 emails after 2 hours;
• mother and child room, if one of the passengers is a child under 7 years old;
• hotel if the difference between the canceled and another presented flight is 8 hours during the day or 6 hours at night;
• free transport to the hotel and back;
• free luggage storage.

clause 99 of the Federal Aviation Regulations

A passenger on a delayed flight can also count on a monetary payment. He has two options: refuse the flight and return the cost of the unused portion of the ticket, or demand compensation for losses, fines and moral damages.

In the first case, you can get money even for a non-refundable ticket, says Elena Soplina, leading lawyer at INTELLECT (INTELLECT) INTELLECT (INTELLIGENCE) Federal rating. group Digital economy group Intellectual property (including disputes) TMT group (telecommunications, media and technology) 13th place By number of lawyers 25th place By revenue per lawyer (more than 30 lawyers) 36th place By revenue Company profile. To do this, you need to put a mark on your boarding pass or obtain a document confirming the flight delay from the airline staff. And then hand it over (if there is an airline representative at the airport) or send an application for an involuntary return on the carrier’s website or by mail. Documents confirming the flight delay must be attached to it.

In most cases, the issue of refunding the ticket price is resolved promptly, the airline approves the amount and sends it to the passenger’s account.

Elena Soplina, leading lawyer INTELLECT INTELLECT Federal rating. group Digital economy group Intellectual property (including disputes) TMT group (telecommunications, media and technology) 13th place By number of lawyers 25th place By revenue per lawyer (more than 30 lawyers) 36th place By revenue Company profile

Get compensation

The situation is more complicated with obtaining compensation for losses, fines and moral damages, Soplina believes. As with ticket refunds, you must first contact the airline. Pre-trial procedure is mandatory; without it, the statement of claim may be returned or left without consideration.

The more competently the claim is drawn up, the greater the chances that the company will pay compensation, says Olga Turenko, lawyer at AK Borodin and Partners Borodin and Partners Federal Rating. group Dispute resolution in courts of general jurisdiction group Criminal law. She advises to indicate everything in as much detail as possible: your personal and contact information, dates of purchase of tickets, flight number, departure dates, departure times (planned and actual), amount to be compensated, account details where funds need to be transferred. It is important, according to the expert, not only to list all the facts, but also to confirm them.

Dmitry Kulikov, lawyerAdvocate Bureau "A2" Law Office "A2" Federal rating. group Land law/Commercial real estate/Construction group Arbitration proceedings (major disputes - high market) group Corporate law/Mergers and acquisitions Company profile, believes that the best evidence will be a certificate of delay, which is issued by the airline representative at the airport at the counter. But the court, he said, will take into account any documents. Yakov Prisyazhnyuk, senior lawyer of the Bureau of Lawyers "De Jure" Bureau of Lawyers "De Jure" Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Dispute resolution in courts of general jurisdiction group Bankruptcy (including disputes) group Insurance law group Criminal law group Tax consulting and disputes (Tax disputes) group Family and inheritance law group Financial/Banking law group Land Law/Commercial Real Estate/Construction 12th place By number of lawyers 14th place By revenue 19th place By revenue per lawyer (more than 30 lawyers) Company profile, advises to save as much written evidence as possible: ticket with a note about flight delay, boarding passes with departure and arrival times flight, as well as all documents confirming additional expenses. For example, if you had to pay for the hotel at your own expense, you need to attach a receipt. Turenko recommends taking screenshots of the message about the flight delay and providing them to the court. It is also important to attach to the claim a copy of the complaint sent to the company and a copy of the response.

Kulikov says that many airlines pay at the claim stage, although some refuse, even when they are at fault: “They hope that the passenger will not go to court.” Prisyazhnyuk believes that most cases that go to court are those in which the air carrier is likely to win.

Different amount of compensation

The amount of compensation will depend on what kind of flight it was: domestic or international. In the first case, the norms of the Air Code are applied, in the second - the Montreal Convention; in April 2017, Russia ratified its provisions, and since that time, Russian air passengers on international flights have received enhanced protection. There is also regulation in the European Union.

The collection procedure for international and domestic flights is not fundamentally different, Turenko believes. Unless you may need to file a claim in the carrier’s national language.

If we talk about the provisions of Russian and European standards, they are largely similar. Art. 5 EU Code and Art. 794 Civil Code, Art. 795 of the Civil Code indicate that the airline is to blame for a flight delay if:

• the crew or board is not ready for the flight;
• errors were made in the flight schedule;
• a passenger is denied boarding (so-called overbooking, when the number of tickets sold for a flight exceeds the number of seats on the plane);
• The flight was canceled due to unprofitability.

Prisyazhnyuk continues that national and international law are also in agreement on the issue of releasing the carrier from liability to the passenger. Thus, as a general rule, the carrier is released from liability if he proves that the flight delay was caused by force majeure (Article 19 of the Montreal Convention, Article 401 of the Civil Code, Article 120 of the Civil Code).

A force majeure circumstance is an extraordinary and unavoidable circumstance under the given conditions.

Art. 202, 401 Civil Code

These are circumstances that the carrier could not have foreseen and which are beyond his control. For example, natural disasters or weather conditions, wars and strikes, flight restrictions initiated by the state. Closing borders due to a pandemic is also a force majeure event.

Practice in favor of air carriers

Extraordinary and insurmountable circumstances exclude liability for flight delays. Thus, in case No. 2-188/2017, an air passenger tried to recover almost 32,000 rubles from the carrier. (material damage, compensation for moral damage and a fine for late delivery of a passenger). He explained his demands by the fact that the plane's departure was delayed by almost nine hours. Because of this, he missed another flight that was supposed to take him on vacation. As a result, he arrived at the hotel only a day later and instead of seven days he was able to rest for only six. The airline claimed that the flight was delayed due to bad weather conditions. The Avtozavodsky District Court of Nizhny Novgorod came to the conclusion that “adverse meteorological conditions” are force majeure circumstances. The first instance decided that in this case the carrier is exempt from liability. The court rejected the passenger's claim. The decision was also strengthened by the appeal.

Airlines vs passengers: six court cases

Although fog or strong wind are serious arguments for ships, they should not give up, Soplina believes. She recommends that the plaintiff find out the weather minimums for a specific crew, aircraft and even airfield (everyone has their own).

Soplina says that in order to avoid liability, air carriers often refer in court to technical acts allegedly confirming the malfunction of the aircraft on the day of the flight delay. But a technical malfunction can also occur due to the fault of the carrier, for example, failure to timely undergo a technical inspection of the vessel. Therefore, the passenger should carefully study the evidence presented and, if necessary, involve specialists or experts, Soplina is sure.

Practice in favor of the passenger

The flight on the Omsk-Moscow route was delayed, causing one of the passengers to miss the connecting flight to Bordeaux (France). He had to buy new tickets. He tried to recover damages (46,000 rubles), compensation for moral damage (25,000 rubles), penalties (177,000 rubles) and a fine from Ural Airlines. The carrier insisted that the flight was delayed because the plane arrived late from a previous flight and a malfunction was being fixed on it - a decrease in hydraulic fluid level. But the court rejected these arguments: the defendant did not prove that the breakdown was serious and could threaten the life and health of people. As a result, almost 84,000 rubles were recovered from the airline in favor of the client, including the cost of new tickets (case No. 2-391/2020, the decision came into force).

The Supreme Court of Tatarstan came to a similar conclusion in case No. 33-6809/2015. He pointed out that the court was not presented with indisputable evidence of a technical malfunction of the aircraft and the cancellation of the flight for this reason. The Saratov Regional Court, considering case No. 33-8479/2015, came to the conclusion that the technical malfunction of the aircraft cannot be attributed to force majeure circumstances.

€1,600 instead of 700 rubles.

lawyer sued for seven-hour flight delay

Lawyer Vladimir Mamontov shared his experience in collecting compensation under EU regulations. In case No. 33-37248/2018, he managed to sue the airline for € 1,600. In 2021, Mamontov bought a ticket to Greece for four people. It included a flight from Moscow to Heraklion and back. But due to the late arrival of the plane, the return flight was delayed by almost seven hours. Then Mamontov turned to North Wind LLC with a claim: he asked to pay each of the passengers €400 (according to EU regulations for delays on flights over 1,400 km one way). The airline only offered compensation in the amount of 175 rubles per passenger (in accordance with the Air Code). But the court decided that the family was still entitled to payments under EU regulations. But in this case, the provisions of the law on the protection of consumer rights are not subject to application, that is, one cannot yet count on penalties, fines and compensation for moral damage. The Ostankino District Court of Moscow recovered €400 in favor of each family member. The appeal upheld this decision.

Such disputes are rare, Turenko says. According to her, the practice of collecting compensation provided for by EU regulations is only at the formation stage. This also applies to compensation payments for delays in international flights.

Passengers do not turn to the courts for compensation en masse, so it is not surprising that in just over three years (Russia ratified the Montreal Convention in 2021), judicial practice is only beginning to take shape and is not extensive.

Olga Turenko, lawyer Borodin and Partners Borodin and Partners Federal rating. group Dispute resolution in courts of general jurisdiction group Criminal law

In general, Turenko admits that the likelihood of getting paid for a flight delay is low. But there are still successful examples in practice. In such disputes, Soplina advises to clarify why a reserve aircraft was not provided, whether other aircraft took off and landed during the flight delay, and whether the airfield was open for the reception and departure of aircraft.

To recover damages, the passenger must prove:

• existence of an air transportation agreement (tickets, invoices, acts, payment orders, etc.);
• improper performance of transportation duties;
• presence and size of losses (tickets, payment orders);
• the presence of a cause-and-effect relationship between the flight delay and losses;
• compliance with the claims procedure (claims, correspondence of the parties, notifications).

Tatyana Matsukova, lawyer at Law Firm Legal Legal Regional rating. group Antimonopoly law (including disputes) group Labor and migration law (including disputes) group Arbitration proceedings

• Anastasia Sinchenkova

If refused

You have the right to go to court.

In the claim, in addition to demanding payment of compensation for the flight delay, you also have the right to demand recovery from the airline of compensation for moral damages and a fine in the amount of 50% of the amount that will be awarded by the court for refusing to satisfy your claims on a voluntary basis (in accordance with Articles 13 and 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”), as well as legal costs incurred by you.

If a flight delay occurs due to circumstances beyond the control of the carrier (force majeure circumstances), or due to the elimination of an aircraft malfunction that threatens the life or health of passengers, then in this case the airline is released from the obligation to pay compensation to passengers. However, the occurrence of such circumstances must be proven by the carrier.

What does the law say about flight delays?

– it doesn’t matter whether it’s a charter or a regular flight – it doesn’t matter whether it’s a top airline or the wildest low-cost airline

Your rights are always the same and they are determined by local legislation: in Europe - EC Regulation No. 261/2004, in Russia - Federal Aviation Regulations and the Air Code. Of course, we must take into account that some airlines put codes on everything and spun them in all places. Let's remember Pobeda, which for years violated the rules regarding the transportation of luggage and did not get anything for it, and then everything was rewritten to suit it.