The Kenya Civil Aviation Authority Aviation Consumer Protection Section operates a complaint handling system for consumers who experience air travel service problems’ including issues regarding service provision by other stakeholders in the industry. It attempts to resolve travelers’ complaints about air carriers and other service providers in a manner consistent with the carriers’ tariffs, the Kenya Civil Aviation Regulations (KCARs) and related regulations and, where applicable, international conventions (the carrier’s legal obligations).
Denied Boarding, Cancellation and Delays:-
Some countries have regulations which set out passenger rights for denied boarding. In Kenya we are in the process of introducing regulations governing this inconvenience to air travelers.
In practice, many airlines will provide refreshments or overnight accommodation for passengers whose flights have been cancelled or are subject to a long delay. Some passengers may be transferred to other flights. But very few will voluntarily pay compensation.
Nevertheless, under provisions in the Montreal Convention an airline is liable for "damage occasioned by delay" up to a limit of 4,150 Special Drawing Rights (SDRs). However, an airline may not be liable if "it proves that it and its servants and agents took all measures that could reasonably be required to avoid the delay or that it was impossible for it or them to take such measures". In practice, any payment that an airline is prepared to make for a delay will at best be reimbursement of expenses that it accepts were directly and necessarily incurred as a result of the delay such as meals or overnight hotel accommodation. Airlines generally do not accept any liability for inconvenience, stress or any consequential losses arising from the delay, unless they are required to do so as a result of court action.
When a flight is cancelled, an airline is contractually obliged to provide alternative transportation, not necessarily by air, or a refund. But most airlines’ conditions of carriage specifically exclude liability for any consequential losses. In theory, it should be possible to argue that a cancellation is the same as a delay for the purposes of making a claim under the Montreal Convention because of the Convention simply refers to "delay in the transportation by air" and a passenger can be delayed as a result of cancellation. But in practice, the two are generally taken to be different.
Baggage Problems:-
Unfortunately, baggage does not always arrive at its intended destination. Or, if it does, it might turn up damaged or with something missing. When this happens, an airline is liable under the Montreal Convention. But the Convention puts a maximum limit on the airline’s liability at 1,000 Special Drawing Rights (SDRs) per passenger. It also puts time limits on making claims for compensation.
Other categories of baggage problems are delayed baggage (less than, or more than 21 days), lost baggage, damaged baggage, lost or stolen items. The reference to 21 days is taken from the Montreal Convention, and is the period of delay after which an airline must treat a bag as lost. Generally speaking, this makes a difference to how airlines settle claims. There are no set rules for how airlines must assess baggage claims. For delayed baggage, some airlines offer immediate one-off payments at a set amount to cover emergency purchases (such as toiletries or underwear). Some will pay a set amount per day up to a maximum number of days. And others will not make cash payments at the time, but prefer to reimburse expenditure on essential items on seeing the receipts. But the general principle is to cover essential expenditure resulting from the delay to delivery of the baggage.
Injury and Death in Accidents:-
The Montreal Convention regulates the liability of the airlines in case of death or bodily injury of the passengers. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Thus, once it is clear that the ill-fated plane was doing domestic or international flight passengers who want to obtain compensation for the damages sustained must try to do so under the Convention. In other words, when the Convention is applicable passengers are not entitled to maintain an action for damages under domestic law. Two things must be proven in order to achieve compensation. First of all, that which happened on-board the plane (or while embarking or disembarking) and caused the damage was an "accident". Secondly, that the passenger suffered "death" or "bodily injury". The interpretation of the term "death" is rather straightforward and has not created any jurisprudential controversy. However, the terms "accident" and "bodily injury" are far more ambiguous and have been interpreted by the courts in different ways.
More information on these and other issues regarding the rights of the air traveler can be found on a booklet launched by KCAA Aviation Consumer Protection Section on 21st November, 2008.
