For decades, airline passengers have been effectively excluded from dealing with airline service problems through the court system. Due to federal preemption, the small claims and state courts are closed for any redress. And the federal courts have held that anything not explicitly covered in the contract of carriage cannot be brought before their courts.
Is that going to change? In the new world of ancillary fees?
Now, the airlines’ move toward ancillary fees and their splitting off from the air transportation costs such items as baggage fees, opens the door to taking the airline to small claims court. Officially, according to the IRS and the airlines, baggage fees are no longer taxable because they are not a required part of air transportation. This portion of the air transportation contract can, it seems, be adjudicated in small claims court. It falls outside of the limits of federal preemptions.
For years airlines have been protected from court claims by passengers because the principal of federal preemption. They may now be subject to not only payment for lost luggage but also to damages for efforts to retrieve baggage and lost time required for shopping or searching for replacement items when airlines either delay or lose checked baggage.
Airlines may be hoisted on their own petard if they lose federal preemption protection.
The airlines have been claiming federal pre-emption for decades, but recently, in contract talks and court cases regarding ancillary fees, the airlines are making claims that seem to be opening them up to a flood of consumer small claims and state court actions.
The airlines can’t have it both ways. Either ancillary fees are part of the air transportation whole or they are not and thus subject to the normal judicial processes.
Garner said American responded with an explanation that the package was not a component of an air fare – it was sold as an add-on service – and so was not subject to American’s Participating Carrier Agreement with Sabre, which called for the airline to provide its “full content” to the GDS.
It seems that the airlines want to “have their cake and eat it too.” But there is another old aphorism at work here as well — “If it’s sauce for the goose, it is sauce for the gander too.”
Added to this possible elimination of federal preemption for lost luggage, the airlines are opening a new can of worms regarding all of their ancillary fees that have “nothing to do with airline transportation.” And for the pure airline transportation issues, the Department of Transportation (DOT) is getting ready to force airlines to include their customer service plans in their contracts of carriage, which will make airlines libel in federal courts for violating their own customer service rules.
When it comes to an airlines’ legal liability vis a vis its passengers, it is going to be an interesting next three or four months as the courts determine what is considered airline travel and the DOT releases its new rulemaking.
Charlie Leocha is the President of Travelers United. He has been working in Washington, DC, for the past 14 years with Congress, the Department of Transportation, and industry stakeholders on travel issues. He was the first consumer representative to the Advisory Committee for Aviation Consumer Protections appointed by the Secretary of Transportation from 2012 through 2018.
