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11 September 2013
On June 28 2013 the Third Chamber of the Federal Civil and Commercial Court of Appeals confirmed a first instance court decision denying a passenger's request for compensation following the cancellation of his flight by Aerolineas Argentinas without sufficient prior warning.
On August 2 2007, after arriving at Ezeiza International Airport at their scheduled check-in time, Federico Blejer, his wife and their two small children were informed by Aerolineas Argentinas that the flight to New York on which they were booked had been cancelled. The company offered him and his family a rebooking on Aerolineas's next immediate flight, which was to Miami. The passengers accepted the offer.
However, after arriving back at Buenos Aires, they filed a lawsuit requesting direct and moral damages for an amount of Ps26,026 ($4,633.45). According to Blejer, the direct damages equated to the cost of the four tickets from Miami to New York (ie, the destination of their original booking). Blejer further stated that his family's final destination was in fact Toronto and since they had arrived in Miami instead of New York, the tickets to Toronto Pearsons Airport were more expensive, as Miami was 2,000 kilometres south of New York.
In response, Aerolineas Argentinas requested that the court dismiss the case, stating that the company had notified the passengers in due time and that both the claimant and his family had accepted the rebooking to another destination.
The court established(1) that Aerolineas had breached the transportation agreement signed with the passengers and further proved that Aerolineas had failed to provide them with advance notification (under Ministry of Economy Public Works and Services Resolution 1532/98, passengers must be notified of cancellations 48 hours in advance). The court also dismissed the defendant's argument involving the family's acceptance of the rebooking - according to the Civil Code, the debtor can be released from liability only by a decision made under the creditor's free will, but this was clearly affected in the case at hand.
The court stated that even though the legal case was governed by the Warsaw Convention (the Montreal Convention did not enter into effect in Argentina until 2009) and by Resolution 1532/98, a legal solution was unreachable since the Warsaw Convention did not include a solution for cancellation cases, only covering liability issues when a delay occurs.
In light of this legal vacuum, the court applied Article 150 of the Aeronautical Code, which states that whenever a cancellation occurs, the passenger has the right to receive:
According to the court, in the case at hand, the unused part of the ticket to be refunded was the distance between Miami and New York (the original's ticket destination), but as the family had continued their trip to Toronto directly from Miami, the actual direct economic damage to the passengers was not proven. Furthermore, because Blejer had not requested a proportional refund of the unused part of the ticket, due to the congruency principle, the court was unable to give it to him.
For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991), fax (+54 11 4311 0852) or email (firstname.lastname@example.org).
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