If your baggage is delayed, are you entitled to a refund of the airline fee?

If your baggage is delayed, are you entitled to a refund of the airline fee?

In this week’s article, we discuss the case of Hickcox-Huffman v. US Airways, Inc., 2017 U.S. App. LEXIS 7847 (9th Cir. 2017) in which “Hayley Hickcox-Huffman (plaintiff) bought a ticket on US Airways to fly from Colorado Springs, Colorado, to San Luis Obispo, California. She checked one bag. Airlines have different policies on charging for baggage, and the same airline may change its policy from time to time. Some charge nothing for checking one bag, some charge fees in varying amounts. US Airways charged (plaintiff) $15 to check her bag. Her bag did not show up on the baggage carousel and US Airways delivered it to her the next day. (Plaintiff) filed a putative class action to get her $15 back (and) seeks to represent ‘[a]ll US Airways passengers traveling domestic flights who were charged and paid a baggage fee or fees, and whose bags were delayed or lost, and who upon notifying defendant of the delay or loss did not receive a refund of their baggage fee(s) from US Airways’”. Does the plaintiff have a case?

Terror Targets Update

Tonic For Terror: Drink Up, Please

In Shaftel, How to Ease Travel Anxiety in an Era of Terror: Travel More, nytimes.com (6/8/2017) it was noted that “Every time any anxiety about travel seems to have subsided, new horrific and deadly terrorist attacks in Britain, like the one at London Bridge on Saturday, close to where my wife and I once lived, and the bombing just days before at the Manchester Arena, have brought my worries back to the fore, especially since we off to London in a couple of weeks. But while I can’t seem to outrun the creep of travel anxiety, I remain committed to traveling, and this, I’ve found is the best tonic”.

Britain: “You’re Next”

In Callimachi & Fourquest, Long Before It Lost Turf, ISIS Was Already Targeting Britain, nytimes.com (6/10/2017) it was noted that “In the weeks after Islamic State operatives struck Paris in November 2015, the group released a prerecorded video of the killers. They stared into the camera, waved serrated knives, raged at the West and specifically warned Britain: You’re next. Footage showed scenes of London through a gunsight. For the next 13 months, the Islamic State and those inspired by the group killed and maimed in Brussels, Berlin, Nice and Normandy as well as across the Atlantic in California and Florida…The strikes in the past week against the capitals of the United Kingdom and Iran followed back-to-back attacks in recent months in Britain…’This is for Allah!’ the attackers were heard screaming in the latest bloodshed in London as they plunged knives into their victims”.

Philippines

In Passock, Duterte, Focused on Drug Users in Philippines, Ignored Rise of ISIS, nytimes.com, it was noted that “Hundreds of militants belonging to the Maute Group and its allies fighting under the black flag of the Islamic State, also known as ISIS, seized Marawi three weeks ago, leading to a battle with the Philippine armed forces and the biggest test yet of Mr. Duterte’s leadership…A president who has focused on a deadly antidrug campaign that has claimed the lives lot thousands of Filipinos seems to have been caught unprepared for a militant threat that has been festering in the south for years”.

Paris, France

In 12 injured after Molotov cocktail thrown at Paris suburb restaurant, travelwirenews.com (6/11/2017) it was noted that “Two people sustained serious burns and 10 others were slightly injured after a suspected Molotov cocktail attack on a restaurant in a Paris suburb (of) Aubervillers, a commune in the Seine-Saint-Denis district”.

Indonesia

In Daesh cells present in nearly all Indonesian provinces: Military chief, travelwirenews (6/13/2017) it was noted that “The military chief in Jakarta says Daesh is present in almost all the Indonesian provinces as the Middle East-based Takfiri terror group is expanding its foothold in Southeast Asia…Militants have launched several terrorist attacks across Indonesia over the past few years, in the latest such assaults, two bombings claimed by Daesh rocked a bus station in eastern Jakarta on May 24, killing three police officers”.

Munich, Germany

In Shooting takes place at subway station, leaves casualties, travelwirenews.com (6/13/2017) it was noted that “A shooting incident has taken place at a subway station in a suburb of the southern German city of Munich, leaving several people wounded, including a police officer”.

Alexandria, Virginia

In Shear, Goldman * Cochrane, Steve Scalise Among 4 Shot at Baseball Field: Suspect Is Dead, nytimes.com (6/14/2017) it was noted that “A lone gunman who was said to be distraught over President Trump’s election opened fire on members of the Republican congressional baseball team at a practice in this Washington suburb on Wednesday, using a rifle to shower the field with bullets that struck four people, including Steve Scalise, the majority whip of the House of Representatives”.

Mogadishu, Somalia

In Suicide attack on Mogadishu hotel kills 9, www.eturbonews.com (6/14/2017) it was noted that “At least nine people were killed as a suicide bomber drove an explosive-laden car into a hotel in Somalia’s capital…He said that a terrorist drove his car into the entrance of the Posh Hotel in the center of the city”.

In Al Shabab restaurant assault leaves 18 dead in Mogadishu, travelwrirenews.com (6/15/2017) it was noted that “Men prepare the transport of bodies of civilians killed in an attack at the Pizza House restaurant in Mogadishu on June 15, 2017. A suicide car bombing and assault by Shabab militants on two neighboring restaurants in Somalia’s capital…ended Thursday morning with 18 dead”.

Jerusalem, Israel

In Israeli policewoman ‘in critical condition’ after simultaneous stabbing attacks in Jerusalem, travelwirenews.com (6/16/2017) it was noted that “A 20-year-old Israeli border guard is in critical condition in a Jerusalem hospital and several civilians are injured after two simulations knife and gun assaults…Three assailants have been killed”.

San Francisco, California

In San Francisco shooting leaves 4 dead, travelwrienews.com (6/14/2017) it was noted that “A man with an ‘assault pistol’ has killed three people before turning the gun on himself in San Francisco”.

Big Fire In London

In Bilefsky, Grenfell Tower Death Toll Rises to 17, U.K. Government Is Criticized, nytimes.com (6/15/2017) it was noted that “with the death toll from horrific London fire rising and many residents still unaccounted for, Prime Minister Theresa May-under pressure from critics-on Thursday ordered a formal inquiry into the disaster that turned an apartment tower into a smoldering ruin”.

Trump Travel Banned

In Liptak, Trump Loses Travel Ban Ruling in Appeals Court, nytimes.com (6/12/2017) it was noted that “A second federal appeals court has ruled against President Trump’s revised travel ban, delivering on Monday the latest in a string of defeats for the administration’s efforts to limit travel from several predominantly Muslim countries”.

Cuba No, Yankee Si

In Davis, Trump Reverses Pieces of Obama-Era Engagement With Cuba, nytimes.com (6/16/2017) it was noted that “President Trump announced on Friday that he was reversing crucial pieces of what he called a ‘terrible ad misguided deal’ with Cuba and will reinstate travel and commercial restrictions eased by the Obama administration in an attempt to obtain additional concessions from the Cuban government…’We will not be silent in the face of communist oppression any longer’ Mr. Trump said…As part of the new policy, Americans will no longer be able to plan their own private trips to Cuba, and those who go as part of authorized educational tours will be subject to strict new rules and audits to ensure that they are not going just as tourists. American companies and citizens will also be barred from doing business with any firm controlled by the Cuban military or its intelligence or security services, walling off crucial parts of the economy, including much of the tourist sector, from American access”.

Cuba’s New Luxury Hotels

In McConnon, Cuba’s New Luxury Hotels Look to Lure Waves of U.S. Tourists, nytimes.com (5/9/2017) it was noted that “In Havana’s Parque Central, shady stone benches and graceful palm trees beckon to mojito-sipping tourists and locals gathering to shoot the breeze. The gathering spot, in the center of town, is surrounded by horse-drawn carriages and long lines of colorful finned-and-chromes 1950’s cars. But more utilitarian vehicles have recently begun circling the square: construction equipment transforming old buildings into luxury hotels”.

Laptop Ban

In Chiem, Laptop Ban May Extend To 71 Airports, DHS Head Says, law360.com (6/8/2017) it was noted that “The federal government is considering expanding a ban on large electronics like laptops in carry-on bags to cover U.S.-bound flights from up to 71 airports, a substantial increase from the 10 airports subject to the current ban (which are) from the majority-Muslim countries”.

Sharing Economy Overview

One of the most significant commercial developments in recent years has been the advent of the sharing economy. “If you own a car and own or rent a house or apartment you may have an asset which can be rented to others for short periods of time. What makes this simple concept so revolutionary and disruptive to the hotel and taxi industries, particularly in New York City and San Francisco, is the connectivity between owners and renters provided by the Internet “digital clearinghouses” such as Airbnb, Inc., Uber Technologies, Inc. and Lyft, Inc. Airbnb is a short-term home or apartment rental company that matches hosts worldwide with rooms to let with tourists who want to rent them. Uber and Lyft both offer car service, but with a twist. They pay drivers to supply and drive their own cars. Passengers order car service by using a smartphone app to locate an available Uber or Lyft vehicle. Tourists love it. Venture capitalists love it. However, as Airbnb, Uber and Lyft have spread across the United States and throughout the world, their explosive growth has created a stir among the hotel and taxi industries and governmental officials”.

Uber Culture Shakeup

See Daniels, Uber Senior VP Out After Covington Workplace Culture Probe, law360.com (6/12/2017) it was noted that Emil Michael, Uber’s senior vice president of business, has left the company…following multiple reports that said an investigation into workplace culture by Covington & Burling LLP recommended he leave. The board of directors for Uber…unanimously agreed to adopt the Covington report and recommendations on workplace culture after meeting in Los Angeles…CEO Travis Kalanick is considering taking a temporary leave of absence…A separate ;probe from Perkins Cole LLP that looked into specific allegations of harassment and other misconduct at Uber led to 20 employees getting fired last week, while 31 others are in training and seven received a final warning”); msb.comIsaac, Uber Fires Executives Over Handling of Rape Investigation, nytimes.com (6/7/2017) (“Uber has fired a senior executive who obtained the medical records lot a woman who was raped by an Uber driver in India, the latest example of misconduct unearthed at the ride-hailing giant”); Isaac, Uber Fires 20 Amid Investigation Into Workplace Culture, nytimes.com (6/6/2017) (“Uber has fired 20employees over harassment, discrimination and inappropriate behavior, as the ride-hailing company tries to contain the fallout from a series of toxic revelations about its workplace”).law360.com

Sharing Economy Lawsuits

“While Airbnb, Uber and Lyft are immensely popular with consumers worldwide their existence in any given locale in problematic. In some cities, these sharing economy juggernauts are banned, in others they are limited and subject to an occasional riot and in others they are welcomed with open arms. As Airbnb, Uber and Lyft have evolved from revolutionaries of the sharing economy to accepted transportation and short-term rental institutions, so too have the number and scope of lawsuits brought against them or by them”. Lawsuits have been brought by e.g., consumers [Philliben v. Uber Technologies (safe ride fees)], drivers [O’Connor v. Uber Technologies, Inc. (employees or independent contractors); Ehret v. Uber Technologies, Inc. (withholding gratuities); Meyer v. Kalanick (antitrust price fixing)], Uber [Wallen v. St. Louis Metropolitan Taxicab Commission (antitrust)], Lyft [ Cotter v. Lyft, Inc. (denial of preliminary approval of class action settlement),competing taxicab companies [Boston Cab Dispatch, Inc. v. Uber Technologies, Inc. (unfair competition); Yellow Cab Group, LLC v. Uber Technologies, Inc. (unfair competition)] and Airbnb [Airbnb, Inc. v. City and County of San Francisco (challenging restrictive ordinance); Airbnb, Inc. v. City of Santa Monica (challenging restrictive ordinance); Airbnb. Inc. v. Eric Schneiderman (challenging state and city regulations).


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Sharing Economy Articles

I have written the following articles on the sharing economy: Uber: The Turning of the Tide, Law360.com (4/24/2017); Uber On The Brink, Law360.com (5/8/2017); Uber May Have Met Its Waterloo, law360.com (5/20/2017); A Look At Airbnb’s Legal Battles Across The US, Law360.com (5/9/2017); How Airbnb Facilitates Profiteering In New York City, law360.com (6/5/2017); Dickerson & Hinds-Radix, Apartment and Car Sharing: A Disruptive Internet Revolution, newyorklawjournal.com (8/12/2014); Dickerson & Cohen, Taxis and Ride-Sharing: Meeting New York City’s Car Service Needs, newyorklawjournal.com (7/30/2015); Dickerson & Hinds-Radix, Airbnb and Uber: From Revolution to Institution, newyorklawjournal.com (4/22/2016); Dickerson & Hinds-Radix, Ramping Up the Penalties for Apartment Sharing in New York City, newyorklawjournal.com (11/22/2016); Dickerson, Uber: The Turning Point, Westchester Lawyer (1/2017).See also: Dickerson, Travel Law, Law Journal Press at 3.04 (2017).

Airbnb Homesharing Myth Exposed

In New Study Shatters Airbnb Homesharing Myth, ahla.com (3/9/2017) it was noted that “The American Hotel & Lodging Association (AHLA) release a new report today that examines the rise of commercial activity taking place on Airbnb nationwide. This study, Hosts with Multiple Units-A Key driver of Airbnb Growth reveals that Airbnb’s business is moving even further away from true home sharing: 81% of Airbnb’s U.S. revenue-$4.6 billion-comes from whole-unit rentals (those rentals where the owner is not present during the time of the rental). Airbnb has allowed the growth of ‘illegal hotels’ that are often unregulated properties operating in residential neighborhoods and…are disrupting communities, impacting affordable housing and jeopardizing safety and security for guests and neighbors alike”.

Uber Unions In Seattle?

In Mulvaney, Seattle, ‘Laboratory’ for Innovative Labor Laws, Makes Cases for Uber Unions, nationallawjournal.com (6/5/2017) it was noted that “Seattle is urging a federal appeals court to revise the city’s effort to serve as a gig economy ‘laboratory’ in which drivers who work for Uber. Lyft and other ridesharing companies are allowed to unionize. The case will test how far traditional protections for workers extend in the rapidly growing sharing economy. A federal trial judge in Aril blocked the Seattle law that would have permitted drivers for ride-hailing companies there to collectively bargain…The Seattle ordinance marked the first attempt in the country to ensure collective bargaining rights for the workers in the growing and contentious area of the law”.

Sharing Yellow Cabs

In Hu, New Yorkers Try a Startling Idea: Sharing Yellow Cabs, nytimes.com (6/6/2017) it was noted that “Fighting over a yellow cab is a long-enshrined tradition on the streets of New York City…But instead of fighting, how about this jarring idea: sharing. A new service gives passengers in thousands of yellow taxis the option of making space in the back seat for a stranger, in return for discounted fares. The shared rides are being offered through an unusual partnership between two competing ride-hailing apps: Via, which runs car pools in parts of Manhattan, Brooklyn and Queens, and Curb, an alternative to sticking out an arm to hail a cab. The service is the latest effort to help the city’s troubled yellow taxi industry”.therecorder.com

Stay Away From Chicago

In Smith, A Chicago Neighborhood Faces a New Fear: Assault-Style Rifles, nytimes.com (5/11/2017) it was noted that “Over a five-day stretch this month, in a single police district on this city’s South Side, 13 people were shot with assault-style rifles. The victims included two police officers wounded while sitting in a van. And 10 others were shot on Sunday during an impromptu memorial service for a man who had been killed a few hours earlier near the same spot along a neighborhood street”.

Travel Law Case Of The Week

In Hickcox-Huffman the Court noted that the plaintiff’s complaint pleads (1) ‘breach of self-imposed undertaking’, (2) ‘breach of express contract’, (3) ‘breach of implied contract’, (4) ‘breach of contract-federal common law’, (5) ‘breach of the covenant of good faith and fair dealing’, (6) ‘unjust enrichment’, (7) ‘intentional misrepresentation’ and (8) ‘negligent misrepresentation’. All the claims are for refunds of what she and other passengers paid as baggage fees, on the theory that US Airway did not do what is promised to do in exchange for the money”.

Terms Of Transportation

“To show the terms of the agreement (plaintiff) attached US Airways’ ‘Terms of Transportation’ to the complaint. The terms say that ‘Travel on US Airways shall be deemed acceptance by the customer of US Airways’ terms of transportation’. In boldface, they explain that “US Airways shall In No Event Be Liable For Any Indirect, Special Or Consequential Damages’ but makes an exception for baggage: ‘Except Baggage Liability, Section 11′. The publication also says that ‘US Airways has voluntarily established a program setting standards for service levels’ regarding baggage and has ‘committed to…[p]rovide on-time baggage delivery’ and ‘[m]ake prompt refunds’”.

Claim Limits & Procedures

“Section 11 addresses baggage and subsection 11.6 addresses ‘baggage claim limits and procedures’. That subsection limits liability for ‘loss, delay or damage’ to a dollar ceiling, and requires written notice of a claim for any ‘delay of checked baggage’ within 45 days of the incident for domestic travel. And it says that if the checked baggage is not returned to the customer ‘upon arrival’, then the airlines will make ‘every effort’ to return it within 24 hours”.

Preemption

“The district court dismissed the complaint on the grounds that (plaintiff’s) claims were preempted by the Airline Deregulation Act (reasoning) that (plaintiff’s) claims related to an airline ‘service’, a preempted category under the Act and the contract language was not specific enough to avoid preemption, we review the district court’s ruling on preemption de novo”.

Airline Deregulation Act

“The Airline Deregulation Act (ADA) sought to promote ‘maximum reliance on competitive market forces…to promote the needed air transportation system…[and] to encourage efficient and well-managed air carriers…To prevent the states from undermining this new free market approach, Congress prohibited them from enacting or enforcing any law ‘related to a price, route or service of an air carrier’”.

Breach Of Contract Not Preempted

“Thus, even after (Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014)) if (plaintiff) has adequately pleaded breach of a contract provision that US Airways voluntarily entered into, her claim is not preempted. The essential elements of a breach of contract claim are the existence of an enforceable contract, the defendant’s breach and damages to the plaintiff caused by the breach. (Plaintiff) pleaded the terms stated by US Airways in its terms of transportation, supported her averment that she checked one bag and paid US Airways’ $15 charge with documentary evidence and additionally alleged that the bag was not delivered to her until the day after her arrival. She requested restitution damages of $15 that she paid for timely delivery of her checked bag. We look to the terms of transportation to see whether it may be read as a contract to deliver the bag when she landed, rather than the next day”.

The Word “Timely”

“The airline has contracted to carry the passenger’s baggage at a rate of $15 for the first bag and $25 for the second. The theory of her claim…is that US Airways promised her timely delivery, that is, delivery of her bag upon arrival in exchange for $15…US Airways uses the term ‘timely’ to mean upon arrival. It expressly commits itself to ‘on-time baggage delivery’. In its subsection addressing baggage claims for ‘loss, damage or delay’ it refers the passenger to its policy on ‘delayed’ baggage. And it commits itself to applying this ‘delayed baggage’ policy if it ‘fails to return checked baggage upon arrival at the destination’. These terms establish that US Airways treats timeliness of baggage delivery as delivery when the passenger arrives at the destination, and teats delivery after that time as delivery of ‘delayed’ baggage. Thus, under the terms of transportation, she properly pleaded breach of the promise that delivery of her bag would be ‘timely’…the $15 (plaintiff) paid was consideration for delivery upon her arrival at her destination of her checked bag…Because (plaintiff’s) claim is for breach of contract of a voluntarily assumed contractual undertaking…the claim is not preempted by the ADA”.

Airline Defenses

“US Airways argues that because the airline does not expressly promise a refund if baggage is delayed, there is no breach of contract and no obligation to refund (plaintiff). But a contract may be enforceable even if it does not specify a remedy for a breach…Refunds are among the remedies traditionally recognized as among those which be granted ‘as justice requires’…US Airways warns, ‘If (plaintiff) were to prevail on her claims, airlines would be required to deliver checked baggage on-time or to provide that service for free’. We do not see why that argument undermines the contract claim. One airline may offer ‘first bag free’, another may offer ‘bag deliver within 20 minutes or we will give you a mileage award’, another may charge $50 for the first bag and expressly exclude any responsibility if the bag does not arrive on the carousel when the passenger lands. And another may offer timely delivery of the first bag for $15, which would mean if the bag is not timely delivered, the passenger has not gotten what she paid for and is entitled to a contract remedy, the smallest of which is probably just getting her $15 back”.

Conclusion

“If promises such as the alternative possible baggage deals hypothesized are not enforced, hen the competitive market forces sought by Congress cannot operate, because a passenger with any experience or knowledge will know better than to make choices based on the unenforceable competing offers. Passengers would not respond to competitive and differing offers, if passengers knew that the offerors could break their promises without impunity…(Plaintiff has pleaded breach of contract (which) is not preempted, and her pleading if true, establishes a breach of contract”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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