When Hayley Hickcox-Huffman arrived in San Luis Obispo,
Calif., on a US Airways flight last year, she made it on time, but her bag did
not. Having paid $15 to check that piece of luggage, she felt entitled to a
refund. After all, if her bag hadn't arrived with her flight, what exactly had
she paid for?
Since then, lawyers and other passengers have challenged
airlines in the courts on that very question, asserting a right to refunds when
baggage fees are levied but the luggage doesn't arrive with the passenger.
Airlines, meanwhile, are fighting back, claiming they never promise on-time
baggage delivery, nor do they guarantee in their contracts of carriage refunds
in instances of delayed luggage.
Hickcox-Huffman last month sued US Airways in California for
breach of contract, unjust enrichment and breach of the covenant of good faith
and fair dealing. The plaintiff argued: "When defendant began charging
fees for baggage, it incurred the obligation to handle such baggage with care
and ensure the timely delivery of the baggage to its passengers on arrival at
their destination. Each time the defendant delays, damages or loses baggage,
but fails to refund the baggage fee to the affected passenger, it breaches this
obligation." Hickcox-Huffman and her lawyers are seeking class-action
status against US Airways, which at press time had not filed a response with
the court.
That suit is hardly the only legal action on the matter. One
such suit against American Airlines was filed in July in Seattle.
"American Airlines has chosen to charge a fee to deliver a customer's bag
to a certain destination and, like most other airlines, has reaped significant
profits from this practice," according to a statement by attorney David
Ongaro of San Francisco-based law firm Ongaro Burtt & Louderback LLP.
"With that business decision, however, comes the obligation to either
perform the service, as promised, or return the fee. It's bad enough that most
airlines now charge fees to transport baggage, but [it's] inexplicable for them
to pocket the money when they fail to deliver this basic service." The law
firm has worked to file "a number of baggage claim class-action lawsuits
based on a simple theory that airlines charged passengers for a service but
failed to deliver the bags as promised," according to a statement.
While they tap into traveler frustration regarding the
decoupling of airline services from the base fare, such lawsuits stand on
flimsy legal ground, said lawyer John Caldwell, president of travel management
consultancy Caldwell Associates. "This is a certain amount of noise, and I
think these cases probably aren't going to make it," he said. "If the
first one or two get thrown out, I think that's the end of it."
American is seeking to dismiss the Seattle-area case,
arguing, among other things, that there is no obligation in its contract of
carriage to deliver bags on time. In court documents, AA wrote that those
seeking obligatory refunds on delayed checked bags are proposing "legal
rules that do not now exist." The carrier also argued that the Airline
Deregulation Act supersedes claims made under state law. Absent an earlier
resolution, plaintiffs expect the discovery phase to take a year before the
case would be "ready for trial by December 2011," according to a
court document.
While the U.S. Department of Transportation in the past two
years has implemented several new air passenger protections, it has yet to
address this particular issue. Caldwell viewed federal intervention as a more
feasible avenue than the legal process, noting the plaintiff would "be
better off going to DOT and trying to get a rule that would allow for
compensation on this, but I don't think they'd want to do that, because that
would be an administrative ruling and they'd get no money."
American, Continental Airlines, Delta Air Lines, United
Airlines and US Airways all note that passengers could be eligible for a refund
if they paid to check luggage on a flight that is canceled. For lost luggage,
meanwhile, domestic airlines are bound by law to reimburse passengers up to
$3,300, depending on circumstances. However, no legacy airline contract of
carriage explicitly offers a refund for baggage that is merely delayed. A Continental
spokesperson said, "Since the checked-bag fee is a transportation charge,
we don't offer a refund if a bag is delayed."
Still, customers are free to file a refund request, and
several airlines said they evaluate those on a case-by-case basis. All of the
largest U.S. airlines have some mechanism, whether through their websites or
via U.S. mail, through which travelers could request such refunds.
An AA spokesperson said, "The way we generally explain
that is to say that checked-bag charges are not reimbursed just because bags
are delayed. However, if the delay or loss is significant enough to file a loss
claim for other items that results in any payment or reimbursement, then
customers are also welcome to include their checked-bag charge as an element of
that claim request." Though US Airways' baggage policy claims that
"all bag fees are nonrefundable, per person and each way," the
carrier noted on its website that "we have processes in place to
compensate you on a case-by-case basis in the event of a service failure."
Despite the litigation this year, carriers pointed to the
infrequent nature of such infractions, claiming less than 1 percent of bags
fall into DOT's category of "mishandled," which includes lost,
damaged or delayed luggage. AA similarly noted that 99.4 percent of bags arrive
on the same aircraft as the passenger. When they don't, according to a
spokesperson, half of the wayward luggage arrives "at the correct
destination on the next flight in."
The rate of mishandled baggage has decreased. The 18 largest
U.S. airlines on average mishandled 3.59 bags per 1,000 passengers during the
first nine months of 2010, down from 4.02 bags in the same period in 2009,
according to DOT's most recent Air Travel Consumer Report. Of the six largest
U.S. carriers, Continental posted the best performance, mishandling 2.55 bags
per 1,000 passengers, while AA posted the worst performance among legacy
airlines, mishandling nearly four bags per 1,000 passengers. US Airways,
Southwest Airlines, Delta and United each posted better than average
baggage-handling performance, but many of the regional carriers with which they
contract—including AA's American Eagle (7.26 bags mishandled per 1,000
passengers) and Delta's Comair (5.4 per 1,000)—performed below average.
Source: Management.travel