In the olden days when one went flying with an airline, one purchased a ticket. The ticket was a work of art; many layered and had much small print on the reverse of each page. Today, a Generation Y traveler cruises the internet and snags the best deal.
The ticket nowadays is an ‘e’ ticket and one can go from booking on the internet, paying by credit card, getting a seat card on an electronic geegaw in the departure concourse and you do not meet a human until again feeding the seat card into an electronic counter at the departure gate.
Naturally, in this age of self help, one finds one’s own way to the seat in cattle class. The doors close and one is whisked off to better climes safely. So much for the usual course of events. What happens if it all goes pear shaped? Does one have recourse if you find no booking; your bags are lost in Terminal 5 at Heathrow; someone big, ugly and aggressive is sitting in your designated seat. Enter a lawyer to advise on your rights.
In the days of the hard copy ticket, having paid your hard earned you had little or no rights. The status of an airline ticket was considered by the High Court in MacRobertson Miller Airline Services v Commissioner of State Taxation of the State of Western Australia 1976 50 ALR 348. Three questions were asked of the Court:
(a) Whether the ticket was an agreement or memorandum of agreement;
(b) Whether the ticket was chargeable with duty as assessed by the Commissioner;
(c) If not, with what duty (if any) was the ticket chargeable under the Act?
The ticket was for a flight from Perth to Port Hedland within the state of Western Australia. Clearly, there was no trade and commerce between the states, so no constitutional issue arose.
It was a purely intrastate trade and commerce entity. The Supreme Court of WA thought it was an agreement (contract) but the High Court thought it was not. The reasoning of the High
Court says a lot about aviation tickets and the rights conferred thereunder.
After describing the paper ticket in detail, Barwick CJ set out the ‘conditions of carriage’ on the ‘inside of back cover’ in full. For present purposes these may be paraphrased as follows:
“The airline company reserves the right: (a) to substitute any other aircraft for that originally scheduled, (b) to deviate from any advertised route, (c) to transfer passengers to any other aircraft at any airport, (d) to abandon the flight, (e) to cancel any ticket or booking and (f) to carry the passenger for portion only of any booked flight. Additionally, the times of arrival and departure are not guaranteed.”
His Honour went on to say, “The proper legal analysis of the situation… is that if the airline conveys the passenger in accordance with the reservation under the terms of the ticket the airline will have earned the fare that has been prepaid. If the airline has been able, ready and willing to carry the passenger in accordance with the particulars of the ticket and the passenger does not present himself in due time, the airline may claim to have earned the fare.” It can be seen that an airline ticket is actually worth less than the paper it is written on.
Stephen J commented that, “the conditions appear to relieve the airline very substantially from performance of those obligations relating to carriage of the passenger.”
Certainly, the airline appears to promise no more than that it will carry him somewhere, when and if it feels like doing so. Jacobs J summarised the state of affairs: “By embarking on the travel or journey the passenger may accept the offer constituted by the ticket and be a contracting party to a contract of carriage. It is not a contract of carriage which is in writing by virtue of the ticket; it is a contract which may arise only by presentations of the ticket.”
This last comment holds the key to the present legal situation of cyberspace tickets and seat allocations in the form of a slip of paper. If the contract only arises by presentation of a ticket and no real ticket exists for a passenger to present, it follows that any contract of carriage may not contain the onerous clauses beloved of airlines in their dealings with passengers. If all the passenger has is a slip of paper listing a right to board an aircraft registrable by a bar code the airline may now be at risk.
In the present age of cheap and nasty ‘low cost’ airline operations, a court may not be as eager as the High Court was in the olden days to negate any common law rights. Nevertheless, when the wider common law is considered in respect of ticketing, the following are relevant matters to consider:
(a) Has the passenger been given notice of onerous terms?
(b) If the passenger signs a document containing terms the passenger is normally bound by the terms even if he has not read them;
(c) The passenger must receive the notice of the terms contemporaneous with the contract; a notice given after the contract is concluded is of no value (Olley v Marlborough Court Ltd 1949 1 KB 532).
(d) Even if the passenger is illiterate this has no effect. If the notice given was reasonably sufficient for ordinary travellers, the class to which the passenger belonged, the passenger is bound (Thompson v LM & S Railway Co 1930 1 KB 41).
This last quality provides a new meaning to computer illiteracy. When one purchases an e ticket on the internet, the fact that one is not completely computer literate may weigh against one in court.