Every time we buy a ticket from a transport company e.g. plane, train, coach, etc we implicitly enter a contractual agreement with that transport firm. The contract is generally named “conditions of carriage”, “terms and conditions” or other similar names. It can be found in the company website and sometime in small print at the back of the ticket or in one of the receipts after the purchase. When we buy a ticket online we implicitly sign the contract by ticking the box stating that we accept the conditions of the transport company.
According to this contract, the passenger has the responsibility of paying for the ticket and the transport company has the obligation to provide transport for him and his belongings in agreed conditions (mainly speed and comfort) without suffering any damage.
Therefore, problems like, cancellation, delay, lost or damaged luggage are breaches of contract on the part of the transport company. In these cases the company will have to compensate passengers as long as:
- There is a contract, explicit or implied
- There are damages or nuisances that can be proved
- There is no “force majeure” event like weather, natural catastrophe, war or a strike (transport companies account personnel strikes as force majeure even if the strike was planned longtime in advance).
According to the type of transport there are different rules and regulations, and individual companies will have different “service agreements” with passengers which means that it will be necessary to read the wording of the contract.
There are about a dozen railways operators in Spain. Regulations state that in cases of delay, cancellation, interruption of the journey or damage to luggage, the operator is responsible. This of course doesn’t cover force majeure situations.
RENFE the national train operator states that in cases of delay passengers will be refunded 50% of the ticket price for delays of more than one hour and 100% of the price if the delay was more than one and half hours. For AVE, the Spanish high-speed train, the compensation will be from 25% for a 20 minute delay to 100% of the ticket for delays of more than one hour. In cases of cancellation the refund will be up to twice the ticket price if the train was cancelled less than 4 hours before departure.
There are no set rules outside the transport agreement. In case of cancellation the ticket will be refunded. If the trip was part of a tour or a cruise the tour operator should compensate as well for damages. Unlike air transport there is no set limit to company liability.
Spanish public transport is regulated by a set of strict rules that are outside the scope of this article. Claims for compensation for private road transport such as coach companies for substandard service will be calculated according to the damage incurred by the passenger (as long as this can be proved ). Compensation for damaged or lost luggage will be limited to a maximum depending on the company and the situation.
For national travel this will be regulated by law 16/1987 of July 30th that states in article 23 that luggage damaged or lost will be compensated up to a maximum of 14.50€ per Kg. In cases where the luggage was not weighed it will be assumed to weigh 25kg.
For international travel, the coach line will set the maximum compensation in the transport agreement. In general this will be between 200€ and 400€.
Plane: Delay, cancellation or overbooking
Conditions of transport agreements are subject to different regulations depending whether the travel was national or international, and largely depend on the airline service agreement. While the EU set minimum level of compensation, in many other countries (USA and Canada for example) compensation will be exclusively set in the transport agreement.
The minimum compensation level in the EU is defined by Regulation (EC) No 261/2004 of The European Parliament and of The Council of 11 February 2004, (you can download at the http://eur-llex.europa.eu/ web site by searching for law n261 year 2004.) This regulation applies to airlines registered in the EU or for flights departing from the EU.
|For flights up to:||1500km||1500km-3500km (or outside the EU)||More than 3500km|
|Denied boarding (fault not attributable to passenger)||Rerouted on next available flight + 250€ (125€ if total delay less than 2h)||Rerouted on next available flight + 400€ (125€ if total delay less than 3h)||Rerouted on next available flight + 600€ (125€ if total delay less than 4h)|
|Cancellation (not for force majeure)||Price refund + 250€||Price refund + 400€||Price refund + 600€|
|Delay (not for force majeure)||No compensation for delays. For delays of more than 5h there is a possibility to ask for refund and not take the flight. If the traveler can demonstrate damages caused by the delay, compensation up to 5000€|
|For all these the airline should compensate the traveller with meals (depending on the waiting time), Hotel and with two telephone calls free of charge.|
For luggage lost, damaged or delayed, the compensation is set by the Montreal convention of 1999 (that supersede the Warsaw convention). Under this treaty the maximum liability for the airline is of 1131 SDR per passenger regardless of weight. SDR means Special Drawing Right and is not a currency but a foreign exchange reserve measurement unit defined by the IMF (it’s a weighted currency basket of the Euro, the US dollar, the British Pound and the Japanese Yen). On July 6th 2012, 1SDR = 1.22€ making 1131SDR equivalent to 1,377.60€.
1131 SDR will cover for material and non-material losses.
For luggage returned within 21 days most airlines won’t give any compensation, while for delays over 21 days the luggage will be considered lost. Compensation will only be paid if there are clear signs of damage to the luggage. Without external signs of damage any broken item inside the suitcase won’t be compensated under the argument that it was not properly packaged.
Some airlines will give an immediate one-off payment to cover the initial emergency purchases while few others will compensate a set amount per day. Do not expect this type of treatment from low cost airlines.
Claiming from transport companies
Many transport companies will compensate passengers without excessive trouble. This, however, is different for air transport as often the airlines will fail to compensate passengers according to the law and the transport agreement, as most air passengers do not know their rights (several airlines make a business out of it, preferring to pay occasional fines to the EU rather than to pay compensation.)
In case of complaints it is better to try to find a solution immediately by negotiating with the company representatives at the departure point or immediately at arrivals. If the trip was part of a package there is the additional possibility of complaining later to the tour operator.
If an agreement cannot be met then there is the possibility of using the consumer arbitration system (see articles Consumer rights in the travel and tourism industry in Spain and The Consumer Arbitration System in Spain ).
The legal option should be as a last resort.