Does the Carrier Owe a Duty to Notify Passengers of Changes in Flight Times?

Introduction

Ms Rose Nwosu bought a Nigeria–New York return ticket on Sky Airlines through her travel agent. Once the booking was confirmed, she contacted the airline to confirm her flight details and was assured the flight would proceed as scheduled. However, upon arrival at Murtala Muhammed International Airport in Lagos, Ms Nwosu discovered her flight had been rescheduled to a later date without any prior notification. She was left stranded without alternative arrangement — the airline provided no accommodation, alternative travel or even food, causing significant discomfort and inconvenience in addition to disrupting her plans.

This article examines whether airlines can be held liable for failing to notify passengers of changes in flight schedules, particularly where such failures lead to financial loss or significant inconvenience for the passenger.

Nature of the relationship

The relationship between an international airline and a passenger is an international contract of carriage by air, regulated by the Montreal Convention 1999 (“the Convention”), domesticated in Nigeria by Section 55 of the Civil Aviation Act 2022.

Article 1 of the Convention states that it applies to the international carriage of persons, baggage or cargo by aircraft for commercial purposes. The contractual relationship commences as soon as the passenger pays the fare and is issued a flight ticket. From that moment, there is an implied term that the airline, as carrier, must exercise all reasonable care and skill in promptly communicating any flight delays, cancellations or rescheduling to the passenger. The airline is also expected to ensure the timely delivery of checked-in luggage upon arrival without unnecessary delay. Airlines are therefore under a legal obligation to fulfil this duty of care with diligence and professionalism.

Article 19 of the Convention provides that airlines are liable for losses caused by delay in the carriage of passengers or baggage. The second leg of this provision has the potential to absolve airlines from liability where it is proven that they took reasonable measures, or that it was impossible to avoid the damage. Airlines often rely on this provision as a defence in disputes relating to flight delays, cancellation, rescheduling and delay in delivery of checked-in luggage. It does not, however, operate as an automatic shield: to rely on it, an airline must show it took reasonable measures to prevent the damage complained of, or that it was impossible in that scenario to take such measures.

The NCAA Regulations 2023 on delays, cancellations and the right to compensation

The NCAA Regulations contain provisions protecting passengers in cases of flight delay and cancellation, and offer a right to compensation. Part 19.6 outlines the duty airlines owe passengers where there is a flight delay, including refreshments, access to communication services and reimbursement in certain cases. Part 19.7 mandates airlines to offer alternative transport where a flight is cancelled, except where the cancellation was due to extraordinary circumstances — and requires the airline to have notified the passenger not less than 24 hours before the scheduled flight for domestic trips, and not less than seven days for international trips. Where this is not done, the passenger is entitled to compensation. Passengers have a right to claim compensation where an airline fails to comply with these standards on adequate notice of delay or cancellation.

Consequence of inexcusable delay or cancellation

The implication is that an airline cannot escape liability for delays or cancellations resulting from its own negligence, such as where it negligently fails to notify passengers of cancellations within a reasonable time frame. Any delay to a passenger’s flight, or to the delivery of cargo or baggage, occasioned by an airline’s negligence may automatically result in an award of damages against the airline, except where there is contributory negligence by the passenger.

The attitude of the court in such cases is to award damages where a passenger successfully proves the delay resulted from a negligent act or omission of the airline and its agents, especially where done recklessly or without regard to whether damage would likely result. In Mekwunye v Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191, the Supreme Court held that the airline was in flagrant breach of contract where it cancelled the appellant’s confirmed ticket without prior notice and denied her boarding despite her having confirmed the flight on three separate occasions — the Court held this to be a breach of a fundamental term of the contract of carriage, entitling her to damages beyond a mere refund.

Also, in Tolulope Aderemi v Kenya Airways (Suit No. FHC/L/CS/2092/2019), the Federal High Court, Ikoyi (Faji J) awarded damages in favour of the plaintiff for the loss he suffered as a result of the defendant’s summary cancellation and wanton delay of his flight, and its failure to notify him or his agent of the delay or to give a cogent reason for it.

To borrow a leaf from international jurisprudence, courts in the United Kingdom have made notable pronouncements on the consequence of inexcusable delay. In Lipton and another v BA Cityflyer Ltd [2024] UKSC 24, the appellant airline relied on the defence of “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken” to resist a claim for flight delay compensation. The facts were that in January 2018, Mr and Mrs Lipton’s flight to London was cancelled after their pilot unexpectedly and suddenly fell ill at short notice while at home and off duty. They were placed on another flight, which arrived two hours and thirty-six minutes after their original scheduled arrival time, and claimed compensation under EC Regulation 261/2004. The air carrier succeeded at first instance and on the first appeal on its reliance on the defence of “extraordinary circumstances.” It lost, however, at the Court of Appeal, and the airline’s further appeal to the UK Supreme Court fared no better: a five-Justice panel unanimously held that a pilot’s sudden illness was not an “extraordinary circumstance” within the meaning of the Regulation. As Lord Sales and Lady Rose held: staff absence is not one of the factors identified in recital 14 as indicative of “exceptional circumstances”; the only factor listed there that is potentially referable to staff absence is strike action, which is much more likely to be out of the ordinary than a sick member of staff.

Exclusion clauses in flight tickets

Most flight tickets contain an exclusion clause, usually in fine print, stating that the airline will not be liable in cases of delay, cancellation and damage. Such clauses have therefore always been raised as a defence to claims by passengers who suffer losses on account of an airline’s actions. The courts have, however, taken a strong position against them, holding that the denial of boarding is a fundamental breach of the terms of the contract of carriage, and that airlines cannot hide under an exclusion clause to avoid performing their contractual obligations (see Andrea Ajibade & Ors v Ethiopian Airlines & Anor, Suit No. FHC/L/CS/240/2017). It goes without saying that allowing an airline to benefit from a breach of its duty of care to its customers would amount to manifest injustice.

Key takeaways and conclusion

The contract of carriage by air, and the airline’s implied duty to notify passengers of delays, cancellations and rescheduling, is governed in Nigeria by the Montreal Convention 1999 as domesticated by Section 55 of the Civil Aviation Act 2022. The NCAA Regulations 2023 (Parts 19.6 and 19.7) impose specific notice periods — 24 hours for domestic flights, seven days for international flights — below which a cancelled or delayed passenger is entitled to compensation. Nigerian courts have consistently awarded damages beyond a mere ticket refund where an airline’s failure to notify amounted to a fundamental breach of contract: see Mekwunye v Emirates Airlines and Tolulope Aderemi v Kenya Airways. UK authority is moving in the same direction: the Supreme Court’s unanimous ruling in Lipton v BA Cityflyer confirms that even an ordinarily sympathetic excuse, such as sudden staff illness, will not qualify as an “extraordinary circumstance” excusing the airline from liability.

In conclusion, airlines have a duty by law to give sufficient notice to passengers where their flights are rescheduled or cancelled, or where there will be a potential delay. Passengers may successfully seek redress and claim damages where airlines fail in this responsibility. It is important that passengers are fully aware of their rights in cases of delay and cancellation. Where an airline fails to give proper notice or comply with the regulations protecting passenger rights, affected passengers are entitled to seek legal recourse, and can hold the airline accountable for any resulting inconvenience, emotional distress or financial loss. Airlines should prioritise clear and timely communication with passengers whenever delays or cancellations arise, to avoid legal disputes of this kind.