REPORT ON TUI AIRLINE AND DESERT STORMS 1

REPORT ON TUI AIRLINE AND DESERT STORMS

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Report on TUI Airline and Desert Storms

Introduction:

TUI Airways Limited is regarded as the world’s largest charter airline, offering both

charter and scheduled flights from the UK and the Republic of Ireland to several destinations in

Asia, North America, Europe, and Africa. The company is also ranked the 10th largest in the

world by the number of route pairings served. It holds a type ‘A’ operating license of the UK

Civil Aviation Authority (CAA), which allows it to carry cargo, mail, and passengers with 20 or

more seats. TUI however faces legal challenges related to atmospheric instability due to cases

such as volcanic ashes and desert storms (McLachlan, James, and Hampson 2018, pp.740-755).

Particularly concerned with desert storms, the company flies its planes in North Africa, Asia, and

North America where desert storms due to strong winds, advancing gusts, heads of

cumulonimbus clouds and cold fronts are common (Maertens 2018, pp. 65-72). Desert storms

can lead to flight cancellation, denied boarding and rescheduled or delayed flights. The company

could incur extra costs since it is supposed to compensate customers and provide

accommodations and refreshments in cases for which it deems responsible. Nonetheless,

customers are left dissatisfied with the management and could threaten to sue the airline. By

exploring various sources, this report discusses how best TUI’s interests can be protected while

respecting rights of customers.

LAWS AND REGULATIONS GOVERNING AVIATION INDUSTRY

Principles of Law of Contract

Formation of a valid and enforceable contract is determined by five factors: offer,

acceptance, consideration, form, and contractual intention. To give rise to obligations that can be

enforced by the law, one has to begin with offer whereby the contracting party expresses
 REPORT ON TUI AIRLINE AND DESERT STORMS 3

willingness to contract on specific terms, with a clear understanding that the terms will be

bindings once accepted by another party. The company makes offers when it invites people to

buy its charter and flight services to storm-prone destinations. Acceptance is the final and

unqualified assent to contractual terms of an offer. In this regard, another party accepts specific

express or implied terms of the contract with a clear understanding that he or she will be legally

bound by them (Advocates for International Development 2019, pp. 2-14). The company makes

an acceptance immediately it accepts flying customers from one destination to another, whether

there will be storms or not. This acceptance also involves flight-accompanying services such as

communication, foods, and refreshments.

In common law, contractual terms must be supported by considerations or values that

have to be given up for a contract to be enforceable. Customers have to accept to pay for services

offered at prices requested and the company’s services have to be of value for a valid contract to

arise. Although contractual terms can be supported by consideration, they will still not be

binding in case one party does not have legal intention of entering into a legally binding

agreement (see Balfour v Balfour [1919] 2 KB 571) (Advocates for International Development

2019, pp. 2-14). In this regard, there must be qualified intentions that a passenger needs company

services on specific terms. Contracts can take either oral or written forms; thus, excepting cases

of sale of land and lease of more than 3 years, oral promises can still be as binding and legally

valid as written contract. Face-to-face conversations about storm-prone areas by company

employees to customers could result in a valid contract. Terms of contract can be implied or

express; express terms are set out by parties in the agreement by recording (Austen-Baker 2017,

p. 4). For instance, one is supposed to be refunded in case one’s flight is canceled due to desert

storms. Implied terms are those that are not directly stated although individuals are obliged to
 REPORT ON TUI AIRLINE AND DESERT STORMS 4

adhere to them by custom, operation, or usage. In this case, a person may be entitled to

refreshment and accommodation if his or her flight is delayed by the storms for more than 2

hours.

Regulation EC261/2004 on Denied Boarding, Flight Cancellation and Long Delays

A contract can be breached and terminated when a passenger is involuntarily denied

boarding, has his or her flight cancelled or is involved in a delayed flight (Stone and Devenney

2017, pp.10-25). In case of denied boarding, the company has to seek volunteer services from

other companies for reservation. If volunteers are not available, the airline may proceed to deny

passengers the right to board the flight involuntarily. The customer has to be reimbursed or

rerouted, irrespective of the outcomes from other airlines. If volunteers are not available, the he

or she must also be compensated and assisted accordingly. According to the EU Regulation 261,

passengers being denied boarding due to overbooking are entitled to all three types of

compensations and assistances according to one’s flight type. In this regard, a person flying a

short distance (less than 1500 km) is supposed to receive 250 Euros as compensation. Denied

boarding that concern a medium distance (between 1500km and 3500km) will have to be

compensated with 400 Euros. A person on long distance flight (from 3500km) will be entitled to

600 Euros if he or she is denied boarding a flight. Irrespective of the type of compensation, the

Regulation 261 still requires the customer to be reimbursed, or offered re-routing (Hasan 2017,

pp. 10-24).

During the process of finding a volunteer to offer the customer a flight, there are

likelihoods that his or her flight will be upgraded or downgraded. In case one is placed in a

higher class flight, one is not required to request for any additional payment. On the contrary, a

customer is entitled to a refund of 30%, 50%, or 75%, of the ticket cost in case of short, medium
 REPORT ON TUI AIRLINE AND DESERT STORMS 5

or long distance travel respectively. Sometimes, a passenger can voluntarily decide not take the

flight. The air carrier has to refund the full price of reservation, book him or her on alternative

flight or offer him or her some benefits for willingness to give up the flight due to inconvenience

(Hasan 2017, pp. 10-24).

If flights are cancelled, passengers are automatically entitled to re-routing and refunds.

They are also entitled to communication and refreshments in case delays are expected to be more

than two hours each. Each passenger for canceled flights is supposed to be paid 250 Euros, 400

Euros or 600 Euros if his or her flight is less than 1500 km, between 1500 and 3500 km or more

than 3500 km respectively. In 2017, the EU Court of Appeal confirmed the CAA’s requirement

that delay to reach final destination must be included in total delay (Hasan 2017, pp. 10-24). An

air carrier has to be prepared with 250 Euros, 400 Euros or 600 Euros for each customer taking a

flight up to 1500 km, between 1500 km and 3500 km or over 3500 km respectively. In all cases

however, customers will be entitled to communication, refreshments, and accommodation when

the plane fails to take the shortest route as agreed earlier (Hasan 2017, pp. 10-24).

Frustration of a contract by an extraordinary circumstance can free the air carrier from

obligations of paying compensations to passengers (Marsh 2017, pp. 65-70). Under this doctrine,

a contract can be discharged after unforeseen event that cannot be avoided occurs. This event

however has to be essentially different from what had been contemplated and has to make the

performance of the contract impossible (Nwafor, N., Edeh, Nwafor, M. and Obuka 2019, pp.294-

202). In a rule by the European Court of Justice in Wallentin-Hermann v Alitalia—Linee Aeree

Italiane SpA (Case C-549/07), no operating air carrier is obliged to pay compensation if it can

prove that cancellation or delay was caused by extra ordinary circumstances such as desert

storm, which could not have been foreseen and avoided under reasonable measures (Croon and
 REPORT ON TUI AIRLINE AND DESERT STORMS 6

Verbeek 2019, pp. 485-498; Markova 2019, pp.114-118). However, in Jet2 vs. Huzar, the

English Court of Appeal ruled that ordinary problems caused by sand storms in disrupting flight

should not be taken as extra-ordinary and the company can be required to compensate in case of

delays (Markova 2019, pp.114-118; Wijngaart 2016, pp. 59-62).

Principles of Torts and Accompanying Liabilities

Liabilities for negligence arise when a party breaches a duty of care owed to another to

causeharm that is not too remote on him or her (Deters 2018, p. 7; Englard 2018, pp. 123-130;

Goldberg 2017, pp. 87-111). Desert storms can reduce visibility to zero in some cases. The

storms can cause pitot static systems, conditioning packs and engines to ingest sand and cause

corrosion or blockage. Strong winds associated with storms can strongly affect the aircraft in

flight (Middleton and Kang 2017, p.1); they are believed to have caused the 2011 crash of air

ambulance near Delhi, India. The ambulance had had hit a wall of air and became unable to

move as a result (Brotak 2011, pp.42-46). Desert storms can be observed using Dust RGB,

infrared imagery, and other empirical forecasting techniques (World Meteorological

Organisation 2018, pp.50-53). The airline management has to be aware of local climatology, for

schedules to be re-designed to avoid areas prevalent with sand storms. There have to be plans to

deal with consequences of storms; the plans can include blowing sand across the operating

surface of the aircraft (Gohel 2016, pp.1-12). Negligence will be committed in case airline

management ignores or does not seek reports from weather and climate forecasting authorities in

areas the company operates. According to Package Travel Regulations 1992, cases of deaths,

illnesses or injuries that results due to negligence of airline operators in the event of storms are

supposed to be compensated. However, the package must have been offered and sold in the UK,
 REPORT ON TUI AIRLINE AND DESERT STORMS 7

include overnight accommodation, cover a period of at least 24 hours, sold at inclusive price and

comprise transport, accommodation or touristic services (Cimmino 2016, p.1; Dumitru 2016, p.

1).In case the airline ignores or do not seek expert advices or do not make sufficient and accurate

communications about delays and cancellations caused by the storm, the Montreal convention

1999 has provided a generous compensation package that include advance payments for persons

and air cargoes (IATA 2020, pp. 1-2).

RECOMMENDATIONS

Adhere to empirical reports by weather and climate forecasting agencies: The airline

has to have records of zones that are prevalent with desert storms such as Bahrain (van der

Meulen 2018, pp. 1-13; UNEP 2016, pp.21-34). Government sponsored weather and climate

forecasting agencies provide active data on prevailing atmospheric conditions, giving warnings

on dangerous zones. Weather and climatic conditions can change dramatically, and it is

important for pilots to take extreme cautions before flying any aircrafts. To avoid compensatory

losses and other punitive damages, the management has to be continuously making good

common sense of forecasting data that continuously become available from authoritative

forecasters to make sure that planes fly safely. However, data used have to be from various

forecasting agencies (UNEP 2016, pp.21-34).

Early, sufficient, and accurate communication: In case the organization receives

reports that certain areas will experience desert storms, communications to customers affected

have to be made as early as possible. However, the communications have to quote information

from authoritative sources such as the UK’s CAA and the London-based Met Office. TUI has to

have clear communications on fixed-term contracts with tour operators before they expire. In this
 REPORT ON TUI AIRLINE AND DESERT STORMS 8

way, it will relieve itself from their obligations even if the flights are frustrated by desert storms

(Kenny 2018, pp. 33-49; McLachlan, James, and Hampson 2018, pp.740-755).

The airline company has to provide sufficient and accurate information required by

Package Travel Regulations 1992 before booking people for holidays in areas with prevalent

desert storms. Among other requirements, the regulations ensure that tour operators and airline

companies have enough financial resources to compensate customers in case their services bust

abroad. In this regard, there have to be early arrangements to compensate and assist passengers

in case of denied boarding, flight cancellation and long flight delays. Regardless of being

compensated amounts according to respective flight type discussed above, customers are

supposed to be reimbursed, rerouted, and provided with accommodation and refreshments if

needs arise(Stanescu 2017, pp.23-27).

Indemnity and Insurances: The Company has to enter into insurance contracts to

transfer risks related to losses incurred due to desert storms to insurers. Since TUI is a large

international company that provide several airline services on world basis, its insurance clauses

will have to cover more and broader areas. The clauses have to identify claims the company can

make against the manufacturer, and those that concern professional errors and omissions,

contractual risk management, airport operations, damages and injuries to third parties, loss of

properties, mitigation of losses and so forth (Mozley and Landrum 2011, p. 1).

Avoidance and re-routing: In case reports from the Met Department and other weather

forecasting authorities indicate strong desert storms, the company will have to avoid affected

routes and take those that are safe. However, customers have to be informed about it as early as

possible. The airline has to have re-routing and avoidance plans in areas that are known to have

severe weather and climate conditions during certain times of the year. Route information is
 REPORT ON TUI AIRLINE AND DESERT STORMS 9

usually published by various sources and advisories and would contain advices on routes to be

avoided or taken due to emergency conditions such as desert storms. Nevertheless, pilots have to

work together with controllers to ensure that the aircraft flies in good weather conditions. Air

traffic controllers play important roles of updating pilots on prevailing weather conditions and

safe routes (Gohel 2016, pp.1-12).

Proper aircraft maintenance: Before subsequent flights, under surface parts have to be

blown to remove dust as much as possible. Vents, intakes, and tubes have to be covered to

prevent intake of sand and dusts (Gohel 2016, pp.1-12). Despite fixing mechanical components,

commercial aircrafts are increasingly becoming digitized, and the company will have to employ

avionics technicians. The technicians are needed to fix radio-telephone parts of the aircraft to

ensure proper communications. Airplane inspection, repair and maintenance ensure that

passengers reach their destination in safe and timely manner. This is important due to the fact

that the number of people, together with their cargoes, who prefer air transport over long

distances is now increasing (Gohel 2016, pp.1-12).

Proper communication and adherence to the law: The Company has to communicate

clearly on its terms when making offers, considerations, and acceptance regardless of contractual

form. Following procedures laid down by UK and EU laws will enable it avoid negligence cases

and contractual breaches (Gohel 2016, pp.1-12). Moreover, it will avoid vitiating elements to a

contract which involves misrepresentation and mistake. The elements make the existence or non-

existence of certain facts of the contract questionable, which generally destroys the agreement

reached and thus the whole contract (Duhan 2016, pp. 264-270; Mahmod et al. 2017, pp.74-83).

Conclusion:
 REPORT ON TUI AIRLINE AND DESERT STORMS 10

Desert storms can affect desired contractual terms of the contract and put the company in

wrong terms with customers. Things can be worsened if the company’s employees are negligent.

The management has to create weather and climatology awareness system to make sure that it

schedules aircrafts on safe routes and in right destinations only. Routes and destinations that

show strong desert storms have to be avoided. However, the company has to be apt in

communication of such cases. Contractual agreement should involve contingent arrangements to

avoid putting customers on routes that are not safe. In case planes are flown to areas that are

prevalent in storms, plans have to be made to deal with consequences of the storms to put

aircrafts in right conditions.

 REPORT ON TUI AIRLINE AND DESERT STORMS 11

Reference List

Advocates for International Development, 2019. Basic principles of English contract law.
London: Allen & Overy.

Austen-Baker, R., 2017. Implied terms in English contract law. Edward Elgar Publishing.
Brotak, E., 2011. Dusty and gusty. Flightops.

Cimmino, M., 2016. Quality of performance and standardisation of the tourist services: recent
issues in European private law. E-review of Tourism Research, 13.

Croon, J. and Verbeek, F., 2019. Regulation (EC) 261/2004 and internal strikes under Article
5.3:‘it’s all about control, stupid’. Air and Space Law, 44(6), pp.485-498.

Deters, H., 2018. The fallacies of considering foreign law in english tort law. Anglo-Ger. LJ, 4,
p.7.

Duhan, R., 2016. Indian contracts: Role of free consent and factors responsible for vitiating
consent. International Journal in Management & Social Science, 4(12), pp.264-270.

Dumitru, I., 2016. Difficulties in interpretation and application of Directive 90/314/EEC on

Package Travel, Package Holidays and Package Tours. Rev. Universul Juridic, p.91.

Englard, I., 2018. Understanding tort law by the Kantian moral principle of human
freedom. Journal of European Tort Law, 9(1), pp.123-142.

Gohel, H., 2016.Conscious study of impact of dust storm on aviation and airport management.
International Journal of Engineering & Scientific Research, 4(9).

Goldberg, H.M., 2017. Liability for government actions: A comparative study of english and
american law. In Child Abuse Tort Claims against Public Bodies (pp. 87-115). Routledge.

Hasan, A.A., 2017. A legal analysis and improvements of force majéure clause in package
holiday contracts: between travel agents and holidaymakers (Doctoral dissertation, Universiti
Teknologi MARA).

IATA, 2020. A universal liability regime for international carriage by air – Montreal
Convention 1999. IATA.

Kenny, M., 2018. From the 2004 Communication on European Contract to the 2015 Draft
Directive on the supply of digital content: Harmonisation, unification or transformation of EU
private law?. In Essays in Memory of Professor Jill Poole (pp. 33-49). Informa Law from
Routledge.

Maertens, S., 2018. A metric to assess the competitive position of airlines and airline groups in
the intra-European air transport market. Research in Transportation Economics, 72, pp.65-73.
 REPORT ON TUI AIRLINE AND DESERT STORMS 12

Mahmod, N.A.K.N., Azmi, I.M.A.G., Ali, E.R.A.E., Ismail, W.A.F.W., Daud, M. and Napiah,
M.D.M., 2017. An Analysis of Consensus Ad Idem: The Malaysian Contract Law and Shari’ah
Perspective. Pertanika Journal of Social Science and Humanities, 25, pp.73-84.

Markova, P., 2019. Consumer protection while travelling–enforcement of air passenger rights
during ‘extraordinary circumstances’ in light of regulation (EC) No 261/2004. Journal of
European Consumer and Market Law, 8(3), pp.114-118.

Marsh, P., 2017. Contract law. In Contracting for Project Management (pp. 65-80). Routledge.

McLachlan, J., James, K. and Hampson, B., 2018. Assessing whether environmental impact is a
criterion of consumers when selecting an airline. International Journal of Advanced
Research, 6(3), pp.740-755.

Middleton, N. and Kang, U., 2017.Sand and dust storms: Impact mitigation. Sustainability, 9
(1053). Doi:10.3390/su9061053

Mozley, J.A. and Landrum, A.M., 2011.Indemnity agreements in the aviation context and
related issues. Atlanta Georgia: Mozley, Finlayson & Loggins LLP.

Nwafor, N., Edeh, K.N., Nwafor, M.G. and Beatrice Obuka, U., 2019. Frustration and remedies
under the Cisg, Unidroit principles and English law: A comparative review. Business Law
Review, 40(5), pp.194-202.

Stanescu, A.T., 2017. The consumer concept in GO No. 107/1999 and GO No. 21/1992.
comparative approach. Law, Society & Organisations, 2(2), pp.23-27.

Stone, R. and Devenney, J., 2017. The modern law of contract. Routledge.

UNEP, 2016.Global assessment of sand and dust storms. Nairobi: UNEP.

van der Meulen, J., 2018.Statement of guidance for aeronautical meteorology. SoG for
Aeronautical Meteorology.

Wijngaart, T.V.D., 2016. Case Note: van der Lans v. KLM and ‘extraordinary
circumstances’. Air and Space Law, 41(1), pp.59-62.

World Meteorological Organisation, 2018.Aviation hazards. Commission for Aeronautical

Meteorology.