Have a chat with Ros Fernihough on 01922 621114 she is a travel law lawyer and will offer you free advice.

Kosmar they are your tour operator. The British Midland flight would have a flight they chartered not a scheduled service.

Sounds like sales were low and they combined 2 flights.

I am not sure about your complaint via Birmingham as the flight operated back to Birmingham as you booked, late I know. ( if I was a Glasgow passenger I wouldnt be very happy ).

Kind Regards
Stewart

Thanks Stewart

My complaint is with the 13 hour delay as we arrived back at our original airport. At first I was worried we were going to fly us to Glasgow and then bus us to Birmingham but thankfully that did not happen.

The poor passengers on the Glasgow flight were not informed that they were to stop at Birmingham until they were at the airport and that was just through word of mouth. Not one Rep stood up and informed them of the situation. Needless to say they were not happy - neither were the Excel staff who were also filling in complaint forms as they had to deal with the disgruntled passengers!

Luckily things did not become too bad as everyone was so tired!!

Best wishes
Gill

Gill,
Stewart's rightly said that your complaint is with the Tour Operator, KOSMAR with regard to certain elements.

I doubt there's much joy for you in the 13 hour delay arriving home - but I might be wrong. My experience is more related to delays outbound wherein you CAN claim money back from the tour op. for missed night's accommodation.

However, as there was a flight delay affecting the homeward leg the AIRLINE responsible should have provided you with refreshments and where appropriate, accommodation. A 6:20 am flight counts as a morning (day) flight in my book and consequently you should have been put up in a hotel the night before - AT THE EXPENSE OF THE CARRIER. One would assume the carrier would recover this cost back from the tour operator should the fault for the delay lie with the tour op. - but that's not your concern.

To expect you to pay an additional 25 Euros is a laughable insult. Your post doesn't make it clear if having refused to sign the disclaimer you were then denied the offered 30 Euro compensation.

Good old EC261/2004 rules apply here with regard to the flight delay. You should have been informed of your rights by the carrier upon arrival at the airport. You should have been provided with meals and refreshments in keeping with the length of the delay and in your case - a hotel room. Transport to this temporary accomm. and back to the airport should also have been provided free.

It's difficult for me to say if you were truly "bumped" in terms of the rules but it does sound like the best description. You should therefore have been compensated on a sliding scale - related to the distance of the flight. I'd guess at about 250-400 Euros - Ros will confirm the true figure.

Don't forget to get the 25 Euros per room back as well - what a bl***y cheek they have.

On this occasion (unusually) there's no complaint against Excel. You might however need to complain against British Midland re. the bumping aspect -but start with Kosmar first.

If they say that you should claim off your travel insurance and/or directly with British Midland challenge them with their responsibilities under EC261/2004.

Let us now the outcome please as this an interesting complaint.

Mike

Just to complicate matters, this season ,all the flying for kosmar is contracted to Excel .However to ease the load they have chartered an Airbus from BMI to fly on their behalf, but the flying contractors are definitely Excel.

Thanks for this Mike.

We just refused the 30euros so I don't know what they would have said if we accepted the money and then refused to sign the disclaimer.

In the end we shared a room so at least we could have a shower etc but it was the attitude of the Rep that made me so cross. We did/do not want 'loads of money' but the compensation offered did not cover our expenditure for those extra hours in the resort. Had they said to retain receipts and then they would repay us, then I would have been happier. Not only did we have the extra night in the resort etc. but we also had to pay extra car parking fees on our return.

We chose that particular flight because of the times - I know that they often change these and I am always prepared for some sort of a delay, but knowing that our flight was leaving on time and we were not on it was awful.

We all had reasons as to why we needed to get home but the Rep was not interested and told us that we had been given an extra days holiday!

Excel were brilliant - I have no complaint with them whatsoever. They had been put in a difficult situation but luckily no one made a fuss on the return flight.

Gill

all the flying for kosmar is contracted to Excel

Thats probably because they are now the same company. They took over Kosmar a couple of months ago.

Terry

Terry,
thanks for digging out the little gem. Kosmar's off my list then

Gill, if you get involved with Excel at any point seeking your due recompense for having been bumped off the flight beware - their customer relations are not the best.

With Terry's post confirming Kosmar is Excel and the fact that you should have returned originally on a BMI flight - and also given Paully's data about BMI chartered plane to Excel the claim appears to be more complicated.

I think the government should introduce some simplified legal clarity into travel bookings. It should for example be clearly stated who your contract is with and that ONE company should be responsible for ALL their sub-contractor's actions - including the flight.

I still suspect your compaint is with Kosmar in the first instant - but you really might need to seek legal advice about claiming for the bumped element against the carrier - this now appears to be Excel.

I claimed (with Ros Fernihoughs superb help) against Travel City Direct - my Tour Operator - last year for the delayed departure of our flight to Florida. TCD, like Excel are owned by the Avion Group. I stilll claimed against TCD though as they were the T.O.

Excel were responsible for the provision of meals/refreshments and had it been necessary, accommodation at m/cr airport prior to the delayed departure. They performed adequately (only just) and hence I had no cause to take action against Excel.

Your situation is different - David, the moderator - posted some useful details a few weeks back. This link will get you there:
http://www.holidaytruths.co.uk/viewtopic.php?p=618803

http://www.eccdublin.ie/publications/leaflets/subject_guides/APR.pdf

Tha above link explains the basics in simple terms (perhaps too simply) but has reminded me that when passengers are to be bumpled the airline should ask first for volunteers. Should sufficient come forward they are at liberty to negotiate compensation with the airline. However, should insufficient volunteers come forward the airline may select some to be denied boarding. Compensation MUST be paid to these unfortunate travellers in the range 250-600 euros - this being based upon the distance being flown. These rules also call for the airline to provide overnight accomm. where the delay merits such - and refund cost of meals etc.

Rhodes - looks like 400 euros.

Gill, first find out who's going to take responsibility for this. If you get any hassle put the matter in the hands of a solicitor.

You may also consider reporting Kosmar/Excel to the CAA for their failure to abide by the EC261/2004 directive.

Mike

Your complaint is with kosmar but a feel things I am interested in.

You say the oirignal flight operated but you were not on it. What was the reason given for this.

I think some people are confusing the issue dragging Excel into this ( this is not an attempt to defend them ). If you booked a complete package with kosmar then your complaint is with them. It would help to know the reason why you were switched to another flight ( if your original flight did operate then did they have an operational problem which meant only a smaller aircraft was available ). reading between the lines I think bookings were weak and flights combined but that is only a guess if this is the case then Kosmar would have made this decision not the airline, it may also be that BMI had a technical problem with their aircraft but if that was the case they would be obliged to find capacity to cover for their existing aircraft.

There is a major delay 13 hours so you should be able to persue Kosmar for out of pocket expenses ( food,rooms, car parking etc. telephone calls ) also your insurance company may pay out for a delay although the excess might be higher than the payout.

Kind Regards
Stewart

Stewart

We were told by the Kosmar Rep that due to operational difficulties we would no longer be on the Birmingham flight but fly later in the day on the Glasgow one.

It may have been a smaller plane that they used and, therefore, less seats, but why not tell us that if this were the case? We suspect that as our original flight left (the coach collected people for it from a nearby apartment) they had overbooked and as there were spare seats on the Glasgow flight put us onto that. We went to the internet cafe in Lindos and checked Birmingham's website and it stated that our original flight was on time.

Trying to get information out of the Rep was so hard as she would not be pinned down to any answers. She said that she was just being told what to do and did not know the reasons why.

We were not the only ones in this situation, about 50 people left the plane at Birmingham but most had appeared to have accepted the compensation. Even with the extra passengers the Glasgow flight still had spare seats so was well under capacity.

The lack of information and the unwillingness to give us any made the situation harder to deal with - all you want is honesty!!

Stewart,
I understand your belief that Kosmar are responsible - they are the Tour Operator.
However, it IS the airline carrying the passengers that has responsibility under EC261/2004 regs. There's very often no rep. from the Tour Op. at the airport (airside) when such delays occur but there usually is a representative of the carrying airline.

I also take your point about technical reasons for the delay - this is the usually route by which the tour op./airline try to escape financial liability.

Two days before we were due to leave Rhodes, the Kosmar Rep came to see us stating that due to 'operational difficulties' we would not be able to fly back on the Birmingham flight but would have go on the Glasgow flight (which would stop off at Birmingham to offload us) which was due to leave at 06.20am Sunday morning - over 13 hours later.

This quote from Gill's initial post implies Kosmar were aware of the operation problem. This tends to remove the possibility of a technical problem. Kosmar quite rightly arranged a replacement flight. Importantly, the original flight (presumably) left as planned and hence further proof that technical difficulties didn't exist.

I agree with you about claiming reasonable documented costs back from Kosmar. The 25 euro room cost being first. But, they should never have needed to claim meal costs back - these should have been provided by Kosmar or their representatives.

There's still the issue of having been bumped. What's your view on that aspect ? I see that as the main issue here, and if we're being blunt, the route via which Gill can claim the greatest amount of compensation.

I don't particularly agree with you about Excel being dragged-in. I've just phoned Kosmar (0871 7000 747 - then option 8 for customer services) and asked them to confirm - they DO confirm they are now owned by Avion Group (who also own Excel and Travel City Direct).

Excel are involved in as much as they were the replacement carrier - the original BMI flight reportedly having been chartered to Excel. I do feel the carrier who bumped Gill and party off the original flight for operational reasons is liable in the first instance to pay compensation at the rate of 400 euros per bumped passenger. The fact they ALSO arranged replacement travel is irrelevant - that's incumbent upon them anyway otherwise the cost of the RETURN leg of the flight would itself have needed to have been refunded permitting Gill and party to source alternate flights should they so wish.

Your insurer may indeed pay in addition for delay - it will likely be a small amount, probably not subject to an excess and will not fall foul of subrogation issues.

Mike

Gill, talk to Ros a.s.a.p. I believe you have a good case but Ros will confirm who you need to pursue.

Withour knowing all the facts the reason i dont think the carrier is responsible is this.

When an aircraft is chartered then the tour operator is in control. if indeed the BMI did operate on time then the carrier has done no wrong and it sounds more like the tour operator has overbooked. ( Unless BMI operated a smaller aircraft than contracted on the day, I dont think this is what happened operational rather technical is the word used nice and vague ).

My view on bumped, if the flight operated to Birmingham on time then the tour operator not the airline has decided who is travelling on the aircraft so yet again they are responsible and it is back to their terms and conditions. For a delay of this length they should have provided the hotel room, food drink and out of pocket expenses like additional parking costs. Certainly claim for these.

Excel were not a replacement carrier here but operating there normal flight to Glasgow, obviously it had empty seats and the overbooked passengers for Birmingham were put on this and the aircraft was routed via Birmingham. Within the rules and nothing wrong there.

Excel are several things and not just an airline. They probably acted as the inhouse broker in this instance chartering the BMI aircraft for Kosmar so are not the carrier in the first instance. They operated on time in the second instance so I am not sure what recourse you have to them. Kosmar is who your contract is with and who you should persue, if you want to go higher then the parent group is the Avion Group. There is no contract with a carrier and a chartered aircraft is operating under the instructions of the tour operator.

The EC regs are much clearer when applied with scheduled carriers, in this instance I dont think BMI bumped anyone off the flight Kosmar decided who travelled. I think out of pocket expenses due to the delay is more likely in this instance than compensation.

Kind Regards
Stewart

Stewart,
we've had this debate previously.

Again I've just re-read EC261/2004.

It defines the following

(b) 'operating air carrier' means an air carrier that performs or
intends to perform a flight under a contract with a
passenger or on behalf of another person, legal or natural,
having a contract with that passenger;

the operating air carrier was, in the first instance BMI (or perhaps Excel having sub-contracted BMI's plane - the CAA will be able to confirm who the "operator" was from the flight number of that original flight). Kosmar had a contract with this "operating air carrier". Kosmar also had the contract with the passengers.

Moving on:

1. When an operating air carrier reasonably expects to deny
boarding on a flight, it shall first call for volunteers to
surrender their reservations in exchange for benefits under
conditions to be agreed between the passenger concerned and
the operating air carrier. Volunteers shall be assisted in accordance
with Article 8, such assistance being additional to the
benefits mentioned in this paragraph.

The carrier knows the aircraft capacity - will inform the tour operator in advance and hence Kuoni made the decision who to bounce. This is not the proceedure that should have been undertaken - read above.

Shortly afterwards it states:

3. If boarding is denied to passengers against their will, the
operating air carrier shall immediately compensate them in
accordance with Article 7 and assist them in accordance with
Articles 8 and 9.

I'm quite clear that Gill and party were bounced very much against their will.

Section 7 of the rugulations deals with the amount of compensation due and the conditions of payment:

Article 7
Right to compensation
1. Where reference is made to this Article, passengers shall
receive compensation amounting to:
(a) EUR 250 for all flights of 1 500 kilometres or less;
(b) EUR 400 for all intra-Community flights of more than
1 500 kilometres, and for all other flights between 1 500
and 3 500 kilometres;
(c) EUR 600 for all flights not falling under (a) or (b).
In determining the distance, the basis shall be the last destination
at which the denial of boarding or cancellation will delay
the passenger's arrival after the scheduled time.
2. When passengers are offered re-routing to their final
destination on an alternative flight pursuant to Article 8, the
arrival time of which does not exceed the scheduled arrival
time of the flight originally booked
(a) by two hours, in respect of all flights of 1 500 kilometres
or less; or
(b) by three hours, in respect of all intra-Community flights of
more than 1 500 kilometres and for all other flights
between 1 500 and 3 500 kilometres; or
(c) by four hours, in respect of all flights not falling under (a)
or (b),
the operating air carrier may reduce the compensation
provided for in paragraph 1 by 50 %.
3. The compensation referred to in paragraph 1 shall be
paid in cash, by electronic bank transfer, bank orders or bank
cheques or, with the signed agreement of the passenger, in
travel vouchers and/or other services.

They were offered alternate flights, arriving more than three hours later than originally scheduled - so the compensation CANNOT be halved.

So, that's the Right To Compensation bit sorted. Next,

Article 8
Right to reimbursement or re-routing
1. Where reference is made to this Article, passengers shall
be offered the choice between:
(a) - reimbursement within seven days, by the means
provided for in Article 7(3), of the full cost of the ticket
at the price at which it was bought, for the part or
parts of the journey not made, and for the part or parts
already made if the flight is no longer serving any
purpose in relation to the passenger's original travel
plan, together with, when relevant,
- a return flight to the first point of departure, at the
earliest opportunity;
(b) re-routing, under comparable transport conditions, to their
final destination at the earliest opportunity; or(c) re-routing, under comparable transport conditions, to their
final destination at a later date at the passenger's convenience,
subject to availability of seats.
2. Paragraph 1(a) shall also apply to passengers whose
flights form part of a package, except for the right to reimbursement
where such right arises under Directive 90/314/EEC

The flights did form part of a package.

It appears to me, having read Aticles 8 and 9 that Gill and party are due the 400 euros each AND were provided with the return flight at the earliest opportunity as in clause 1b above (highlighted). Article 8 does call for the choice to be given to the bunped passengers - this wasn't the case, but I suspect they would have opted for this option is so asked.

So, the only real question remaining is who pays ?

I still maintain the fault lies with the "Operating Air Carrier" although Kosmar didn't perform too well in their handling of the situation that they were clearly informed about by the carrier two days prior to the return flight's departure. This aspect again strengthens the cause for operational and not technical as being the cause of the bumping.

I suspect Gill will in the fullness of time update us on this thread as to what action she takes and with what success - and under which legislation.

Mike

Apologies - in the first few lines I refer to Kuoni - this shoul of course read Kosmar.

No inference of poor performance is laid against Kuoni.
Mike

Mike,

What if as I suspect in this case BMI operated on time with the right size aircraft. If Kosmar has chartered 195 seat aircraft from BMI to operate from RHO/ to BHX on the 3rd June and this did operate then all your EC regs are irrelevant. This would mean an overbooking by Kosmar not the carrier.

If BMI operated with a smaller aircraft due to technical problems then then this is covered within the regulations ( I dont think this happened in this instance ).

Kind Regards
Stewart

My husband has spoken to Ros's assistant this morning. I am not sure on the details yet as he is at work, but according to the lady we have a claim under EU Regulations - which one I'm not sure.

She also said that we need to request 'Statutory Compensation' and a Good Will gesture.

Will keep you all informed as I get more information tonight.

Many thanks to everyone who has contributed to this forum - you have been a great help, (mind you I'm still slightly confused about it all!!)

Gill

Thanks Gill.

I guess both Stewart and I would greatly appreciate knowing thos critical bits of info. namely, which EU regs and what "Statutory Compensation".

We've debated this concept on previous occasions - your case could be the perfect referee

Stewart, until we have more info, picking-up on your last post where Kosmar possibly overbooked - how do YOU think such a situation should be handled bearing in mind they knew the position 2 days prior to sched. return? Also bear in mind, Kosmar ARE the T.Op. and should know both aircraft capacities and booking numbers.

Mike

Hi Gill,

Good luck i am also interested in this outcome because as I have said in my post I think the carrier performed as requested so interested who the claim will be against.

Mike what I think isnt too relevant here. If they were overbooked they covered these by rerouting their next flight to GLA via BHX which was probably the best operationally option. However if I was Kosmar I would have paid for the rooms for the extra night and meals as an apology.

Kind Regards
Stewart

Mike

We believe (though cannot prove) that Kosmar knew way before they told us that our flight was overbooked.

One of the Excel staff told us that she had been rostered to stop off at Birmingham "a while ago". When we tried to find out exactly when she knew this, she clammed up and said "at the end of May but it didn't come from me"!

Will keep you all informed of our progress - or lack of it!!!

Gill