United States-based Kiwi suing Air New Zealand over flight cancellation

A United States-based Kiwi is suing Air New Zealand over a cancelled flight and has accused the airline of selling tickets for “ghost flights” during the global Covid-19 pandemic.

But Air New Zealand claims the flight cancellation was out of its control due to the ongoing effects of Covid-19 and rejects the notion it is knowingly selling tickets for flights that won’t go ahead.

The Kiwi airline offered California-based lawyer Gerard Murfitt a refund but it was an alternative transport option he needed to get himself and his wife Diana out of Tahiti, where they would be holidaying on their way home to New Zealand for Christmas.

When Air NZ refused to do so, Murfitt “reluctantly” filed a claim against the airline with the County Court Online in London.

On August 3 Murfitt, who also spends time in Britain and New Zealand, bought premium economy tickets to fly from Papeete in French Polynesia to Auckland in December.

Less than four weeks later Air New Zealand’s code-share partner, Air Tahiti Nui, informed Murfitt all flights scheduled to fly that route had been cancelled until January 9, 2021.

Murfitt requested Air New Zealand arrange equivalent transport for him on another airline, which the carrier lists as an option for those affected by cancelled flights in its conditions of carriage.

However the airline refused to do so despite Murfitt pointing out flights remained available from Papeete to Auckland, via Los Angeles. Instead he was offered a refund.

Dissatisfied with Air New Zealand’s handling of the situation, Murfitt filed an online civil money claim with the county court in London requesting £3000 ($5848) damages. He had since accepted the court’s offer of a mediation meeting in November to try to resolve the issue before the claim was dealt with by the judicial system.

Murfitt argued the terms set out that a refund or credit was only available when the airline was unable to transfer the customer to another scheduled flight or secure travel on an alternative airline.

The airline offered him economy seats on a flight from Los Angeles to Auckland which would still leave Murfitt footing the cost of getting from Papeete to Los Angeles and then making the long-haul journey in a cheaper class of seat than he paid for.

Murfitt has been forced to purchase more expensive alternative flights himself to make sure he did not end up stranded.

But Air New Zealand general counsel Jennifer Page said under the airline’s conditions of carriage there was no contractual obligation on it to provide alternative transport when a flight was cancelled due to the impacts of Covid-19.

“In some cases, we may be able to agree with a passenger to provide alternative transport, however it is not always possible to reach such an agreement,” she said.

“Where cancellations and suspensions occur due to the impacts of Covid-19 and the resultant related travel restrictions, Air New Zealand is contractually entitled to provide a credit in lieu of a refund.”

However, Murfitt also argued the cancellation of his flight was not beyond the airline’s control or caused by Covid-19 because the pandemic existed before he bought the tickets.

“The Covid-19 pandemic clearly existed on a worldwide basis well prior to August 3rd so claimant is absolutely dumbfounded by defendant’s position that the ‘Covid 19 pandemic’ somehow came into existence sometime during the four-week period between the date of purchase and the date of defendant’s cancellation,” his submission stated.

“The reality is that it’s clear to everyone that the defendant has been, and continues to, sell flights which it has no plan on operating at all (i.e. “ghost” flights) in order to raise cash and then stick unwary passengers with flight credit which expires after 12 months.”

Air New Zealand group general manager of commercial, strategy and alliances Michael Williams said the airline set its schedule and sold tickets “with every intention of operating that published international schedule when it is possible to do so. We do not sell seats on ghost flights and reject that suggestion”.

“Due to the evolving governmental responses to Covid-19 and the ongoing nature of travel restrictions around the world, it has been (and remains) necessary for the airline to constantly review its international schedule and make changes to that schedule as more information comes to light.

“Unfortunately that can mean schedule changes and cancellations on shorter notice than in normal times. The ongoing impact of Covid-19 and continuance of these travel restrictions has meant Air New Zealand has had to extend the suspension of several services, including its Tahiti service.”

Murfitt said filing the claim was a “warning shot” to Air New Zealand, but added that due to the interactions he had had with them he was seriously considering lodging a class action lawsuit in the US.

“I was expecting a resolution but now they are putting me to real expense. That’s why I’m thinking of filing a suit in the US.”

He believed there were many others who had been forced to take a credit without realising they had the right to a refund or another flight which was why he was considering class action.

This comes as the New Zealand Herald this week revealed the airline had been ordered by the Disputes Tribunal to refund a customer for his changed and cancelled flights.

Air New Zealand said that case was the fourth heard by the Disputes Tribunal this year but the first time it had been ordered to pay.

The company was still considering appealing the decision.

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