- The Washington Times - Wednesday, March 7, 2007

FLORENCE, Italy. — There has been a hue and cry in the States because Jet Blue canceled hundreds of flights over Valentines Day, and many more flights were delayed. And the problem is not with just one airline. The Federal Aviation Administration reports 2006 was the worst year ever for flight delays.

Look at the U.S. Transportation Department’s Web site on passenger “rights” and see what it says about flight cancellation and delays (https://airconsumer.ost.dot.gov/publications/flyrights.htm#delayed”).

DOT says you have whatever “rights” each airline is willing to give you, and that’s that. A right is not something some airline, or any other company, is ever willing to give you. As William H. Vanderbilt put it so eloquently, “The public be damned.”

The story is different in Europe. The European Union has regulations stipulating passengers’ rights whenever a flight is canceled or significantly delayed, or when passengers are bumped. The passengers’ “bill of rights” is prominently displayed all over airports. Go to the EU’s Web site on air passengers’ rights (https://europa.eu/rapid/pressReleasesAction.do?reference=IP/05/181&format;=HTML&aged;=1&language;=EN&guiLanguage;=fr).

There you’ll find a list services airlines must provide when a flight is canceled or substantially delayed. The rules covering delays come into effect when a short flight (up to 1,500 kilometers) is delayed by more than two hours and when longer flights are delayed even longer. If the cancelation or delay is caused by “extraordinary circumstances,” such as a storm, over which the airline has no control, it must get the passengers to their destination, or if necessary, back to their points of origin, as quickly as possible. It must also provide meals, hotel accommodations, communications, etc. If the airline cannot prove “extraordinary circumstances,” it must provide cash compensation as well, from a minimum 250 euros ($325) for short flights up to 600 euros ($800) for long ones.

The U.S. does have some protection for passengers who are bumped. That’s because in 1972, Allegheny Airlines, now U.S. Air, made the ludicrous mistake of bumping Ralph Nader off a flight from Washington to Boston where he was to address two consumer groups. Allegheny offered to “compensate” Mr. Nader by providing him an air taxi flight to Philadelphia connecting to another flight to Boston that would have got him in two hours later, and, presumably, two hours late for his two speeches.

As anybody who has ever heard the name “Nader” would expect, a lawsuit was timely filed. The U.S. district court awarded Mr. Nader and the Boston groups a total of $61 in compensatory damages and $50,000 in punitive damages. The appeals court reversed, holding Mr. Nader had no right to sue. The Supreme Court unanimously reaffirmed the district court ruling. And, of course, the airline had a large pile of lawyers’ bills to pay.

In due course, the U.S. did adopt rules on overbooking, but speaking as a fairly frequent flyer who owns no airline stock, it would appear the rules are designed as much to protect the airlines from Nader-type lawsuits as they are to protect passengers — just as “workmen’s compensation” laws are designed as much if not more to protect employers than to protect employees.

This is the classic American model. By comparison with the rest of the world, it’s rare for laws or regulations in the U.S. to prohibit anyone from doing whatever he wants, and then, when someone gets hurt, the courts, in their cumbersome, time-consuming and expensive way, sort of try to figure out afterward what would be equitable. And, of course, courts frequently disagree on what is equitable.

That means it can be very difficult for anybody to know what will happen under identical circumstances in different jurisdictions, unless and until a number of such cases are taken to the Supreme Court, with added delays and expenses, and the court decides — if it wants to decide — what should be “equal justice under law.”

This is how Americans have dealt, or failed to deal, with Love Canal, asbestos, tobacco, silicone breast implants, faulty tires, poorly designed SUVs, fraudulent “prime rate” loans, insurance companies that collect premiums and don’t pay claims, and so much more. As a result, we have a more or less permanent “liability crisis” that some think can be cured only by “tort reform” — restricting the rights of people who get hurt to go to court to get compensation after the fact because there were no rules to keep them from getting hurt in the first place.

Europe has a different model. Here many products and services are regulated “from the cradle to the grave.”

Under the EU system, passengers get some protection, because airlines have a real incentive to minimize bumping, cancellation, and delays. On the other hand, the airlines get protection, because they aren’t subject to Nader-type lawsuits and the costs of insurance and lawyers’ fees our system entails.

Of course it goes much further than air passengers. Take a look at the bottom of your computer’s mouse, or your I-Pod, or your electric toothbrush, or inside your cell phone, and chances are pretty good you will see two cryptic letters: “CE.” You’ll find them on electrical appliances, medical devices, crash helmets, goggles, electrical tools, and much more. The “CE” shows the product has been tested, and, in some cases the manufacturing process certified, before the product could go onto the market in Europe. This is part of a strict, legally enforced, government-run program set up by the EU to protect workers and consumers. Simultaneously, the system protects manufacturers from frivolous litigation, because if a product is certified under the “CE” system, the manufacturer is largely protected from any liability.

The “CE” system doesn’t cover all products, but there are equivalents for other things, such as food, pharmaceuticals, chemicals, and motor vehicles.

Of course the European model is expensive. It costs a lot to have products tested. But which would you rather do, pay engineers and technicians to reduce the number of people who get hurt, or pay insurance companies and lawyers to wrestle with the aftermath when more people get hurt?

George H. Lesser has reported for more than 30 years on international political and economic developments for both U.S. and European publications. He has been based in Washington, New York, London and Brussels, and lives in Washington, D.C., and Florence, Italy.

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