The Explainer: The flight of the Ghibli
I think you will be happy to get a question that doesn’t deal with the “big” story in cycling these days, so I want to offer you a chance to do that.
Sadly, my question involves an SOB of another sort, namely the airline I recently used.
I don’t do a lot of competitions outside of driving distance and I was excited to get a chance to compete in Europe this year. I packed my Cervélo P5 in the box it came in and then got a specially made plastic container for my wheels, including a Ghibli Ultra rear disk and a HED Tri-Spoke up front (yeah, I admit it, I am a geek). I had a great time and packed everything the same way I did for the trip over.
Anyway, when I got back to JFK airport, I picked up my luggage and my bike and then waited for the wheels. I waited and waited and then went to the baggage office to check. They had them there, but the box with the wheels was completely trashed. I’m sure you can imagine my reaction when I saw it and when I opened it, I freaked. The wheel box trashed. The top was open and there was a four-inch horizontal hole on both sides of the disc and my front wheel had one of its blades shattered. I have no idea what happened. Looking at my receipts, I have more than $5000 in damaged wheels.
I immediately notified the attendant and asked for a claim form. The baggage “service” guy said 1) that none of their equipment could have caused that particular damage, 2) that part of the problem is that I didn’t pack them well enough and 3) their “contract” limits damages to $3300.
They offered to refund my baggage charges, but are still “investigating” the rest of my claim.
It’s been two weeks and I haven’t heard a word. WTF do I do now?
In the words of a former president, “I feel your pain.” Actually, I can’t, since I would still be hard-pressed to put together an amazing time trial machine like that … so I guess I can only imagine your pain.
But I digress.
Let’s start with the damages limit. The agent was referring to the airline’s “contract of carriage,” which is essentially the air transport industry’s version of the End User License Agreement (EULA) that comes with every piece of software you’ve ever bought. Why the comparison? Well, because nobody reads those either.
The problem is that the contract of carriage usually includes a liability cap when it comes to lost or damaged luggage. A quick survey of three such contracts – United, Southwest and American – shows they all top out at the aforementioned $3300. The airlines do offer you the opportunity to purchase additional coverage (generally up to $5000) for each item, but it’s something you have to ask for. I do not believe – even when you check a clearly pricey item like a Cervélo P5 or wheels like yours – that the duty to offer additional coverage falls to the airline.
One other common theme that emerges from these contracts of carriage is that all of the airlines make a point of saying something along these lines:
United is not liable for property that has been lost or damaged due to security screening requirements. The Transportation Security Administration (TSA) assumes responsibility for security at airports. TSA is responsible for reviewing all claims relating to the screening of passengers and their baggage and, with limited exceptions, will determine whether claims should be paid and in what amount. In order to protect your rights, you must file a written claim with TSA and you should call the TSA Consumer Hotline at 1-866-289-9673 for assistance.
That’s important largely in that if the airline successfully argues that the damage to those wheels occurred while they – and other passengers’ luggage – were being screened by the TSA, they can avoid any liability. Just to make sure, go ahead and contact the TSA at that number and file the same claim with them. In other words, cover all of your bases.
I am a little concerned about the baggage agent’s claim that you didn’t pack your items well enough. I’ve seen bike-wheel-specific carriers and those are generally pretty secure. Indeed, from the sounds of it, someone would almost have had to ram a forklift fork through the thing to do the damage you described.
If you haven’t already done so, take pictures of everything and zoom in on the damaged portions so that you can offer detailed evidence of the damage and of the way you packed it.
The two-week wait you mentioned is annoying, to be sure, but it’s still a reasonable amount of time. I would make a pain of myself and maintain regular and polite (you know, keep it classy) contact with the airline’s claims department.
If they reject your claim or if they offer to pay less than the maximum, check to see if they have a built-in appeals process. If they do, use it. If they offer to pay you up to their liability cap, you have to make a decision. Do you accept the check and, therefore, waive any further claims, or do you take them on in court.
To start, do a bit of research and see if there are other suits pending out there. Several airlines have had to fend off individual and class action suits for poorly handled luggage and badly handled customer “service.”
I smiled when you mentioned that the airline offered to refund your baggage fee before doing a review of your claim. I’m not entirely sure, but that may stem from a 2010 lawsuit against American Airlines, which was sued for $5 million by a passenger whose luggage was lost and the airline took its sweet time in compensating her for her loss. To add insult to injury, the airline also refused to refund her a $25 “checked baggage fee,” even though the fee is purportedly to ensure the timely delivery of that baggage. No, I don’t think she won, but it may have left an impression on that and other airlines.
By the way, that particular suit noted that upwards of 2400 pieces of luggage handled by American are lost or damaged every single day.
It’s that level of mishandling that triggered a 2007 class action lawsuit against British Airways, when 13 plaintiffs sued the airline on behalf of themselves and any other passenger who flew an international BA flight between September 2005 and September 2007 and whose luggage was either “lost, damaged or delayed.”
The plaintiffs were able to offer evidence that the airline had been “inexcusably reckless” with their luggage. The airline took the claims seriously and moved quickly to settle, but with only the 13 original plaintiffs, heading off a class action suit that one can only imagine would have included tens or even hundreds of thousands of potential claimants. The details of the settlement are confidential, but you have to bet it was pretty hefty to stave off that potential disaster.
I raise those largely to encourage you to look around and see if there are other, similar suits brewing against the airline you used. If so, do your best to get in on it and get your damaged wheels fully covered in the process. Yes, it will take time, but it could be worth the trouble.
Keep in mind that a suit like that will probably be contested on a contingency basis, meaning that you will have to pay a significant portion (between 30 and 40 percent) of the settlement to the attorney handling the case, as well as your share of expenses.
If you find that your only option is to file suit on your own, it’s likely that you will have to hire an attorney with money up front and that ain’t cheap. If you end up fighting over the difference in value between your wheels ($5000) and the liability cap ($3300), it’s probably not worth enlisting a pricey attorney to do battle over the $1700 difference.
Still, before you accept any settlement offer, check in with an attorney to go over your options. Often, that initial consultation is free and the lawyer may offer suggestions to boost your settlement. (I’m going to go out on a limb here and guess that a guy with a $6000 bike and $5000 wheels is not going to qualify for your local legal aid society, but the rest of you can always consider that option.)
It may be that if you are able to show the airline was – as in the British Airways case – inexcusably reckless, you might be able to sue for punitive damages in addition to your underlying economic damages claim. It would be a tough case to make, but as the BA case showed, it is doable. No matter what, though, it will take time.
The bottom line, though, is that you should think about any offer they make before accepting it. Don’t just take the money and run, without realizing that you’re waiving your right to any further claims regarding these damaged wheels.
Good luck and let me know how things turn out.
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.