Last month the Canadian Transportation Agency ruled that Swiss had to honor first class tickets issued at a deep deep discount originating in Myanmar.
I’ve never sued to have a deal enforced, I’ve always wanted to be a part of a deal when an airline or hotel chooses to honor it, I do not feel at all badly throwing my hat in the ring for that. Writing about it isn’t ‘encouraging folks to do bad things’. It’s sharing something exciting that may lead to a once-in-a-lifetime opportunity, the way it has for others in the past.
Many tickets were honored under this deal, but tickets issued on Swiss ticket stock were mostly cancelled. Some consumers pursued the issue with the Canadian government and won.
Last week reader David J. sent me a copy of the response from Swiss appealing the ruling. (.pdf) (Update: I’ve now linked to a version of the file that includes only the first five exhibits by request of individuals involved whose email addresses were published in exhibit 6.)
SWISS suggests that since the fare was discussed online as a mistake, it was some form of conspiracy to take advantage of them. I’m not sure their claims in this regard are especially legally relevant (and in fact several of their specific claims are wrong) but rather framed to elicit sympathy — to make Canadian authorities want to reconsider their ruling.
Even as SWISS contends that customers were acting in bad faith by booking these tickets, they make several characterizations in their filing that was appear to be knowingly false. For the purposes of this reply, they suggest that there is important new information that the government should consider in re-opening its proceeding.
..there are other facts and circumstances pertaining to the Decision that have arisen due to the ongoing investigation of this matter by SWISS and that are germane to the issues.
To the extent that one of the facts “that have arisen” subsequent to the Canadian Transportation Agency’s decision is that this was viewed by many frequent flyers as a mistake fare, and discussed as such including on this blog, it’s an outright misrepresentation on the part of the airline. SWISS definitely didn’t discover this as a result of its “ongoing investigation” subsequent to the CTA’s decision.
In fact, SWISS e-mailed me directly immediately following the removal of the fare to ask me where I got it. On September 28, their US head of Corporate Communications emailed me,
Dear Mr. Leff,
Understand you are the responsible for View from The Wing.
May we ask you please where you received this information on behalf of SWISS from?
Thank you for your immediate attention in this matter.
Some additional items regarding the filing:
- In the year preceding this fare, Swiss sold only 17 tickets originating in Myanmar and only 2 with Montreal as the destination, none in first class. About 1000 tickets were issued on Swiss ticket stock for this fare.
- SWISS repeatedly suggests it shouldn’t be responsible for the tickets since they didn’t sell them — that online travel agencies sold the tickets on Swiss stock. That just suggests to me that they have an issue with the online agencies, not with passengers. And if the Canadian government accepted this argument then no airline would have to honor any fare booked through a travel agency.
- There are courts in the US that have rejected consumer claims (which are not obviously relevant to Canada).
- They represent their losses as the full retail price of one-way first class travel, which is disingenuous. And they list an additional cost as mileage earned from the tickets. But that’s double-stating the losses (since the miles would certainly be included in the price of full fare one-way first class travel) and overstates the cost (because Swiss won’t likely incur the full cost of miles for flights flown on other carriers and credited to other frequent flyer programs).
- Swiss contends that they were ‘targeted’ by unscrupulous consumers. In fact, few knew or expected their tickets would be issued on Swiss stock and indeed many of the tickets were issued on the ticket stock of other airlines (and honored).
I can’t speak to Canadian law, but certainly in US contract law (and common law contracts generally) there’s very much a concept of mutual mistake. Both parties realize that an error is involved and the contract is not binding. The US Department of Transportation has (only recently) developed rules requiring air carriers to honor mistake pricing.
In the past many mistake fares had been honored not on the basis of a contract between them and the passenger but between them and the GDS — airlines frequently have had contracts requiring them to honor any data they put into the system. (That’s what led to the Alitalia $33+tax business class Toronto-Cyprus fare getting honored… they started cancelling and Orbitz got their lawyers involved.) And of course many mistake fares have been honored purely on the basis of goodwill.
I can even think of one “mistake fare” that was intentionally loaded by an airline in order to generate publicity. Independence Air loaded some mistake fares around midnight one night, waited until a few tickets were purchased, and then called the Washington Post (“you see? it always pays to check our website! you never know the great deals you’ll find!”).
Now, the concept of mutual mistake is a muddy one in travel. As I say, mistake fares have been offered intentionally. Great deals are advertised — cruises from $2, even! What’s a mistake and how is a consumer to actually know? In this case, yes, we know. In this case Swiss is extra angry because while it was their ticket stock used (for some tickets) it wasn’t their fare.
I think it’s relevant that
- plenty of people have flown on the fare
- this isn’t the first time the fare has been offered, in fact it’s known as “round 3.”
- if they have recourse it shouldn’t be against the customer but the entity loading the fare, which they do have contracts with
I don’t expect travel providers to honor these deals, but I do hope they will. I think it’s pretty cruddy, though, to impugn people for making the bookings and for sharing a great opportunity. Great opportunities come along quite frequently. Sometimes they are honored. They are exciting. They’ve often been the subject of news stories as well, in the vein of once in a lifetime ‘manna from heaven’.