Kupeli & Ors V Kibris Turk Hava Yollari Sirketi (t/a Cyprus Turkish Airlines) & Ors

A contract for carriage arose when a replacement booking was confirmed on the airline’s reservation system. The issue of a ticket was not decisive. Once confirmed, the airline could not cancel or alter the booking without the passenger’s authority, subject to any applicable force majeure qualification. A general invitation to stranded passengers to attend the airport, subject to availability, was not a unilateral offer capable of acceptance by attendance alone. Passengers without confirmed bookings therefore had no contract with the replacement carrier. Compensation under Regulation EC 261/2004 required a confirmed reservation to exist when the passenger presented for check-in; a reservation cancelled before that time was insufficient.

The claimants held tickets with Cyprus Turkish Airlines, whose operations were suspended after its Air Operator’s Certificate was revoked. Atlasjet arranged replacement flights for stranded passengers. The claimants alleged that Atlasjet had contracted to carry them, breached those contracts by cancelling or failing to provide flights, and was liable under the denied boarding regime.

The claims were selected as a Part 1 trial involving three categories: passengers with confirmed Atlasjet reservations, passengers told to attend the airport with their original tickets, and passengers promised replacement tickets without confirmed bookings. The central issues were when any contract arose, whether cancellations were authorised, and whether Regulation EC 261/2004 applied.

1. Contract formation. The court held that a contract arose when Atlasjet confirmed a booking on its reservation system. The passenger’s surrender of rights against CTA constituted consideration. A ticket or confirmation email was not itself contractually decisive. This conclusion was fact-specific, consistent with the approach in Dillon v Baltic Shipping Co (the “Mikhael Lermontov”) [1991] 2 Lloyds LR 155, which treated the timing of a contract for carriage as dependent on the circumstances.
2. Once a booking was confirmed, Atlasjet was obliged to provide a seat on the specified flight and had no unilateral right to change or cancel it. Mrs Atesogullari and Mr Ozkes established unauthorised cancellations and succeeded in breach of contract. Mrs Akguc did not, because the cancellation was probably made by the travel agent in accordance with her requirements. The Category 2 and Category 3 claims failed because no confirmed booking, and therefore no contract, had been established.
3. The airport arrangements did not amount to a unilateral offer. They were guidance subject to availability, destination and operational constraints. Attendance at the airport did not itself create a binding contract. Travel agents communicating the arrangements were not thereby given actual or ostensible authority to bind Atlasjet.
4. Regulation EC 261/2004 was inapplicable. Article 3 required both a confirmed reservation and presentation for check-in. The reservation had to exist when the passenger presented at the airport. The claimants did not satisfy that requirement. The court preferred this reasoning to the alternative argument based on Article 3(3), under which the passengers had travelled free of charge but within a commercial programme.
5. If the Regulations had applied, compensation would have been deducted from contractual damages under Article 12(1), to avoid overcompensation. The court relied on Sousa Rodriguez v Air France [2012] Bus LR 1596 at [38] for the rationale of compensating the passenger for the entirety of the damage.

The claims succeeded only for the two Category 1 claimants whose confirmed bookings were cancelled without authority. All Category 2 and Category 3 claims failed.