Bait and switch: should you be compensated for an inferior seat?
We ask readers if compensation is due when seats provided aren’t the ones advertised.
By Chris Ashton, March 14 2023
How many times have you boarded a flight to find your seat isn’t the one you booked and paid for? For example, an older aircraft that’s yet to receive the latest seat upgrade, despite the airline advertising that seat. The more you fly, the more often this can happen.
In the world of airline marketing and advertising, the newest seats and most modern aircraft almost always trump older models.
But if not all aircraft feature those seats, are the ads misleading? And should airlines compensate consumers when services aren’t as they expected?
These are questions we’re putting to readers after New Zealander Mark Morgan recently took successful legal action against Emirates on the argument that the business class seat he booked based on the Gulf carrier’s advertising wasn’t the one that turned up at the departure gate.
This wasn’t simply a case of last minute aircraft substitution, such as when a domestic A330 is downgraded to a Boeing 737, but rather a result of the Dubai-based carrier promoting to the New Zealand market a seat and aircraft – an entire travel experience – that in fact wasn’t available to Kiwi flyers.
In this case, it was an older Boeing 777-300 which not only lacked a fully lie-flat bed but also plushly padded seats, a personal mini-bar and the latest inflight entertainment system, including WiFi.
A comparison of the older and new model Boeing 777 business class.
Morgan argued he specifically booked the trip based on what Emirates was promoting and promising.
Emirates was ordered to pay NZD$13,555 (AUD$12,646), with that amount a reflection of both compensatory damages and the difference Morgan paid to upgrade to first class on one leg to receive a true life-flat seat.
Emirates argued its fine print allowed the airline to vary the services advertised. However, the legal disputes referee Laura Mueller disagreed, saying “Emirates advertised a business class service that consumers were very unlikely to receive.”
“This was the result of advertising a service that they were rarely delivering, not due to an occasional or one-off change of aircraft due to operational requirements.”
“The promotional materials were based on an updated/new business class seat and service that is not in place in the older aircraft that Emirates flies to NZ. The Fair Trading Act 1986 prohibits misleading and deceptive conduct in trade.”
The upshot? “The advertising of a service that Emirates knew would unlikely be delivered is misleading and deceptive.”
This leads to a larger question with potentially far-reaching impact: should airlines compensate travellers when they promise one thing and deliver something lesser?
As airlines rush to roll out and trumpet their latest business and premium economy seats, aircraft with the previous generation of product are still flying and passengers can be caught unawares.
Another way of looking at it is buying a 75-inch television to find a 65-inch scree inside the box: you can still watch television, but you certainly didn’t get the exact product you paid for.
Share your take with other Executive Traveller readers in the comments area below.
20 Aug 2012
Total posts 117
I say good on him! That emirates 777 business class product is appaling, especially if you end up in the middle seat.
Qantas - Qantas Frequent Flyer
23 Sep 2015
Total posts 33
Most definitely. I don't mind spending the money or points for an A330 to Perth as I see value in it but definitely not when it is a 737. To be fair this happened to me a couple of months ago and Qantas did notify me. When I contacted them they offered me an alternative but the timings weren't convenient. They happily changed me back to economy and refunded the difference
30 Mar 2014
Total posts 20
I hope your compensation / reimbursement was based on the economy prices available at the time of booking, not the usual Qantas rubbish of calculating the price difference based on the most expensive Flex fare?
20 Nov 2015
Total posts 478
Good to see Emirates being held responsible for what was very clearly a case of intentional misleading advertising. There should be more of this. It's one thing to swap out one aircraft for another, but this was a clear cut case of blatant deceptive advertising. On the local front, if I book business class on a Qantas A330 from say Sydney to Perth and it's swapped to a 737 then I feel Qantas should have some 'make good' measure considering how very different the business class seats are.
Qantas - Qantas Frequent Flyer
02 Apr 2017
Total posts 132
Yup. And laws need to be tightened around it.
In the Emirates case, where they were actually using misleading or false advertising it’s very clear cut, but there are plenty of cases where even if it’s not marketed, compensation should be due in case of aircraft swap. The number of times I’ve specifically booked an A330 with QF/VA specifically to get a bed, then had it bumped down to a 737 is appalling.
04 Sep 2019
Total posts 68
both products are bad........no aisle access for each business passenger......no thanks.
09 May 2020
Total posts 572
This product change “due to operational requirements” is very common in QF and various major full-service airlines plying in and out of Australian ports is far too common compared to preCOVID times, which is vexing considering we are almost at 18 months of open doors, and longer for other destinations so why pax are putting up with this is beyond me.
Ironically the majority of pax in economy class is unlikely to notice the difference when they swap metal (except when they paid extra for certain seats or premium economy) but the j class and higher is where most airlines get the most profit from the premium prices commanded by those seats, but these were also the discerning customers who WILL notice the difference.
So the fact that the major players are all doing this meant there isn’t enough international competition at this point for people to move their business elsewhere.
Aegean Airlines - Miles & Bonus
16 Jul 2019
Total posts 31
There seem to be two issues here. One, being an airline's need to make the occasional aircraft change for operational reasons and the second where they promote a product that is largely not provided in that market, such as bars in an all 777 market.
Legally, I'd say the airlines are covered through their contract of carriage for situation 1. But clearly not for issue two - where EK was selling something it never intended to deliver in the short term. I haven't read EK's submissions but would expect that one of the arguments in defence would be that passengers from NZ only get the inferior product until Dubai, after which they would likely get the latest seating to destinations such as London and Paris ect. But given that it takes 17 hours to get to Dubai from NZ, I wouldn't accept any court of law to buy that argument.
Airlines often treat equipment changes in an aloof manner when it comes to customer impact. This decision will hopefully be a good kick up the proverbial for those airline execs who don't take this issue seriously.
28 May 2022
Total posts 3
No matter what the excuse or reason is if an airline substitutes a superior product with an inferior product you should be compensated in some shape, way or form... It's not the end user who should have to pay for the substitution... Full Stop!
If an aircraft is delayed or has a malfunction, why should the end user be the one paying for the mishap? Yes, aircraft sometimes need to be substituted at the last minute, but above all of that, the end user should be compensated, it's good business practice to keep your customers happy.
27 Feb 2014
Total posts 5
A damages amount of $13k is hardly going to be any sort of deterant for this clear breach of law.
In this regard, i'd say despite 'losing' the case, it's actually a win for EK
QF
02 Nov 2012
Total posts 48
The publicity it's gaining though may result in more cases being brought
29 Jan 2012
Total posts 182
I agree - was a win for EK.
On an EK Y class A380 flight from Zurich to Dubai I traveled on prior to Covid, some young travelers seated near me asked the FA prior to take off when the bar opens and was advised after takeoff. They seemingly believed the bar was open to all passengers. When after take off, they asked where it was, they were told only for J and F class passengers. You could see their faces drop. They appeared to be novices to air travel and were totally unaware the advertising they were sold was not accurate.
So well done to Mark Morgan for making a stand.
20 Nov 2015
Total posts 478
I don't think that's a particularly good argument against Emirates for 'unfair advertising', I think it's more about their being as you say total novices to air travel. There's no way you could think the A380 bar is advertised as being available to all passengers even in economy!
Delta Air Lines - SkyMiles
16 Oct 2017
Total posts 157
If anyone affected by a substitution is planning to make a similar claim they'll need to have evidence of how often the substitution occurs. For example, if say 80% of flights SYD-PER promoted as a330 are actually downgraded to 738 then a good case can be made - as the NZ adjudicator said, it was a product the complainant was "unlikely" to receive. That begs the question, where is the line? Less than 50% substituted looks like a tough situation to prove.
09 May 2020
Total posts 572
@tommygun
Since the airlines and most media often use “preCOVID 2019” as benchmark, we should therefore expect the comparison should be 2019 substitution rate as reference rather than 50%. I would think if anyone pays a premium price for a product (keeping in mind they don’t get to the destination any faster than the cattle class, so the claims or focus on transporting the pax as scheduled despite the substitution as advocated by the airlines is a classic misdirection) they should expect far better than a 50-50 chance of getting a product they paid extra far more than economy class) for
Qantas - Qantas Frequent Flyer
12 Feb 2021
Total posts 21
TG did this to me in F class on 2 occasions in 2010 and substituted a domestic F (yep they did have one) 744 to SYD and as only pax they upgraded the J pax so was full . I recall the front screen on the whole flight showing a movie and staff were embarressed. They ooffered me 5k NH Alliance points. The other time they downgraded me in HKG when inbound plane went U/S . I noticed on flightaware that it had not left BKK and went J on a 333 and no refund processed. So good on that EK complaint as it was misleading advertising from the start. They should have bumped him to F anyway.
Safe traves everyone.
08 Mar 2023
Total posts 1
As a consumer, you are entitled to receive a service and/or experience that has been advertised, and for which you have paid for in good faith, unless there are unforeseen circumstances that prohibit the service and/or experience from being provided at the time of use. In these events, the provider should make every effort to inform the consumer of the change.
I’ve worked in the aviation industry for over 30 years, having spent a great portion of my career working for a commercial airline. From my experience, many of the commercial decisions made from Corporate don’t transfer to the cold-face of operations at airports & unfortunately many airline staff are left having to resolve these unnecessary issues which leads to unhappy customers and unhappy staff.
A little bit of transparency goes a long way.
11 Dec 2018
Total posts 9
Good for him, I can't think of any other industry where a company can advertise and sell you one product and provide you with something vastly inferior and then not compensate you for both the difference in monetary value (by way of actual cash refund) and then further cash compensation for inconvenience. I still surprised we aren't protected as consumers against this too - when you enter into what can only be described as an iron-clad 'contract of sale' with a company I would have thought there would be suitable legal protections in place to ensure they can't cheat you.
There should also be strict laws that compensation must be offered as cash refund out of funds you gave them as a customer. Providing customers with rewards points, flight credits or other future discounts aren't reasonable - nearly all these other options rely on you being forced to use their service again in the future just to get back what you should have received in the first place. In most cases if a company has not delivered what has been promised/paid for AND broken your trust, the last thing you want is to be forced to use them again.
I do a lot of travel & mostly business class - some of these experiences with overseas airlines come to mind, where actual refund amount for what I already paid wasn't offered :
Cathay Pacific - screwed us about on refunds during covid19 even though travel ban/border closures were on and cancelled our connecting flights. After unfairly charging us cancellation fees for remaining flights (which they wouldn't refund) they gave us a 'discount voucher' for holiday packages with their Holiday side business as apparent compensation. We didn't originally purchase any accomodation from them (and never would given their overcharged rates) and their voucher could only be used if we also bundled it with brand new flights from them. We told them where to shove it.
American Airlines : Flew first class Seattle <> Houston and the seat was completely broken. Didn't recline, arm rest completely broken and hanging on side of seat & tray table/entertainment system broken. Obviously had been like that for some time as that much damage couldn't possibly have 'just happened' on the previous flight (which may have been an acceptable excuse). After contacting them with email complaint next day they offered me frequent flyer points only useable with them - refused to actually refund me cash from my paid fair for failing to deliver what was promised.
Delta : Minor #firstworldproblem but had a First class Honalulu <> Seattle flight (~5 hrs) where it was advertised on their booking site as having wifi/internet (I would have chosen a different airline if not). I needed it for work due to deployment going on while I was in the air & had to be contactable. Of course no wifi available, not even due to broken system but flight never had the tech to begin with. Their excuse was 'whoops our website was wrong' - and begrudgingly offered me a single 'lounge' pass only useable in future if I booked through them again.
Needless to say we would never do business with any of them again so never received any of the so called 'compensation' offerings - rather a stupid business model for them if anything given they've no doubt lost any potential profit from me for good.
anyhow end /rant..
Qantas - Qantas Frequent Flyer
24 Jan 2019
Total posts 12
I had a dodgy business class seat on a nine hour red eye flight and wasn’t able to lie flat as the mechanism was broken. It wasn’t what I was expecting but because I was able to “take advantage” of the other services in that part of the plane the airline refused to compensate.
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