On October 3 2008 two passengers who were booked on Aerolineas Argentinas (AR) Flight 1135 from Madrid to Buenos Aires failed to board the flight. The passengers alleged that they had not been able to board the flight due to overbooking, and that the next available flight was not until October 8 2008. The passengers further alleged that they had returned to Madrid Airport on October 4 2008 and made a claim. Conversely, AR alleged that the passengers had not arrived in time for the flight's departure and had consequently been treated as 'no-shows'.


The passengers sued AR for breach of contract. However, AR's expert witness confirmed that AR Flight 1135 had not been overbooked and that the passengers had failed to board the flight because they had not arrived in time to do so. In light of this, the first-instance court rejected the passengers' complaint and ordered them to pay legal fees and expenses, despite the fact that they had obtained the benefit of cost-free litigation.(1)

Both passengers appealed the decision on the basis that the first-instance court had failed to take into account:

  • the fact that AR had – in response to the passengers' legal letter claiming breach of contract – offered the passengers monetary compensation;
  • the fact that the agency that had issued the airline tickets had paid the passengers' hotel expenses for October 3 2008 to October 4 2008, thereby indicating that it had accepted liability;
  • the fact that the expert witness report had discussed irregularities between AR's October 3 2008 and October 4 2008 flights; and
  • relevant documents that the passengers had allegedly filed.

The passengers also objected to the high legal fees imposed by the court.


The First Chamber of the Civil and Commercial Court of Appeals observed that much of the evidence produced by the passengers was unverified and, as such, the first-instance court had not been obliged to consider it.(2) Rather, it had been obliged to consider only the evidence that was binding to the case.

The court considered the expert witness's report that the passengers had been no-shows. In addition, although AR's October 4 2008 flights had been fully booked, the court observed that the irregularities cited by the passengers pertained to the characteristics of the aircraft that had operated on October 3 2008 and October 4 2008. The court also considered the fact that no other passengers had made complaints of overbooking, and the fact that AR had written 'n/s' (ie, no-show) next to the passengers' names in its register for October 3 2008.

Section 7 of the Ministry of Economy, Public Works and Services Resolution 1532/98 states that, in accordance with a carrier's requirements, passengers must present themselves at the check-in office of the carrier or its authorised agent or the departure airport for such purposes as administrative compliance, document inspection, baggage preparation and other departure procedures. If a passenger fails to do so, he or she will be classed as having failed to be present for boarding and the carrier can apply without prejudice the no-show policy set forth in its regulations and the resolution. Section 7 further states that no departure will be postponed because passengers arrived late to the airport or other prescribed departure point, and that carriers will be liable for no loss or expense incurred by passengers who fail to comply with the resolution.

Moreover, the court held that the fact that the passengers had made a claim with AR's office on October 4 2008 demonstrated only that they were at the airport on that date. It did not prove the alleged overbooking or that they had arrived at check-in on October 3 2008 in time to board the flight.

The First Chamber of the Civil and Commercial Court of Appeals ratified the first-instance court's decision.


This decision sets a good precedent as passengers in Argentina frequently use overbooking as a defence when they arrive late to the airport. This is despite the fact that Section 12 of Resolution 1532/98 states that if a passenger is denied boarding, the carrier must provide ancillary services such as rescheduling the flight to the next available one, endorsing another airline, immediately providing a refund (if requested) or – in certain cases – providing monetary compensation.

For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email ([email protected]).


(1) In accordance with Section 78 of the Procedures Code, plaintiffs who provide evidence that they have a case but who cannot pay court fees and expenses will be exempted from those expenses.

(2) Suñer and Josefina v Aerolineas Argentinas, First Chamber of the Civil and Commercial Court of Appeals.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.