Is London Overground excluded from the Delay Repay system or not?

[BRX]

Journey planners present journeys on London Overground as National Rail and I can get the normal range of national rail tickets from a LO station to elsewhere on the NR network.

However it's very unclear whether, if a delay on a journey leg on LO causes my whole journey to be delayed, I can claim delay repay in the normal way. The TfL webpage suggests that for delays of >30 minutes I can do this via my contactless account (which I do have) but following this track, I am sent to a webform that asks me only about my start and finish points on the LO network.

There is mention of a phone number if I have a "paper ticket" (in my case I had an e-ticket). There are a few closed threads on here which seem to suggest differing outcomes from phoning or emailing LO.

Regardless of how difficult TfL make it - am I entitled to a normal delay repay compensation for the whole of a multi-leg journey - or are they only required to refund me for journeys wholly on their network?

 

[Watershed]

London Overground (LO), as with the Elizabeth line (XR), is a National Rail operator which falls under the National Rail Conditions of Travel (NRCoT). This means they're obliged to pay compensation of a minimum of 50% of the cost of a single or 25% of the cost of a return if you arrive 60+ minutes late, with proportional arrangements for season ticket and multi-day ticket holders. Any entitlement to compensation beyond that minimum level, as specified in condition 33 of the NRCoT, is based on the operator's choice to offer a more generous policy, such as Delay Repay.

TfL operate a "service delay refund" policy for their LO and XR services, whereby they offer compensation of 100% of the cost of your ticket (it's unclear whether this is halved when using a return) if you arrive 30+ minutes late for delays that aren't outside their control. This is limited to journeys within the TfL PAYG area though, so for journeys that extend beyond this area you can't claim under this policy and have to fall back onto the NRCoT minimum.

TfL are very poor at handling NRCoT condition 33 claims in my experience. The people who they advise you to call appear to know nothing about this entitlement. It may be more fruitful to write them a letter (how old-fashioned, I know!) or to send in a claim by email - they don't advertise their email but from replies I've had, it's customerservice [AT] tfl.gov.uk

NRCoT compensation would be calculated based on your delay in reaching your final destination. It would also include split tickets, where applicable.

 

[redreni]

TfL are very poor at handling these in my experience also. So much so that I wouldn't recommend ringing the phone number, as you will likely need to escalate the matter within TfL and perhaps to the Rail Ombudsman.

I've only just received my delay repay compensation for a 31 minute delay on the Elizabeth Line after having to email about half a dozen times and lodge a complaint with the Ombudsman. I did receive £50 compensation for the earlier mishandling of the complaint, though, which TfL acknowledged included false information being provided by customer services staff, including managers.

The issue in my case was that the delay was under 60 minutes so the cause of the delay was in issue. For a delay over 60 minutes, the TfL Conditions of Carriage still purport to restrict service delay refunds to delays within TfL's control, but this is plainly at odds with the National Rail Conditions of Travel which provide a right to compensation for delays of 60 minutes or more, regardless of fault.

I don't know if they'll try to say they're only liable for the journey you made on their network, not the rest of your journey. Their policy is usually to pay out at the PAYG rate even where the customer has used a paper ticket. Be prepared to be polite but persistent, is my advice.

I would write them a letter.

 

[BRX]

London Overground (LO), as with the Elizabeth line (XR), is a National Rail operator which falls under the National Rail Conditions of Travel (NRCoT). This means they're obliged to pay compensation of a minimum of 50% of the cost of a single or 25% of the cost of a return if you arrive 60+ minutes late, with proportional arrangements for season ticket and multi-day ticket holders. Any entitlement to compensation beyond that minimum level, as specified in condition 33 of the NRCoT, is based on the operator's choice to offer a more generous policy, such as Delay Repay.

TfL operate a "service delay refund" policy for their LO and XR services, whereby they offer compensation of 100% of the cost of your ticket (it's unclear whether this is halved when using a return) if you arrive 30+ minutes late for delays that aren't outside their control. This is limited to journeys within the TfL PAYG area though, so for journeys that extend beyond this area you can't claim under this policy and have to fall back onto the NRCoT minimum.

TfL are very poor at handling NRCoT condition 33 claims in my experience. The people who they advise you to call appear to know nothing about this entitlement. It may be more fruitful to write them a letter (how old-fashioned, I know!) or to send in a claim by email - they don't advertise their email but from replies I've had, it's customerservice [AT] tfl.gov.uk

NRCoT compensation would be calculated based on your delay in reaching your final destination. It would also include split tickets, where applicable.

Thank you.

It sounds like it's not worth my while chasing them for a 30 minutes overall journey delay, then. (The overground service was something like 15 minutes late but a missed connection meant I was 30 minutes late at my final destination, well outside London).

I wish they'd just state this clearly on their website.

For future reference, if a LO delay causes me to miss a connection for a subsequent time-specific ticket, presumably the normal rules still apply; that is, I can take next available train etc?

 

[Watershed]

Thank you.

It sounds like it's not worth my while chasing them for a 30 minutes overall journey delay, then. (The overground service was something like 15 minutes late but a missed connection meant I was 30 minutes late at my final destination, well outside London).

I wish they'd just state this clearly on their website.

I'd say it's still worth at least submitting a claim. If it's for a small amount though, I could understand if you decided not to, or decided not to pursue it further if it gets wrongly rejected or undercalculated.

For future reference, if a LO delay causes me to miss a connection for a subsequent time-specific ticket, presumably the normal rules still apply; that is, I can take next available train etc?

In principle yes, since you are travelling under the NRCoT just in the same way as you are with LNER, GTR etc.

The important thing is to allow enough time for connections, of course. The official connection times across London are much higher than the amount of time you can realistically manage it in, but if you don't allow that time then you would not have the right to take a later train if you missed your booked train on an Advance.

Another wrinkle comes if you are using PAYG and delays are known about at the point you touch in. It could then be argued that, much like with buying a paper or eTicket after delays were known, you would not be entitled to the usual missed connection rights. For this reason it may be better to rely on through or at least pre-purchased tickets, even if this works out slightly more expensive. To be clear though, this isn't a LO/XR-specific issue - this potential issue applies to all National Rail services where you use PAYG, on the various schemes across the entire country.

 

[BRX]

I'd say it's still worth at least submitting a claim. If it's for a small amount though, I could understand if you decided not to, or decided not to pursue it further if it gets wrongly rejected or undercalculated.

Unless I've misunderstood what you wrote above though, for a 30 minute delay, if they rejected my claim then it wouldn't be wrongly rejected because they are only obliged to compensate for delays over 60 minutes.

== Doublepost prevention - post automatically merged: Monday at 12:15 ==

Another wrinkle comes if you are using PAYG and delays are known about at the point you touch in. It could then be argued that, much like with buying a paper or eTicket after delays were known, you would not be entitled to the usual missed connection rights. For this reason it may be better to rely on through or at least pre-purchased tickets, even if this works out slightly more expensive. To be clear though, this isn't a LO/XR-specific issue - this potential issue applies to all National Rail services where you use PAYG, on the various schemes across the entire country.

Yes, this is already my strategy for longer distance journeys, I often purchase tickets from my home station in south london even if it might be cheaper to purchase a ticket from the main london terminal and travel there on contactless/PAYG. It means I don't have to build in so much of a safety buffer when deciding when to set off from home.

 

[redreni]

Unless I've misunderstood what you wrote above though, for a 30 minute delay, if they rejected my claim then it wouldn't be wrongly rejected because they are only obliged to compensate for delays over 60 minutes.

== Doublepost prevention - post automatically merged: Monday at 12:15 ==


Yes, this is already my strategy for longer distance journeys, I often purchase tickets from my home station in south london even if it might be cheaper to purchase a ticket from the main london terminal and travel there on contactless/PAYG. It means I don't have to build in so much of a safety buffer when deciding when to set off from home.

TfL's Conditions of Carriage provide for compensation for delays of 30 minutes or longer on London Overground and the Elizabeth Line.

The National Rail Conditions of Travel provide for compensation for delays of 60 minutes or longer in all cases, and for shorter delays where provided for in the TOC's Passenger Charter.

 

[BRX]

TfL's Conditions of Carriage provide for compensation for delays of 30 minutes or longer on London Overground and the Elizabeth Line.

Their conditions of carriage say:

8.1.4 Refunds on tickets sold for use on the National Rail network are made in accordance with
the National Rail Conditions of Travel

They also say:

8.2.3 If your Tube or DLR journey was delayed by 15 minutes or more for reasons within our
control, you may apply online for a refund. We will refund you the single pay as you go fare for the
journey on which you were delayed. If you bought a paper single or return ticket, we will refund the
cash value for the delayed Tube journey. You must apply within 28 days of the delayed journey.

If your London Overground or Elizabeth line journey was delayed by 30 minutes or more for
reasons within our control, you may apply online for a refund. We will refund you the single pay as
you go fare for the journey on which you were delayed. You must apply within 28 days of the
delayed journey

If I've bought a national rail ticket, and LO provide just one leg of that journey, then what's written above doesn't seem to apply because there is no "single pay as you go fare" for the journey on which I was delayed - my journey was from a LO station to somewhere well outside of London. It says I may apply online for a refund, which I've done, but it would only let me enter start and finish locations within the LO network. So perhaps it will refund me what I would have paid for that short journey on PAYG - which is about £3, but that's a quite small proportion of my overall ticket cost which was around £22. So, different from the 50% compensation offered by most TOCs.

The National Rail Conditions of Travel provide for compensation for delays of 60 minutes or longer in all cases, and for shorter delays where provided for in the TOC's Passenger Charter.

As far as I can see, London Overground (nor TfL) don't have a passenger charter.

 

[Watershed]

Unless I've misunderstood what you wrote above though, for a 30 minute delay, if they rejected my claim then it wouldn't be wrongly rejected because they are only obliged to compensate for delays over 60 minutes.

Yes, sorry - you are right. I missed the fact that the delay was 30 minutes.

Yes, this is already my strategy for longer distance journeys, I often purchase tickets from my home station in south london even if it might be cheaper to purchase a ticket from the main london terminal and travel there on contactless/PAYG. It means I don't have to build in so much of a safety buffer when deciding when to set off from home.

Same here. I'd happily pay the ~£1 premium for a through ticket to/from the relevant Underground Zones, vs using PAYG for that part, to cover all eventualities. If travelling at times when peak PAYG fares are charged and you have a Railcard, it can even work out cheaper.

 

[redreni]

Their conditions of carriage say:

8.1.4 Refunds on tickets sold for use on the National Rail network are made in accordance with
the National Rail Conditions of Travel

They also say:

8.2.3 If your Tube or DLR journey was delayed by 15 minutes or more for reasons within our
control, you may apply online for a refund. We will refund you the single pay as you go fare for the
journey on which you were delayed. If you bought a paper single or return ticket, we will refund the
cash value for the delayed Tube journey. You must apply within 28 days of the delayed journey.

If your London Overground or Elizabeth line journey was delayed by 30 minutes or more for
reasons within our control, you may apply online for a refund. We will refund you the single pay as
you go fare for the journey on which you were delayed. You must apply within 28 days of the
delayed journey

If I've bought a national rail ticket, and LO provide just one leg of that journey, then what's written above doesn't seem to apply because there is no "single pay as you go fare" for the journey on which I was delayed - my journey was from a LO station to somewhere well outside of London. It says I may apply online for a refund, which I've done, but it would only let me enter start and finish locations within the LO network. So perhaps it will refund me what I would have paid for that short journey on PAYG - which is about £3, but that's a quite small proportion of my overall ticket cost which was around £22. So, different from the 50% compensation offered by most TOCs.



As far as I can see, London Overground (nor TfL) don't have a passenger charter.

Well, quite, and if you read the Conditions of Carriage as if they were the relevant TOC's Passenger Charter, they go above the minimum requirements of the NRCoT inasmuch as they do give compensation for delays of 30 minutes or longer when the minimum standard is 60, but in lots of other respects they purport to limit your rights in ways not permitted by the NRCoT. For example, by appearing to limit compensation to the applicable PAYG fare even if you hold a paper ticket, and by limiting all delay compensation (irrespective of the length of delay) to delays within TfL's control. That's why I had to write to them half a dozen times telling them I bought my National Rail ticket pursuant to the NRCoT and that's the contract, whatever their Conditions of Carriage say.

It is true that the entitlement to compensation for delays of less than 60 minutes under the NRCoT is said to be limited to cases where the TOC's Passenger Charter provides for it, but I just pointed to TfL's public-facing information that says they offer service delay refunds for delays of 30 minutes or longer and said I considered this engages the relevant part of the NRCoT. When they paid out, they did so in a way that rather fudged this issue (specifically, having sworn blind the delay was for a reason outside their control therefore I wasn't entitled to anything under their Conditions of Carriage and that the NRCoT didn't apply at all, they suddenly shifted to saying "actually it was within our control" and paying up). I don't know if that was done to prevent the Rail Ombudsman considering whether the provisions in the NRCoT relating to sub-60 minute delays apply to TfL's National Rail concessions.

Maybe the collective wisdom of the forum can shed some light? Back in February TfL said the delay was caused by engineering work, then they said it was an obstruction on the line. Their final word on the matter when they paid out was that it was an obstruction on the line caused by equipment that had been stowed in the cess after overnight engineering works the previous evening finding its way onto the track later in the day, which they said was within their control. If the provisions under the NRCoT relating to sub-60 minute delays apply to London Overground and the Elizabeth Line (as I think they do) then TfL clearly has to pay out for that because it is not "entirely outside the control of the rail industry", which is the only basis on which TOCs can exclude claims for sub-60 minute delays under the NRCoT if their Passenger Charter otherwise provides for them. If the NRCoT provisions for sub-60 minute delays don't apply here, then TfL only has to pay out for this delay if it's within their control as per their Conditions of Carriage. I guess it depends if the contractor who didn't stow their equipment sufficiently securely was working for TfL or for someone else (e.g. Network Rail).

TfL certainly seemed keen that the Ombudsman shouldn't be troubled by the question of whether the NRCoT applies to sub-60 minute delays, anyway.

 

[BRX]

As I expected, my refund application via the TfL website has been rejected.



Although my overall journey was delayed by 30 minutes, the London overground leg was delayed by less than that. There's no way to input the overall journey delay during the application because it only asks for start and end points on the LO network.

It seems that maybe by emailing / arguing with them I could get some kind of refund that only represents the cost of the LO leg of the journey, but I'm not sure if I can be bothered to do this for a few pounds, other than to prove a point or as a matter of principle.

 

[redreni]

As I expected, my refund application via the TfL website has been rejected.

View attachment 182612

Although my overall journey was delayed by 30 minutes, the London overground leg was delayed by less than that. There's no way to input the overall journey delay during the application because it only asks for start and end points on the LO network.

It seems that maybe by emailing / arguing with them I could get some kind of refund that only represents the cost of the LO leg of the journey, but I'm not sure if I can be bothered to do this for a few pounds, other than to prove a point or as a matter of principle.

Were you using PAYG on that leg, then? You said above you normally buy tickets covering the entire journey if it's a longer distance one, but appreciate this journey may have been shorter. Personally, I've only ever had occasion to claim from London Overground or the Elizabeth Line when using a paper ticket and have always written to them, as no online option is provided. As you say, in these circumstances if you wanted to get your money then you would have to write or email. And as Watershed mentioned above, if the delay was known before you paid your fare (or any particular thereof) then that could cast doubt on whether you're entitled to anything.

When you say it's only a few pounds, I take it you are taking account of the total fare paid through to your destination, not just the fare for the London Overground part?

Edit: Incidentally, it's just a pet peeve, but does it grate on anyone else when big organisations claim they are "unable" to do stuff that they very obviously could do? Maybe they should or maybe they shouldn't refund the OP, but it's definitely not the case that they're "unable" to do so. Would it be so difficult to say something like "Having reviewed your claim, we have determined that you do not qualify for a refund on this occasion"? And then give the actual reason for the decision, rather than a smorgasbord of generic possibilities? Irrespective of whether the the system is automated, either the person or the software must know why this claim was rejected.

 

[BRX]

Were you using PAYG on that leg, then? You said above you normally buy tickets covering the entire journey if it's a longer distance one, but appreciate this journey may have been shorter. Personally, I've only ever had occasion to claim from London Overground or the Elizabeth Line when using a paper ticket and have always written to them, as no online option is provided. As you say, in these circumstances if you wanted to get your money then you would have to write or email. And as Watershed mentioned above, if the delay was known before you paid your fare (or any particular thereof) then that could cast doubt on whether you're entitled to anything.

When you say it's only a few pounds, I take it you are taking account of the total fare paid through to your destination, not just the fare for the London Overground part?

Edit: Incidentally, it's just a pet peeve, but does it grate on anyone else when big organisations claim they are "unable" to do stuff that they very obviously could do? Maybe they should or maybe they shouldn't refund the OP, but it's definitely not the case that they're "unable" to do so. Would it be so difficult to say something like "Having reviewed your claim, we have determined that you do not qualify for a refund on this occasion"? And then give the actual reason for the decision, rather than a smorgasbord of generic possibilities? Irrespective of whether the the system is automated, either the person or the software must know why this claim was rejected.

This specific journey was Denmark Hill to Lewes via Clapham Junction, on an e-ticket off peak single, overall cost twenty-something pounds. The LO leg was Denmark Hill to Clapham Junction, which was delayed by less than 30 minutes but caused me to miss my connection at Clapham Junction, and trains from there to Lewes are half-hourly. The delay was not known to me when I purchased the ticket.

It seems I'd need to write or email - the reason I filled in the online form was a result of what it says on this page:

London Overground and Elizabeth line delays

Information on if and how you can get a refund if you were delayed on a London Overground or Elizabeth line journey.

tfl.gov.uk

Specifically:

If the delay happened in the last 28 days and you were delayed for 30 minutes or more, you can claim a refund with contactless and Oyster account.

I seemed to satisfy all these criteria so started the process but it was only at the end when it asked for my start and finish points that it became obvious it wasn't going to consider onward delays.

Arguably, where it says a bit further down:

Paper tickets and National Rail smartcards​

If you travelled using a paper ticket or a National Rail smartcard and want to apply for a service delay refund, call us on 0343 222 1234 Monday to Friday 08:00-20:00 (charges may apply).

That's what covered me, assuming that "paper tickets" actually means "national rail tickets" not literally "paper tickets" (I had an e-ticket).

My main complaint here is that TfL don't make it sufficiently clear what I can and can't claim for. Fair enough (to some extent) if they don't engage with the Delay Repay scheme under 60 minutes - and fair enough (to some extent) if their policy is to make it time consuming to apply when there is an entitlement. But I wish they would just make clear what options are and aren't available to me, to save me wasting time going down blind alleys.

 

[redreni]

I've always just assumed their online process only works for PAYG. I would treat an e-ticket like a paper ticket and would write to them.

I agree they don't make it clear. If their position is that their 'service delay refunds' for delays of 30-59 minutes are outside the scope of the NRCoT then it would help if they would say so. That would involve making a distinction, in their Conditions of Carriage, between delays of over 60 minutes and delays if 30-59 minutes, which they don't really do at the moment (except possibly obliquely where they set out the entitlement to delay compensation under the NRCoT). It's all highly unsatisfactory.

As I say, my personal view is the NRCoT entitles you to compensation for delays under 60 minutes if the TOC offers this, and TfL does with respect to delays of 30 minutes or longer on London Overground and the Elizabeth Line. I don't think their insistence on using their own terminology for everything should enable them to get out of their obligation, here. It's pretty clear that when they got the contracts to operate the various London Overground lines and Crossrail, the agreement was that they would offer DR30, not DR60. I expect their arrangements to be as favourable to me as those of any other DR30 TOC.

 

[Richardr]

What do they mean by the get out clause "the delay was caused by something outside our control"?

Many delays are strictly outside the train operator's control. Can they use this to suggest that the timing of the Clapham Junction to Lewes trains are outside of their control, and so they won't pay delay repay?

 

[yorkie]

What do they mean by the get out clause "the delay was caused by something outside our control"?

It refers to things like a fatality, or severe weather, etc.

Many delays are strictly outside the train operator's control. Can they use this to suggest that the timing of the Clapham Junction to Lewes trains are outside of their control, and so they won't pay delay repay?

It doesn't mean that.

 

[redreni]

It refers to things like a fatality, or severe weather, etc.

It doesn't mean that.

No, but it doesn't mean the same thing as "entirely outside the rail industry's control" as mentioned in 33.4 NRCoT, either.

33.4 provides that a Train Company"may not be obliged..." (whatever that means - are they obliged or not?) "...to pay compensation under this Condition..." (which I take to mean the whole of Condition 33) "...if the delay is less than 60 minutes and it's cause was entirely outside the rail industry's control. Each Train Company's Passenger Charter will set out any exclusions that apply to such claims in respect of their services."

Compensation under Condition 33 is, as far as I can make out, compensation under the industry arrangements (which are defined at 32.1.1), which is not expressly limited only to claims for delays of 60 minutes or more, and includes claims under the Train Company's Passenger's Charter (32.1.1.2).

The term "Passenger's Charter" is defined in Appendix B as "the document of that name or similar, published from time to time by that Train Company". So I don't think the fact the document where TfL sets out the entitlement to compensation for delays of 30 minutes or more on London Overground and the Elizabeth Line doesn't have "Passenger Charter" at the top alters the fact it is a "Passenger's Charter" as defined in the NRCoT.

As I say, it took me half a dozen letters to get TfL to pay out on a claim for a delay caused by equipment being stowed improperly in the cess and ending up on the line. It strikes me that's a good example of a delay that is not the TOC's fault but is not entirely outside the rail industry's control. I have never had a similar rejection from any other TOC on the basis that the delay was outside their control. So I think TfL don't necessarily play by the same rules as everyone else in this respect (among others).

 

[BRX]

It's pretty clear that when they got the contracts to operate the various London Overground lines and Crossrail, the agreement was that they would offer DR30, not DR60.

What makes this clear, in your opinion?

== Doublepost prevention - post automatically merged: Wednesday at 23:29 ==

I would treat an e-ticket like a paper ticket and would write to them.

In fact if you look again at their info page, the one I linked to earlier, under the first "before you claim" section, "paper ticket" has a hyperlink attached to it and if you follow it, the information it links to is all about the kind of paper ticket that TfL issues for travel within their network, the kind of ticket that was standard before Oyster & contactless appeared.

That strongly suggests that when they say "paper ticket" they are not talking about a National Rail ticket.

That info page seems essentially silent on what happens if you are travelling on an NR ticket.

 

[redreni]

What makes this clear, in your opinion?

I don't base that on any specific knowledge of the particular circumstances in which DfT awarded these contracts to TfL. It would just seem extraordinary that anybody would get a franchise agreement or management contract to run part of the National Rail network without DfT wanting to know what sort of delay repay they were going to offer. Though I must admit I don't know the exact chronology of some of the London Overground lines going to TfL in relation to delay repay becoming a thing, so I concede it's possible this might not have been part of the deal for the whole of the London Overground network. And if anyone is familiar with and able to share any relevant information, I'd be interested.

In fact if you look again at their info page, the one I linked to earlier, under the first "before you claim" section, "paper ticket" has a hyperlink attached to it and if you follow it, the information it links to is all about the kind of paper ticket that TfL issues for travel within their network, the kind of ticket that was standard before Oyster & contactless appeared.

That strongly suggests that when they say "paper ticket" they are not talking about a National Rail ticket.

That info page seems essentially silent on what happens if you are travelling on an NR ticket.

Except it does explicitly mention national rail Smartcards. Even when they were refusing to pay my recent claim against a National Rail paper ticket, at no stage did they suggest that I didn't hold a valid ticket or that the type of ticket I held meant I wasn't eligible for compensation. And they did eventually pay.

In fact, they paid way too much: it was a Network Railcard-discounted inboundary day Travelcard costing £11, so I would normally expect £2.75 (25%) for a 30 minute delay on one leg, but they paid 100% of the PAYG single fare for the journey (at the full adult rate, which I suppose is arguably correct seeing as they don't give the standard Railcard discount on PAYG - even on Oyster - to Network Railcard holders). Had I been travelling to, say, Edinburgh rather than South East London, however, their failure to base the compensation on the price of the ticket(s) might well have become the subject of a further dispute...

Their documentation is incredibly vague so it's hard to know what their position is, but as far as I can make out from their responses to me they seem to think the NRCoT only applies if the delay is over 60 minutes, and does not apply to anything less than that, so you only get a refund of the PAYG fare for the journey made (which by definition limits the value of claims to the PAYG area, even where the journey was longer), and only if their Conditions of Carriage do not exclude the claim. I doubt they would agree with my view that, by offering a 30 minute delay threshold in their Conditions of Carriage (which is a Passenger's Charter within the meaning of the NRCoT), they engage the NRCoT, and therefore the passenger may claim on the basis of the NRCoT and/or the TfL Conditions of Carriage (or a combination of both), but if and where the two documents conflict, that gives rise to an ambiguity which should be resolved in favour of the passenger as the non-drafting party.