Legal
Ian Skuse is a partner and head of Piper Smith Watton LLP’s Aviation, Travel & Tourism department. Piper Smith Watton LLP (
www.pswlaw.co.uk) is a business and private client law firm based in Westminster
COUNTING THE COST
When does delay to travel become ‘super extraordinary’? McDonagh had booked a flight
CONSUMERS ARE INCREASINGLY aware of their rights to care and compensation from airlines when they are denied boarding, their flight is cancelled or there is a delay. The European jurisprudence and interpretation of European Regulation EC 261/2004, in relation to the Sturgeon case, found that delays in excess of three hours should be treated as a cancellation, with passengers compensated by reference to the length of their journey. More recently, in the case of Nelson versus Lufthansa, Tui and others, the European Court of Justice (ECJ) clearly rejected the airlines’ arguments that a flight should not be treated as cancelled where a delay of three hours or more occurred. It did not surprise the market
that Ryanair introduced an EU 261 compensation levy for Ð2 for bookings in 2011 with the announcement: “These unfair and discriminatory EU 261 expenses cannot be loaded on to airlines without being passed on to passengers. Ryanair’s Ð2 EU261 levy will help to defray these costs which are not recoverable from governments, air traffic control providers or airports, and which therefore fall on the airlines in their entirety.” In an unusual case brought
before the ECJ on January 31 this year, the court was asked to determine a claim for expenses brought by Denise McDonagh against Ryanair and relating to the volcanic ash disruption. In essence, Ryanair sought a ruling from the ECJ that it should be absolved of all responsibility in circumstances that were so extraordinary (‘super extraordinary’) so as to leave passengers uncompensated.
with Ryanair from Faro to Dublin, scheduled to operate on April 17, 2010, for Ð98. On April 14 the volcano in Iceland erupted, and the resultant ash cloud led to air traffic authorities closing the air space over a number of states on April 15 because of the risks to aircraft. McDonagh’s flight was cancelled due to the closure of Irish air space, and Ryanair flights to
The costs will inevitably be passed on to the passenger in increased ticket prices
Ireland did not resume until April 22. McDonagh was not able to return to Dublin until April 24. During the period between April 17 and 24, McDonagh was stranded in Faro and incurred expenses of Ð1,129 for accommodation and subsistence.
Regulation 261/2004 states that airline obligations should be limited or excluded where there were events caused by extraordinary circumstances, which would not have been avoided even if all reasonable measures had been taken. Examples are set out, including political instability, meteorological conditions incompatible with the operation of the flight, and security risks. The regulation states that the airline is responsible to provide care to passengers, including meals and refreshments, and hotel accommodation where appropriate when a flight is delayed for more than two hours (flights less than 1,500km) or for three hours or more (for flights in excess of 1,500km). It also states that when a flight is cancelled, the airline has not only to offer the right of
care, but also provide compensation unless the airline can show that the cancellation “is caused by extraordinary circumstances”. Due to the volcanic ash, the
proper analysis here seemed to be that airlines were obliged to provide care to stranded passengers, but no compensation was payable as these were clearly extraordinary circumstances. But in this case, Ryanair failed to provide McDonagh with the stated right care, which led to the Ð1,129 expenses. Ryanair refused to pay this money on the basis that the Icelandic volcanic eruption was not “extraordinary circumstances” but was in a separate category of “super extraordinary circumstances”, which released the airline from its obligations to pay compensation or to provide care. The suggestion was that the
ash from the volcanic eruption fell into a new category where the carriers should not have to finance the care of stranded passengers, such as McDonagh. The ECJ firmly rejected Ryanair’s
argument. It held that where a cancellation arises due to “extraordinary circumstances” the obligation to provide care to passengers set out in the regulation should be complied with. It rejected any concept of the
category of “super extraordinary”. This meant that Ryanair ought to have financed the meals and accommodation during the period that the flight was delayed. Any efforts by the carriers to limit
the scope of EU 261/2004 over the past two years have been met so far with failure. The ECJ is clearly intending to protect passenger rights and to ensure that the regime for compensating passengers for extended delays and cancelled flights is maintained and extended. The extension of these rights to delays in excess of three hours has generated a claims-market against airlines. By commoditising volumes of passenger claims in this way, this will inevitably lead to these costs being passed on to the passenger in increased ticket prices. ■
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