LEGAL IAN SKUSE Struck down
A new judgement offers relief to airlines by narrowing the ‘extraordinary circumstances’ in delay compensation
T
HE RECORD NUMBER OF CLAIMS regarding passenger rights under EU Regulation 261/2004 has seen flight delay compensation become a top issue for carriers. For the airline industry, showing the delay was caused by “extraordinary circumstances”, thus avoiding delay compensation has become key. Claims where delay relates to unexpected crew sickness, weather conditions, collisions with airport steps and other equipment failures, security issues and Air Traffic Control will give the potential for the airline to defend the claim.
EXTRAORDINARY CIRCUMSTANCES Article 5(3) of Regulation 261/2004 states: “An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”
An airline has to show that the cause of the delay was “extraordinary circumstances” and that it took all reasonable measures to seek to prevent the delay that occurred to avoid payment of delay compensation.
THE CASE LAW Typically (because of the low value for the claims), these cases are heard in the County Court. Decisions (while often put into printed form) are not recorded in the law reports, and their judgements are not binding. There are instances where contrary
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judgements are given. Many cases have gone against the airlines, and few decisions have been made by the European Court. However, there is now a new decision of the European Court in favour of the airline on the defence of extraordinary circumstances.
Ian Skuse is a partner in Blake Morgan’s Aviation team (blakemorgan.
co.uk) and is based in their London office. Ian was a partner with Piper Smith Watton LLP, which merged with Blake Morgan LLP in August 2015.
THE PESKOVA CASE On 4 May 2017, the European Court handed down judgement in the case of Peskova v Travel Service AS concerning whether a bird strike to an aircraft amounted to extraordinary circumstances. The aircraft collided with a bird during landing, requiring mandatory safety checks which resulted in a delay exceeding three hours. In rejecting the passengers’ claims for compensation the court found: “In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as “extraordinary circumstances” within the meaning of Article 5(3) of Regulation 261/2004.” If bird strikes are extraordinary because they are not “intrinsically” linked to the operating systems of aircraft and outside of the air carrier’s control, then other similar causes of delay, such as lightning strikes, should be extraordinary as well. Currently, English courts have found against lightning strikes being extraordinary as lightning is
a well-known risk and, therefore, inherent in normal airline activity. However, following Peskova, it is likely that these decisions will be of no effect.
REASONABLE MEASURES Article 5(3) requires airlines to show that they took reasonable measures to prevent the delay to argue a full defence. The airline should be able to show that, “even if it had deployed all of its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able, unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time, to prevent the extraordinary circumstances with which it was confronted leading to the cancellation of the flight or its delay equal to or in excess of three hours in arrival”. In the Peskova case it was
therefore necessary for the airline to show that preventative measures were taken to prevent the bird strike, as well as demonstrating that another flight or re-routing was not possible to reduce the delay. Peskova extends the line of good defences for airlines to flight delay compensation claims. Airlines will continue to argue extraordinary circumstances in cases of crew illness, strike action, political instability, Air Traffic Control issues, bird and lightning strikes, weather and other events beyond their control which result in delays.
BBT July/August 2017 101
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