Birdstrike : no "extraordinary circumstance"

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airazurxtror
Posts: 3769
Joined: 17 Nov 2005, 00:00

Birdstrike : no "extraordinary circumstance"

Post by airazurxtror »

A judge at Manchester County Court ruled that bird strikes do not count as an "extraordinary circumstance" which would exempt airlines from paying flight delay compensation, in line with EU law.

The decision was handed down after passenger Timothy Ash took Thomas Cook Airlines to court over a more than five hour delay on a flight from Antalya to Manchester in 2011.
District Judge Iyer ruled in favour of Mr Ash and others, ordering the holiday company to pay the group of four passengers €1600 (approximately £310 each).
He said: "For my part I observe that the word used is "extraordinary" rather than "unexpected", "unforeseeable", "unusual" or even "rare". Extraordinary to me conotes something beyond unusual. "Bird strikes happen every day, in fact many times a day, and would hardly be worthy of comment but for the delay which they cause.

Under EU law, passengers who arrive at their final destination three or more hours late can claim up to €600, as long as their delay was not caused by "extraordinary circumstances" including terrorism, extreme weather or industrial action.

However, a landmark court ruling last year threw out "technical problems" as a legitimate excuse for airlines to avoid paying out - handing the industry a potential bill of £750m a year.

http://www.heraldscotland.com/news/tran ... .124544209
IF IT AIN'T BOEING, I'M NOT GOING.

Stij
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Joined: 07 Mar 2005, 00:00
Location: Belgium

Re: Birdstrike : no "extraordinary circumstance"

Post by Stij »

If my flight is (just) 5 hours delayed due to a birdstrike I consider myself lucky and don't expect anything...

This is the pendulum to much to the other side...

Cheers,

Stij

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KriVa
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Joined: 31 Mar 2010, 20:15

Re: Birdstrike : no "extraordinary circumstance"

Post by KriVa »

I can't but agree with Stij. This is bordering on lunacy. While bird strikes may happen multiple times a day, they don't happen multiple times per day within the same airline. At least not regularly.
I'm afraid this case will have set a precedent, and we'll be seeing a lot more "USA-style" lawsuits in the coming years.

Hooray for common sense, just not today.
Thomas

sean1982
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Re: Birdstrike : no "extraordinary circumstance"

Post by sean1982 »

Cars crash every day, but if you crash yours isnt that extra-ordinary? :roll: The way that our legal system is sometimes disconnected from the real world is mind boggeling.

convair
Posts: 1945
Joined: 18 Nov 2011, 00:02

Re: Birdstrike : no "extraordinary circumstance"

Post by convair »

I agree with the above comments. Stupid judgement...

airazurxtror
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Joined: 17 Nov 2005, 00:00

Re: Birdstrike : no "extraordinary circumstance"

Post by airazurxtror »

Now, this is a judgement in favour of the traveller, and one should rejoice, I think.
Earlier, airlines used to consider each and every occurrence as "extraordinary" - in order not to pay the compensations due to the traveller. The airlines have thus forced the consumer to go to the courts, the pendulum has switched to the other side, and it's a good thing.
IF IT AIN'T BOEING, I'M NOT GOING.

Passenger
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Joined: 06 Dec 2010, 20:54

Re: Birdstrike : no "extraordinary circumstance"

Post by Passenger »

Probably a judge with a bad own Thomas Cook experience (*). The airline will go in appeal, so this verdict will not stand. I indeed disagree that this rule is "in favour of passengers". Off course it's nice for those handfull of passengers who get this amount onto their bank account. But such court rules make aviation less safe on long term, and that is not in favour of passengers.

In 2012, DEGAS (Dutch Expert Group Aviation Safety) warned in a report against the risk of a strong/severe interpretation of 261/2004:

“…In het algemeen zijn onverwachte technische storingen onvermijdbaar. Daarmee zijn ze onderdeel van de luchtvaart en horen ze in die zin bij de normale operatie. Tegelijk valt er, als alle procedures verder in orde zijn, niets aan te doen en is er dus sprake van overmacht. Anders dan vaak wordt gesteld kan veiligheid natuurlijk nooit de eerste prioriteit hebben… Er zal onvermijdelijk altijd sprake zijn van een afweging tussen meerdere, onderling tegenstrijdige doelen. Met die afweging is niets mis, zo lang die maar integer en controleerbaar plaats vindt. Het is echter niet handig aan de al bestaande krachten die veiligheid tegenwerken nog een extra kracht toe te voegen. En dat is precies wat met sancties wordt bereikt. In marginale gevallen zal de druk om niet de veiligste maar de goedkoopste weg te kiezen net iets groter worden. Maatschappelijk gezien een ongewenst resultaat…”

Translated, in brief:

…unexpected technical failures do happen in aviation. However, if all procedures have been followed, they are unavoidable and therefore are a force majeure…

…Contradict to what some say, safety is not allways the first priority. There will allways be a tradeoff between multiple conflicting goals. No problem with that, as long as this is done with integrity and accountability. However, a new factor is now added to the measures that conflict with safety. Penalties as per 261/2004 could become the decising factor for some airlines to choose for the cheapest solution, and not the safest solution. This is not what society needs…


See “Remmende voorsprong”:
http://www.adviescollege-degas.nl/Main/ ... enu-item-9

direct to the report = pdf 3,1 Mb:
http://www.adviescollege-degas.nl/Main/ ... 12-017.pdf

- - -

(*) edited after a remark - see below
Last edited by Passenger on 28 Apr 2015, 23:44, edited 1 time in total.

Reg E S Potter
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Joined: 19 Aug 2011, 11:17

Re: Birdstrike : no "extraordinary circumstance"

Post by Reg E S Potter »

@ Passenger

The County Court in England and Wales is not "just a regional court" but a national court with branches throughout the country whose jurisdiction is only limited by the monetary amount of the claim. You are correct in that the judgment can be appealed, and could ultimately go to the House of Lords and potentially create a precedent on the meaning of the word "extraordinary". As it stands this would probably not currently cause a problem for airlines outside England and Wales (Not Scotland or NI)

This will probably play on and on and will not have a direct impact on travellers for a number of years - uless, of course, the EU legislators make changes to their rules

Timash
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Joined: 28 Apr 2015, 21:47

Re: Birdstrike : no "extraordinary circumstance"

Post by Timash »

Maybe if the full details of the case were public then you could all pass judgement, as it happens this case is not as open and closed as it would appear on the surface. Should Thomas Cook airlines wish to release the exact details then I'm sure people's views would change and realise that this isn't about compensation, but about the way in which the airlines handle themselves and treat their passengers.

Passenger
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Joined: 06 Dec 2010, 20:54

Re: Birdstrike : no "extraordinary circumstance"

Post by Passenger »

Reg E S Potter wrote:...the judgment can be appealed, and could ultimately go to the House of Lords and potentially create a precedent on the meaning of the word "extraordinary". As it stands this would probably not currently cause a problem for airlines outside England and Wales (Not Scotland or NI). This will probably play on and on and will not have a direct impact on travellers for a number of years - unless, of course, the EU legislators make changes to their rules
Indeed, EU-rule 261/2004 will be reviewed. However, the European Parliament and the European Commission strongly disagreed on how this had to be done: the European Parliament only wanted a very short list with extraordinay circumstances (example a strike by ATC or extreme weather, closing an aerodrome), whilst the European Commission had a moderated view. Finally, the EU-C and the EU-P only agreed to disagree and to postpone the review till after the EU elections (May 2014).

If passengers think they are entitled for a compensation, they can file a complaint with a National Enforcement Body for 261/2004 at their choice (example: the Belgian Belgium the Bestuur der Luchtvaart – Administration de l’Aéronautique). All those NEB’s had a meeting on 12th april 2013 during which they’ve made a draft list with events that should be seen as extraordinary circumstances:
http://ec.europa.eu/transport/themes/pa ... s-list.pdf

On 23th July 2013, the British CAA has adjusted its online information with those guidelines:
https://www.caa.co.uk/application.aspx? ... l&nid=2263

I'm surprised to see that a British judge ignored this neutral aviation advise.

airazurxtror
Posts: 3769
Joined: 17 Nov 2005, 00:00

Re: Birdstrike : no "extraordinary circumstance"

Post by airazurxtror »

http://www.theguardian.com/money/2015/m ... ed-flights

Rules state that passengers flying with an EU-based carrier or from an EU airport who reach their destination more than three hours late can claim up to €600 (£448) plus expenses, per person if the delay is within the airline’s control.

Airlines can only refuse payment if the delay was the result of an “extraordinary circumstance” beyond their control and, previously, many had been claiming that routine technical problems fell under this definition.

Yet a ruling, upheld by the high court last summer, should have changed that. It involved a claim by Ronald Huzar against budget airline Jet2.com for a delayed flight. The airline said there was an unforeseen technical problem, amounting to “extraordinary circumstances” meaning it did not have to pay compensation.

Judges ruled against Jet2 and this was upheld by the Supreme court last October. It was hoped the ruling would clarify the strength of this common reason used to refuse a payout, but airlines continue to dig their heels in and ignore or contest the outcome.

So what is an extraordinary circumstance and what now isn’t?

This is the only defence available to airlines, and defined as circumstances “which could not have been avoided even if all reasonable measures had been taken”.

Typically, this refers to poor weather, industrial action or political unrest (the best way to find a full list is to go on to the CAA website and search for “extraordinary circumstances”).

However, technical problems such as general wear and tear and component failure should not be considered “extraordinary”. Neither should the crew or pilot being late.
IF IT AIN'T BOEING, I'M NOT GOING.

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