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Regulation EU 261/2004 and Extraordinary
Circumstances
EXTRAORDINARY CIRCUMSTANCES
If you have a potential right to compensation for compensation
from an airline you will sooner or later run up against the term "extraordinary
circumstances".
This is a complex area. However it is important to understand
this concept fully.
It is mainly because this concept is so widely misunderstood
that there is so much controversy. It is also the reason why
passengers are unsuccessful in obtaining the compensation they
feel they are entitled.
It is a difficult and voluminous area. You may have been frustrated
at your own efforts to get to grips with the area.
IN SIMPLE TERMS UNLESS YOU INVEST THE TIME AND BRAIN ENERGY IN
UNDERSTANDING THE CONCEPT OF EXTRAORDINARY CIRCUMSTANCES YOU
RUN THE RISK OF BEING GIVEN THE RUNAROUND
So you have being trying to get to grips with Extraordinary Circumstances
and are struggling. Don't blame yourself-why?
Because it unless you are a qualified lawyer and have a detailed
knowledge of airline operations it is most difficult even to
frame the right questions to ask.
Fortunately Flightmole can assist
Secondly there is a lot of confusing misinformation promulgated
about this area.
Therefore in dealing with Extraordinary Circumstances we have
to provide a legal treatment and interpretation of this concept.
If you are blessed with not being a trained lawyer you have to
think like a lawyer from now on.
Preliminary points about thinking like a lawyer.
When reviewing your rights under 261/2004 there are two most
important source materials
The Regulation itself
Judicial Precedent on this Article
Interpretation of Regulation 261/2004
The Regulation as you will know provides monetary compensation
in the event of a cancellation. The regulation also provides
a defence to the airline to pay compensation if the airline can
show that the the cancellation came about due to "extraordinary
circumstances."
The concept of extraordinary circumstances is just one element
of the defence.
The defence is that there have been extraordinary circumstances
to which the airline could not reasonably have been avoided.
The airline is not obliged to pay compensation if it can prove
that the cancellation was caused by extraordinary circumstances
which could not have been avoided even if all reasonable measures
had been taken.
Extraordinary Circumstances are not defined in the body
of the Regulation.
There are examples of what might constitute "extraordinary
circumstances". These are contained within the introduction
or in legal parlance "The Recitals" to the Regulation.
The Recitals are not strictly part of the Regulation and don't
constitute part of the Regulation. At most they are merely suggestive
or persuasive. They are not binding.
In the recitals the Regulation states “such extraordinary
circumstances might occur in cases of political instability,
meteorological conditions incompatible with the operation of
the flight concerned, security risks unexpected flight safety
shortcoming and situations that affect the operation of an operating
air carrier".
At this point it is most important to realise that the treatment
and interpretation of this regulation is needed to be subject
to a legal interpretation.
To someone who is not a qualified lawyer this may be difficult.
A particular degree of pedantry may be required. This is often
beyond the competence and interest of most commentators of this
regulation including journalists and consumer interest group.
When most commentators refer to extraordinary circumstances they
search for a convenient shorthand or truncation of the concept.
Even airlines do this.
This may be unhelpful and adds to the confusion surrounding this
area.
Many commentators refer to the defence as circumstances that
are being "beyond the control of the airline".
This is not the same as the concept provided for within the Regulation
and because the concept is not further expanded upon or defined
airlines are capable of filling this void of interpretation by
their own self-made interpretation of what the defence they would
really like to have.
However it is most important to realize that extraordinary
circumstances bring into account where they could not have been avoided even
if all reasonable measures had been taken.
The area of extraordinary circumstances believed most often cited
by airlines relates to "technical problems".
It is upon this area of technical problems that we an area we
will concentrate upon.
You are at an airport and your flight has been cancelled because
the aircraft has a "technical problem". The airline
may present this technical problem as an extraordinary
circumstance that justifies the cancellation of the flight. The airline also
relies upon this technical problem as a legitimate defence to
avoid paying monetary compensation to passengers.
The defence of "technical problems" is controversial
for many reasons.
Firstly unless you know the full circumstances surrounding this "technical
problem" and can review the detail of these circumstances
and supporting evidence it is difficult to asses whether an airline
has a legitimate defence to the obligation under the Regulation.
However the airline under the Regulation has the burden of proving
the defence
Therefore although an airline can present what is a prima facie
defence- this isn't enough-it has to go further. It has to demonstrate
the full defence.
The aircraft has a technical problem. This could be a legitimate
defence it may not be.
For example suppose the aircraft Captain has spilled his pre-flight
cup of coffee over the aircraft flight management computer. This
grounds the aircraft.
Arguable this might conceivably be an extraordinary circumstance
(he doesn't spill coffee every day-but it is not an unknown event)
but it is certainly an event that could reasonably have been
avoided.
Take the example one step further what if the flight management
computer developed a spontaneous internal fault. Is this an extraordinary
circumstance?
A large jet aircraft has literally millions of working components
and inevitably these fail. Indeed if a spontaneous failure of
an aircraft component caused the grounding of aircraft -very
few aircraft would leave the ground each day-at least anywhere
near to schedule.
Did the component have a backup, what was the maintenance regime
applied to that component and was this followed etc etc?
A detailed technical investigation would be needed to understand
the legitimacy of the defence and whether it came within the
allowable ambit of an extraordinary circumstances that the airline
and whether they had taken all reasonable measures to avoid the
circumstance.
Technical problems and operational set
backs-"the
dog ate my flight plan"
The initial issue we should ponder is to try to distinguish
between any initial "technical failure" or "bit
of fog" as an operational "set back" and whether
that in itself delivers to an airline an exceptional circumstance.
This exceptional circumstance has to be “extraordinary”.
Is it true to say that an airline could in almost always discover
some form of disruption to the operational harmony which the
airline could then present as an "excuse" to justify
that an aircraft could not leave the ground. ("The dog
ate my flight plan” type of excuse).
As an airline is not omnipotent could any one of these "set-backs",
when considered in isolation, justifiably be said to be beyond
their control-? Probably yes.
It is true that an airline can not control the unexpected dietary
wants of canines. However should not the airline keep stray dogs
out of the pilot briefing room and could the pilot just draft
another flight plan to replace the one now being digested by
our hungry dog?.
Therefore the conduct and anticipation of the airline is relevant
both pre and post the surfacing of the operational “set back”.
Therefore what appears to be relevant is how, in any particular set of circumstances,
an airline prepares and/or reacts to each and every one of these operational
set backs.
The SAS case question deals specifically with "technical problem" questions-i.e.
the inner airline voodoo of what keeps an aircraft in the air.
An aircraft with a technical problem can not in all circumstances by classed
as an extraordinary event. Perhaps not even in most cases. Undoubtedly in some
cases it could be.
Let us look at an extraordinary event and then
see when it becomes plain ordinary and how an airline responds
to these events.
Colin the 20m troll as an extraordinary circumstance and
technical problem
If a 20 meter tall troll named Colin descended upon Copenhagen
airport and took a bite out of the wing on an SAS Airbus
then just about everybody would agree that this is an extraordinary
circumstance
Colin, in his own extraordinary way, has brought about a
technical problem with the aircraft.
If Colin gained the habit of visiting Copenhagen airport
every Thursday afternoon at 4pm this starts to become less
extraordinary
and just plain ordinary and predictable.
We suppose there may be a distinction between an extraordinary
aviation industry event and a generic extraordinary event.
For a person walking down a street being struck by lightening
is an extraordinary event. For an aircraft this is much less
obvious. After all an aircraft is designed on the assumption
that it will be struck by lightning. The average pedestrian
is not designed for the event of a lightning strike.
However the question recently posed to the European court
in Kramme v SAS is not that technical problems are extraordinary
events but whether technical problems that cause
flight cancellation are extraordinary events.
Next let us suppose that Giant troll Colin chews the wing
tip of the Airbus but SAS has a spare aircraft available
in the
hanger next door. Colin's eating habits may not necessarily
be said to cause a consequent flight cancellation. There
is premature linkage of the notion of a technical defect
with
the automatic presumption of flight cancellation. What is
needed is examination is the airline's conduct in reaction
to the
technical defect.
There is much more that we can observe and comment upon and
we invite Flightmole users to do so in the forum.
For the moment let us suppose that operational set backs
-which includes ordinarily occurring technical malfunctions
could
be argued as standard fare for airlines and can be distinguished
from completely unforeseeable or even reasonably unforeseeable
events.
As can be seen the concept or extraordinary circumstances
has the potential for complex analysis.
However the key point for the moment is which party in any
argument-airline or passenger-has the burden of justifying
the defence and also the burden of dealing with any supposed
ambiguity.
Most legislation is indeed capable of differing interpretations
and hence the function of courts to determine any such ambiguities.
Anecdotal accounts suggest that airlines use the supposed
ambiguity in the legislation to the airline's advantage.
Journalist observers
often then level simplistic criticism at the legislation
itself as not being "clear enough" or accusing the legislation
of being full of "loop holes".
Flightmole provides an expert service to review claims for cancellation
compensation and advance these claim on a no-win no fee basis.
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