15 May 2017

Flight Delay Compensation – Extraordinary Ruling on Bird Strikes

Underside of plane flying
On 4th May 2017, The European Court of Justice (ECJ) returned an unexpected ruling in the case of Peskova & Peska -v- Travel Service (C-315/15). In direct contradiction to principles established in earlier rulings, and contrary to the opinion of the Advocate General Y. Bot, the Court ruled that bird strikes should be considered ‘extraordinary circumstances’.

In cases of ‘extraordinary circumstances’, claims are not payable. This therefore means that compensation should not be considered payable if delays or cancellations are caused by a collision between an aircraft and a bird.

Previous rulings of the ECJ have applied a two-limbed test for extraordinary circumstances; i.e. for an event to be considered as extraordinary, it needs to be:

• Beyond the control of the airline
• NOT inherent in the operation of an airline.

No cases about bird strikes have previously been ruled upon by the ECJ, but several cases have established the principle of ‘inherency’, generally meaning that events inherent in the operation of an airline (such as bird strikes) cannot be classified as extraordinary – meaning compensation should be payable.

Lower Courts such as UK County Courts have tried to follow this logic while determining if compensation should be payable, and often ruled that bird strikes – by their very nature – are inherent in the operation of an airline. As airplanes fly in the air, and so do birds, it would appear obvious that bird strikes are inherent in the operation of an airline. Furthermore, due to their frequency alone, bird strikes cannot really be considered ‘extraordinary’ in any sense of the word. Similar logic has also previously been applied to lightning strikes (the average plane is struck by lightning twice a year).

This most recent ruling seems to have disregarded this ‘inherency’ argument involved in previous rulings, and determined a ruling based only on the first of the two limbs – the element of control. If this and future rulings disregard the inherency argument, it throws into doubt what have almost become established principles in this area of law. This is bad news for air travellers, as it means that airlines will have to pay compensation in fewer delay cases – only having to prove that the cause of the delay was effectively beyond their control.

Claim industry insiders have speculated about this departure from previous rulings, and various theories have been bandied about to explain this ruling. It appears as if the ECJ are trying to redefine this area of law into a ‘negligence-based’ system, whereby the airline must be shown to have been negligent in order for compensation to become payable. However, it is unlikely that this case can redefine this whole area of law, due to previous contradictory rulings on key principles. These same principles are also likely to be tested again by the Court when other related cases are heard, and it remains to be seen if the Court will deliver future rulings with any consistency on the key principles of Regulation EC261/2004.

Although this case has shed confusion on previously-established principles, it has also provided welcome clarification on some other key areas of Regulation EC261/2004. One of these areas is the question of how to handle cases where the delay or cancellation was caused by more than one reason, for example where both an extraordinary and non-extraordinary circumstance have contributed to the delay. The Court ruled that the delay length must be determined by subtracting the delay caused by extraordinary circumstances from the total delay, hence evaluating the length of delay caused by non-extraordinary circumstances. Often previously in these circumstances airlines have tried to attribute the whole delay to the extraordinary circumstance, and hence asserted that the claim was not payable. This clarification will hopefully prevent this type of behaviour in future, and effectively means that some claims are now clearly payable which previously have been difficult to win.

Yet another area of Regulation EC261/2004 was also addressed by this ruling. In this case, following the bird strike, the aircraft was inspected for damage by a qualified engineer, who deemed the aircraft safe to fly. However Sunwing, the aircraft manufacturer, did not accept the authority of the engineer in question. Consequently, Travel Service flew an engineer to the location to carry out the checks again, which contributed further to the delay. As the airline did not prove to the Court that this check was in fact necessary, the Court ruled that the airline had not done everything possible to minimise the delay (having in fact lengthened it). This finding of the Court is welcome, as it protects passenger rights in these circumstances.

So this ruling has been a real mixed bag, upholding some passenger rights and casting doubts on others. We and others in the industry will be watching closely to see how future related cases are ruled upon, as it would appear that we are a long way yet from anything resembling clarity on Regulation EC261/2004, and the question of flight delay compensation.


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