Monarch delays & Compensations. Listed flights denied in O.P.

urban469 wrote: »

The intolerable sacrifices bit is so important, thanks. Just to make this absolutely clear in my mind, we are interpreting the repeated references to 'beyond the control of the airline' as 'anything that wouldn't cause intolerable sacrifices'. Is that a fair reading of the situation?

Yes. I think this in unambiguous. Para 41 of Wallentin says that, in order to avoid paying compensation, the airline "must establish that, even if it had deployed all 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 from leading to the cancellation [modified post-Sturgeon to delay] of the flight."

urban469 wrote: »

But in the first bit that you mentioned, I agree that Wallentin establishes the non-inherent bit. But my concern is just looking back at Recital 14 (in the preamble to the Regulation) which mentions "unexpected flight safety shortcomings" as a possible EC (as I mentioned a few posts back).

It does, that's right. But Wallentin addresses this point directly in para 23. It says that technical failures could be classed as ‘unexpected flight safety shortcomings’, but is categorical that "the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin."

I don't want to get in circular arguments, but I think both points are pretty well covered. In short, to be an "unexpected flight safety" exemption, for which compensation does not need to be paid, it can't be normal technical failings that happen as a consequence of the experience of flying a plane, and the ensuing delay must be out of the control of the airline (which means it must do everything short of an "intolerable sacrifice" to prevent the delay - including getting you another plane or crew).

This is consistent with the purpose of 261/04, which is described in Sturgeon as "a high level of protection for air passengers", and is also consistent with the lobbying of the airlines who, as Mark has noted, have pressed for these stringent conditions to be rolled back and to be given more time (likely to be between 5 and 12 hours, according to the EU's recent press release) to address mechanical issues. If going tech was extraordinary circumstances, the airlines wouldn't have pushed for this amendment!

I am not a lawyer - it bears repeating - so if others take a different view of this interpretation, I'm happy to be challenged on it.

Vauban and Mark2Spark, these two replies really sum it up for me, so thank you. I think it's been a really useful discussion.

For the sake of simplicity, we're saying that although a tech problem could be an EC according to the Reg, the bar is set very high (intolerable sacrifices and the 'high level of protection'). Also, it comes down to the magnitude of the other ECs (terrorism/manufacturer withdraws an aircraft model) as compared to the problem with my plane on the day.

Mark – good point about attempts to find seats on other carriers, and the burden of proof.

Forgive me if this feels like I'm milking the discussion for all it's worth, but... I just want to go back to the 'inherent' bit for a moment. How do we nail down that a fuel leak or windscreen crack or whatever *is* an inherent part of running an airline. That's the only breathing space I can feel that Monarch still have in this argument...

Please can someone offer me a little advice.
My plane from Barcelona to Manchester zb517 on the 3rd September 2012 was delayed over 5 hours. We were told when we arrived at the airport that our delay was due to a knock on effect from an earlier incident which later resulted in a plane from Larnaca being diverted to Birmingham. This explanation for the delay was confirmed by the cabin crew on the plane and by a passenger who was speaking to a Monarch employee on the phone whilst waiting in the airport. On my return I filed a request for compensation but this was originally denied until the ruling in October. Monarch then agreed to consider it but it was denied and the reason given was that the plane had a cracked windscreen. I wrote again and asked them to check as their version was not consistent with the explanation given to us in Barcelona. Monarch made no comment on my version and would not give me any more information about the cracked windscreen. I did say that I would take legal action and they gave me the name and address of the person to correspond with. I was just about to send my NBA when I noticed on this forum that the Larnaca flight (ZB 647) had been compensated so I am not sure how to proceed. Do I cite the reasons given in Barcelona or the alleged cracked windscreen? I would really welcome some advice as to my next steps. I have copied in the details of the delay to the Larnaca flight which seems consistent with the story we were given. Would anyone be able to confirm why the passengers on that plane received their compensation.
Many thanks


Departure Scheduled time Arrival Scheduled time
Select Larnaca (LCA) 03/09/2012 01:30:00 Manchester Int. (MAN) 03/09/2012 04:40:00
Select Larnaca (LCA) 03/09/2012 08:34:00 Birmingham Intl. (BHX) 03/09/2012 11:20:00
Select Birmingham Intl. (BHX) 03/09/2012 12:20:00 Manchester Int. (MAN) 03/09/2012 12:40:00