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

Mark2spark

Care to expand Ich?
I mean the ECJ wording could have been better, and clearly stated that last minute tech issues aren't EC's unless 'this or that' is the root cause of it. And they also obviously considered a 3 hour time line as being reasonable.
So issues being discussed on here are all beyond this 3 hour threshold. So reasonable has already had it's chance, according to the regulation/appeal judgements.

blondmark

bluep wrote: »

Does anyone find point 2 rather ridiculous. I work in taking cases to Tribunal (in a completely different area of the law I hasten to add) and if that kind of argument came up in one of my cases, the judge would have absolutely no time for a defendent who, despite having all records showing conclusively that someone did something specific, still wanted them to prove it. Monarch should know without doubt whether the claimant checked it, provided their passport and were definitely on that flight.

Definitely - that 'try on' does smack of desperation. The Civil Procedure Rules require the Defendant to submit all evidence relating to the claim, including evidence that will harm their defence, so they will be breaching their CPR obligations by failing to evidence the Claimant being a passenger on that flight.

The defence itself is a classic 'home goal'.

Take it bit by bit:

5) The Defendant submits that the aircraft scheduled to operate the Claimant's flight suffered a technical fault on the outbound sector in London Gatwick. For clarity the outbound sector was the flight previous to the Claimant’s flight, namely ZB248 (LGW - SSH). Passengers had boarded the aircraft and the aircraft was being pushed back from the stand when suddenly and unexpectedly cracks began to appear in the windscreen on the right hand side.

So the Defendant admits that the Claimant's flight ZB249 did not suffer from Extraordinary Circumstances; the flight before that one ZB248 is alleged to have suffered from ECs instead.

6) An aircraft cannot fly with cracks in the windscreen as once the aircraft is airborne the cracks will spread and there is a risk that the cabin will begin losing pressure. Consequently the aircraft had to return to stand and the passengers unloaded whilst necessary engineering work was undertaken.

Admitted, but this has nothing to do with the Claimant's flight. This only relates to an incident before take-off on ZB248, i.e. on the previous flight which the Claimant was not on.

7) As a result the Claimant's flight ZB248 was delayed.

Notwithstanding that they have already said that the Claimant's flight is ZB249 (not ZB248) a goal has been scored in the Claimant's favour.

Case C-22/11 Finnair Oyj v Timy Lassooy is authority for the proposition that Extraordinary Circumstances on one flight does not result in Extraordinary Circumstances on any subsequent flight.

The Regulation itself expressly cites that for Extraordinary Circumstances to form the basis of any defence, they must occur to "the flight concerned", i.e. the Claimant's flight.

Further, the delay was caused by one factor alone: the operating carrier did not have sufficient aircraft to fly the Claimant. In Xa ZR 15/10, the BGH held that that the operating carrier must show that it exhausted all efforts to avoid a delay by any means available to it including, for example, having available spare aircraft, which the Defendant has failed to do.

When completing the Allocation Questionnaire, there is a section where you can point out any relevant matters to the Court. You should point out that the Defence contradicts itself in that para 5 states that the flight prior to the Claimant's flight is ZB248, yet para 7 states that the Claimant's flight going the opposite direction is also ZB248. The Claimant should request that the Court order the Defendant to amend its Defence to clarify this issue accordingly.

Ich_2

Reasonable is one of those great words that get included but not defined, the closes would be the term "reasonably practicable" as often used in H&S law and is defined.
Many folk talk about having a replacement aircraft, so at a main base is 3 hours enough to change aircraft if a defect is noticed at the last minute. Yes it can be done but is it reasonable to take staff off other aircraft (loaders etc) and delay them.
If there isn't a spare there is 3 hours reasonable to get one?
Is it reasonable to expect an airline to have expensive spare parts at every place an airline flies too along with spare aircraft and crews.

It seems that the CAA has suggested (if what the airlines say is correct) that a defect immediately before or during a flight is reasonable to be accepted as an EC, I would agree!

Part of the ruling in the Alitalia case was that the defect had been known about the previous night and that the airline could not show it had done enough to correct the situation for a flight the following morning by the use of it's resources, a reasonable ruling but accepting that there may be a time element.

blondmark

Ich wrote: »

Reasonable is one of those great words that get included but not defined, the closes would be the term "reasonably practicable" as often used in H&S law and is defined.
Many folk talk about having a replacement aircraft, so at a main base is 3 hours enough to change aircraft if a defect is noticed at the last minute. Yes it can be done but is it reasonable to take staff off other aircraft (loaders etc) and delay them.
If there isn't a spare there is 3 hours reasonable to get one?
Is it reasonable to expect an airline to have expensive spare parts at every place an airline flies too along with spare aircraft and crews.

It seems that the CAA has suggested (if what the airlines say is correct) that a defect immediately before or during a flight is reasonable to be accepted as an EC, I would agree!

Part of the ruling in the Alitalia case was that the defect had been known about the previous night and that the airline could not show it had done enough to correct the situation for a flight the following morning by the use of it's resources, a reasonable ruling but accepting that there may be a time element.

Case law continues to define the boundaries of what is reasonable in the context of 261/2004 claims so we don't need to lose any sleep over anyone's subjective opinion of reasonableness - we just follow what the ECJ has already decided in analogous cases.

Vauban

blondmark wrote: »

Case law continues to define the boundaries of what is reasonable in the context of 261/2004 claims so we don't need to lose any sleep over anyone's subjective opinion of reasonableness - we just follow what the ECJ has already decided in analogous cases.

Wallentin is reasonably clear about what is regarded as reasonable, I think:

"41. That party 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 of the flight."

To my mind, this puts the onus on the carrier to find an alternative aircraft, chartering if necessary to minimise the delay.

Vauban

The other thing I find odd about Monarch's defence is when they say:

8) The Defendant intends to rely upon the decision inWallentin (C-549/07 Wallentin-Hermann v. Alitalia) where the court held that "technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its control". The Defendant submits that cracks in the windscreen can arise without any initial indications given they are subject to extreme changes in temperature and altitude. Consequently the cracks and the resulting delay were in fact beyond the Defendant's control.

Paras 23 and 24 of the Wallentin judgement say:

23. Although the Community legislature included in that list ‘unexpected flight safety shortcomings’ and although a technical problem in an aircraft may be amongst such shortcomings, the fact remains 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.

24. In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid such problems and to take precautions against incidents compromising flight safety that those aircraft are subject to regular checks which are particularly strict, and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity.

I don't disagree that cracks can happen at any time, which is why it is surprising that Monarch did not have the facilities at Gatwick to deal with this issue. Indeed, the fact that windscreens are, as part of the experience of flying at high altitude, "subject to extreme changes in termperature and altitude", means that exposure to such pressures - and the possibility of cracks - is "inherent in the normal exercise of the activity of the air carrier", and therefore by legal definition not covered by the concept of extraordinary circumstances.

This is surely the crux of the matter, isn't it? What have I misunderstood? How can anyone interpret this any other way?

111KAB

NorthumberlandLady wrote: »

Hi!
when sending off my letter to Monarch I thought i would save time and also send off their claim forms at the same time.
With their claim forms there are guidance notes on filling in the forms and they say that you can only make a claim if the delay was NOT caused by EC
This is what they say in their guidance notes:-

"You may not be entitled to compensation despite suffering a delayed flight where the delay was caused by Extraordinary Circumstances. The CAA has issued guidance on the meaning of Extraordinary Circumstances as including but not limited to the following:
a) Aircraft technical faults discovered just before flight or during the flight concerned....."

Surely a technical fault DOES NOT come under the classification of an EC so how can they get away with writing this?

When the Monarch (4 page) form for compensation was first released by them I sent a copy to the CAA to inform them that they were, in my opinion, being misrepresented. After weeks the CAA came back to me to say I should take the matter up with the airline - ie they couldn't care less.

bluep

As far as I'm concerned their guidance isn't worth the paper it is written on. Just because they put something in there, doesn't make it a correct interpretation of the statute.

When I sent my claim to Monarch, in the covering letter I stated:

It is important to note that your guidance (accompanying your claim form) on Regulation 261/2004 at point 2) is not correct. Specifically Article 7 only allows for a 50% reduction in compensation when passengers on flights exceeding 3500km are re-routed and delayed between 3-4 hours:

[FONT=&quot]Extract from Regulation 261/2004:
etc...
[/FONT][FONT=&quot]
Using the great circle route method to determine distance, our flight was neither in category c) nor were we re-routed to our final destination. [/FONT]

And therefore that I was claiming the full compensation. Cheeky bunch - their "guidance" is a right try on.

blondmark

Vauban wrote: »

The other thing I find odd about Monarch's defence is when they say:



Paras 23 and 24 of the Wallentin judgement say:



I don't disagree that cracks can happen at any time, which is why it is surprising that Monarch did not have the facilities at Gatwick to deal with this issue. Indeed, the fact that windscreens are, as part of the experience of flying at high altitude, "subject to extreme changes in termperature and altitude", means that exposure to such pressures - and the possibility of cracks - is "inherent in the normal exercise of the activity of the air carrier", and therefore by legal definition not covered by the concept of extraordinary circumstances.

This is surely the crux of the matter, isn't it? What have I misunderstood? How can anyone interpret this any other way?

Well that's certainly the crux of the issue where any airline raises C-549/07 Wallentin-Hermann v Alitalia as if this authority offers them some sort of protection against a 261/2004 claim.

In this particular case, of course, it's of no consequence because whether or not the court accepts that a previous flight was affected by Extraordinary Circumstances, that is neither here nor there. Monarch's defence in this claim will fail because they are not entitled to cite Extraordinary Circumstances as a knock-on effect of a previous flight (C-22/11 Finnair Oyj v Timy Lassooy).

Vauban

blondmark wrote: »

Monarch's defence in this claim will fail because they are not entitled to cite Extraordinary Circumstances as a knock-on effect of a previous flight (C-22/11 Finnair Oyj v Timy Lassooy).

To be honest with you, Blondmark, I don't actually think this is right. The Finnair case deals with a different principle - it doesn't strictly say that knock-ons aren't allowed. Or if you can find the part that does, I'll buy you a pint!:D