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

Vauban

urban469 wrote: »

Posts like this are what make this forum so valuable Centipede100, Mark2Spark and Vauban. So thanks.

Mark2Spark, when you say are you referring to the Regulation itself here?

Also, Vauban, when we talk about:


Recital 14 (in the preamble to the Regulation) does actually mention "unexpected flight safety shortcomings," as a potential EC, which is exactly the point Monarch will be relying on.

You are absolutely right that Monarch - and others - are using this to justify non-payment. But Wallentin again is invaluable: in fact, I think it offers a slam dunk:

"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."

Mark2spark

Urban. The ECJ Grand Chamber ruling is Sturgeon.
The Wallentin Ruling is 4th Chamber. But Sturgeon confirms it even though they are not joined cases.
Therefore there is no appeal possible.

"unexpected flight safety shortcomings", should be taken to mean that a manufacturer, say Boeing, announcing that all 757's are grounded until a hinge pin fitted between wing and flap is replaced, due to a possible manufacturing defect, would be an EC.

An 'oxygen mask in the cockpit failure', (for example), that is detected mid flight, whilst certainly a flight safety shortcoming, is a tech issue, that has not *stemmed* from an EC, and any emergency landing and delay is not EC. The point of the regulation is to get the airlines to have spares at all major airports so that they can get on their way quickly, and not inconvenience passengers.

In fairness towards the airlines, 3 hours can be cutting it a bit fine to fix some of these sudden failures, hence the nod towards extending the delay threshold up to 5 hours from the proposed amendments.

Why on earth would they be extending this threshold, from 3 hours to 5 hours, if tech issues *were* EC's, as per Monarch's claims?

Chris1447

Has anyone got a date yet for their small claims court hearing. When is it and how long did you have to wait after applying. If someone has had their case heard perhaps they could post the Courts decision. Both the above would be very helpful information.

Chris1447

What is the current waiting time to get a full response from the CAA and has anyone had one yeton either the 50% reduction for delays between 3 and 4 hours or about extraordinary circumstances. I fully understand what most contributors say about the Court cases but it would be useful to know about any CAA responses. I am still awaiting for a date for my small claims court perhaps my application has gone astray.

urban469

Vauban wrote: »

You are absolutely right that Monarch - and others - are using this to justify non-payment. But Wallentin again is invaluable: in fact, I think it offers a slam dunk:

"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."

Thanks Vauban. I am less convinced that it's a slam dunk, though. This is why...

I feel like we're relying on this line: "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."

But the whole case will turn on that. In my case, Monarch will inevitably say that the fuel leak that was discovered could not have been prevented by prior maintenance. In other words, it was out of their control. There was nothing they could have done that would have stopped that leak from occurring on the day it did. We're doing as much as we could – and going beyond what is expected of us, is what they'll say.

In that case, it will come down to my word against theirs. I feel like I need an expert witness, an aviation expert who can come into court and say, actually, these types of leaks can be prevented by a certain additional check that should be happening every 3rd day.

Mark2spark wrote: »

Urban. The ECJ Grand Chamber ruling is Sturgeon.
The Wallentin Ruling is 4th Chamber. But Sturgeon confirms it even though they are not joined cases.
Therefore there is no appeal possible.

"unexpected flight safety shortcomings", should be taken to mean that a manufacturer, say Boeing, announcing that all 757's are grounded until a hinge pin fitted between wing and flap is replaced, due to a possible manufacturing defect, would be an EC.

Thanks Mark. What do you mean by no appeal possible? For us, if we lose?

And thanks for clearing up the Grand Chamber and 4th Chamber. Basically, we are using Sturgeon to establish that the Regulation's protection extends to delays (as well as cancellations). And Wallentin establishes that tech problems are not ECs.

Mark2spark

I mean that the airlines can no longer appeal against regulation EU261/2004.

Mark2spark

urban469 wrote: »

And Wallentin establishes that tech problems are not ECs.

Tech problems, on their own, are not EC's.

But they can be if they stem from an event that is third party controlled, like ATC, weather, terrorism, etc.

And the fuel leak you describe above is a simple failure of a mechanical part. Read the bit in Wallentin that says about the degree of sophistication of aircraft, and that parts will routinely break down, and that this, is inherent in the normal day to day running of an airline.

Vauban

urban469 wrote: »

Thanks Vauban. I am less convinced that it's a slam dunk, though. This is why...

I feel like we're relying on this line: "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."

But the whole case will turn on that. In my case, Monarch will inevitably say that the fuel leak that was discovered could not have been prevented by prior maintenance. In other words, it was out of their control. There was nothing they could have done that would have stopped that leak from occurring on the day it did. We're doing as much as we could – and going beyond what is expected of us, is what they'll say.

In that case, it will come down to my word against theirs. I feel like I need an expert witness, an aviation expert who can come into court and say, actually, these types of leaks can be prevented by a certain additional check that should be happening every 3rd day.

This is a good exchange, and worth having. Let me explain why I think your concerns are unfounded.

Let us agree that Wallentin is explicit on this point: extraordinary circumstances only apply to technical failures if the failure 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."

Hence, a fleet-wide recall, or sabotage of the engine, would create technical failures which might be deemed extraordinary. But anything that breaks as a normal part of the activity of the airline is not.

Wallentin also sets up an important second test, which is what constitutes being "beyond the control of the airline". The so-called Third Question of the Wallentin judgement explains precisely what this means and - appositely - addresses directly your very point: whether performing adequate maintenance on the plane absolves the airline from paying compensation.

The extract is long, but it's important too. Most relates to what the airline needs to do once you have broken down (it needs to do everything short of "intolerable sacrifices" - which is a very high bar in my view). But para 43 is worth a particularly close read ...

The third question
38 By its third question, the referring court is essentially asking whether it must be considered that an air carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004 if it establishes that the minimum legal requirements with regard to maintenance work have been met on the aircraft the flight of which was cancelled and whether that evidence is sufficient to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation.

39 It must be observed that the Community legislature intended to confer exemption from the obligation to pay compensation to passengers in the event of cancellation of flights not in respect of all extraordinary circumstances, but only in respect of those which could not have been avoided even if all reasonable measures had been taken.

40 It follows that, since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish, in addition, that they could not on any view have been avoided by measures appropriate to the situation, that is to say by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned.

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.

42 It is for the referring court to ascertain whether, in the circumstances of the case in the main proceedings, the air carrier concerned took measures appropriate to the situation, that is to say measures which, at the time of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier.

43 In view of the foregoing, the answer to the third question referred must be that the fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation.

In other words, it doesn't matter whether prior maintenance could have spotted the technical defect or not. That's not what you need to prove. The obligation on the airline is to resolve the problem once it occurs so that you are not unduly delayed. And if the technical fault was in any case caused in the circumstances of the normal operation of the aircraft, then the fault doesn't count anyway.

Have I persuaded you yet?

More broadly, can I be presumptious enough to offer unsolicited advice to anyone thinking of taking their compensation claim seriously. Read 261/04; read Wallentin; and read Sturgeon. They're the most important documents you need in order to succeed.

Vauban

PS I am happy to accept chastisement for my use of the term "slam-dunk". Of course, it is right that the law is too capricious a beast to permit such a concept.

So let me simply say instead then, in my view, the judgements given in Wallentin, Sturgeon and Nelson collectively conspire to offer strong and compelling arguments to 95% of the people who frequent this forum.

I hope that revised formulation makes the grade for the Centipede Certified Mark of Approval.;)

urban469

Mark2spark wrote: »

Tech problems, on their own, are not EC's.

But they can be if they stem from an event that is third party controlled, like ATC, weather, terrorism, etc.

And the fuel leak you describe above is a simple failure of a mechanical part. Read the bit in Wallentin that says about the degree of sophistication of aircraft, and that parts will routinely break down, and that this, is inherent in the normal day to day running of an airline.

This was the exact error they described: "Initially the aircraft arrived from its previous rotation with compressor vane messages and after engineers assessed the aircraft it was discovered fuel was leaking from the hydro mechanical units. The aircraft was bought into the hangar for numerous engine runs and for rectification work to take place."

Centipede100 wrote: »

I think you ought to examine the Wallentin-Hermann and Sturgeon judgments in more detail, specifically the reasons the airlines gave for the cancellation and delay in those cases as these would seem to have some relevance to the discussion.

Wallentin-Hermann: http://curia.europa.eu/juris/celex.jsf?celex=62007CJ0549&lang1=en&type=NOT&ancre=

Sturgeon: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0402:EN:HTML

Reasons given for the cancellation in WH:

11 The cancellation of the Alitalia flight from Vienna resulted from a complex engine defect in the turbine which had been discovered the day before during a check. Alitalia had been informed of the defect during the night preceding that flight, at 1.00 a.m. The repair of the aircraft, which necessitated the dispatch of spare parts and engineers, was completed on 8 July 2005.

Reasons given for delays in Sturgeon (remember that the Sturgeon judgment involved 2 combined cases, the other being
Stefan Böck and Cornelia Lepuschitz v Air France):

15 Condor contended that the action as framed should be dismissed on the ground that the flight in question was delayed and not cancelled. Prior to the proceedings before the national court, Condor claimed that the flight had been delayed as the result of a hurricane in the Caribbean but during the proceedings it attributed the delay to technical faults on the plane and illness among the crew.

20 The Mexico City-Paris flight which Mr Böck and Ms Lepuschitz were due to take was scheduled to depart at 21.30 on 7 March 2005. When they came to check in, they were immediately informed, without the check-in taking place, that their flight was cancelled. The cancellation resulted from a change in the flight planning between Mexico City and Paris, which arose because of a technical breakdown on the aircraft due to fly from Paris to Mexico City and on account of the need to observe the rest period prescribed by law for the crew.

Whilst it is never sensible to describe possible outcomes of judgments as 'slam dunk' one can to determine whether a claim has a worthwhile chance of success by reference to both the operative judgments given in the relevant case law and also by reference to the detailed facts used by the ECJ as to why they reached the decisions they did.

The Sturgeon judgment does state however that "a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control".

Thanks for those. That's really useful. So, what you're saying is that I can refer to these cases as precedent. In other words: Wallentin established that a "complex engine defect" was not an EC. So by extension/comparison, my fuel leak would not be considered 'exceptional' in that light.

This paragraph (below) is key, as you suggest, because I can compare the scale/magnitude of what kind of tech problems are considered EC with the kind of tech problems my flight suffered.

Wallentin Hermann describes the inherent technical issues thus:

26 However, it cannot be ruled out 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 actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism.

If you are in some doubt of your ability to make your point in court, then you would do worse than to appoint a no win no fee company to do this for you.

Already gone down the MCOL route! I'm a good speaker, a persuasive arguer (cough!) and I am confident that I have a strong case. I just want to make it watertight before I present in court. And I think the discussion we're having will hopefully help a lot of people trying to battle through these cases in their own minds.

Now this is very, very good stuff...

Vauban wrote: »

This is a good exchange, and worth having. Let me explain why I think your concerns are unfounded.

Let us agree that Wallentin is explicit on this point: extraordinary circumstances only apply to technical failures if the failure 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."

Hence, a fleet-wide recall, or sabotage of the engine, would create technical failures which might be deemed extraordinary. But anything that breaks as a normal part of the activity of the airline is not.

Wallentin also sets up an important second test, which is what constitutes being "beyond the control of the airline". The so-called Third Question of the Wallentin judgement explains precisely what this means and - appositely - addresses directly your very point: whether performing adequate maintenance on the plane absolves the airline from paying compensation.

The extract is long, but it's important too. Most relates to what the airline needs to do once you have broken down (it needs to do everything short of "intolerable sacrifices" - which is a very high bar in my view). But para 43 is worth a particularly close read ...



In other words, it doesn't matter whether prior maintenance could have spotted the technical defect or not. That's not what you need to prove. The obligation on the airline is to resolve the problem once it occurs so that you are not unduly delayed. And if the technical fault was in any case caused in the circumstances of the normal operation of the aircraft, then the fault doesn't count anyway.

Have I persuaded you yet?

More broadly, can I be presumptious enough to offer unsolicited advice to anyone thinking of taking their compensation claim seriously. Read 261/04; read Wallentin; and read Sturgeon. They're the most important documents you need in order to succeed.

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?

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).