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

433Barbara

Thanks again Vauban and suelees1,

Once I know I'm right or have a fair chance........ I tend to be like a 'dog with a bone' and will pursue..... regardless of time/effort etc.

thanks Sue for the lead to threads etc.

If flight crew are over/out of hours etc I understand that airlines will use this as 'exc circ' clause etc but I (only my opinion) ... would have thought that if there was a door sensor fault and it wasn't quickly repaired then surely this would have a knock on effect for the crew and therefore the original cause of the flight delay would kick in???? Just guessing

JPears

suelees1 wrote: »

Thought you might be interested in this info about payouts for Monarch flights

http://www.euclaim.co.uk/press/373/Monarch-pays-21000-to-passengers-represented-by-EUclaim


http://www.euclaim.co.uk/UserFiles/Monarch_airlines_21000_payout_to_Eu_Claim_clients.pdf

Useful and encouraging, but I would take the claims/hype with a pinch of salt.

suelees1

Yes I do realise that JPears, it's par for the course where profits are concerned.

They do have a Facebook page with some informative bits. The more info/advice people can get for nowt the better all round. I've just put a question on there and am waiting to see what they have to say when the office opens tomorrow.

https://www.facebook.com/EUclaimcom?fref=ts

friendofbillw2

Here is Monarch's defence to my claim verbatim.

Comments and observations of those present most welcome!


IN THE NORTHAMPTON COUNTY COURT

CLAIM NO: 1AB23456

XXXX XXXXX Claimant

And

MONARCH AIRLINES Ltd Defendant

DEFENCE

1. The Defendant was at all material times acting in the capacity of an airline carrier for the purpose of these proceedings.

2. The Claimant is put to strict proof as to whether he was actually on the said flight.

3. Subject to paragraph 2 of this Defence, the Defendant admits that the Claimant’s flight from Gatwick to Arrecife was delayed.

4. The Defendant submits that it is not liable to the Claimant as alleged or at all. The Defendant intends to rely upon the defence of extraordinary circumstances as provided under EU Regulation 261/2004.

5. The Defendant submits that the aircraft scheduled to operate the Claimant’s flight (G-OZBG) developed a stiff rudder.The aircraft was having a 1A Check (a normal check in line with the maintenance program) on the tarmac after the last sector of flying for the day on the 19th when at approximately 0330am on the 20th during an ‘operational check of rudder servo-controls with individual hydraulic systems’ it was found that the rudder was stiff. Such checks form part of the 1A Check.

6. The rudder controls the direction of the aircraft and is essential for flying. As such the aircraft was declared unserviceable and required immediate engineering work on the rudder to locate and rectify the fault. The fault was eventually traced to the Artificial Feel Unit which required replacement. The Artificial Feel Unit controls the hydraulic pressure delivered to the rudder. Its function is to slow down the movement of the rudder in air stream. The potential consequences of the rudder jamming would be that the aircraft would roll or flip inflight, and therefore posed a safety risk and required immediate rectification.

7. In an attempt to minimise the Claimant’s delay,the Defendant offloaded the Claimant’s flight onto the first available aircraft in the Defendant’s fleet (GOZBL). The Defendant is a smaller airline with 33 aircraft in its fleet, as such it does not have spare aircraft that it can utilise when one is take out of service unexpectedly. The Defendant submits that this option caused the least disruption and delay to the Claimant’s flight in comparison to offloading onto an alternative carrier.

8. The Defendant submits that it has a full defence to the Claimant’s claim under Article 5 (3) of Regulation 261/2004 which states‘an operating carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation (delay) is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

9. The Defendant intends to rely upon the decision in Wallentin (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”. Moreover the court held ‘the resolution of a technical problem caused by the failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity’. The Defendant submits that the fault was not as a result of failure to maintain the aircraft. On the contrary flight control system ‘range of movement’ checks are carried out by flight deck crew prior to each take-off. This would highlight any abnormalities if any were to be present. Also the Airbus Maintenance Planning Document (MPD), Task reference272400-01-1 requires an ‘operational check of rudder servo-controls with individual hydraulic systems’ to be carried out every 750 flight hours. Additionally the area in which the Artificial Feel Unit is installed is inspected for hydraulic leaks in accordance with MPD reference 272651-01-1 every 600 flight hours so any external physical abnormalities would be seen.

10. The defendant submits that the replacement of the Artificial Feel Unit was in fact beyond its control. The Defendant submits that due to the fact the aircraft was able to fly its sectors on the 19th without any issue that the only inference to draw is that this fault was clearly unpredictable. This is the 2nd recorded incident of this part being changed for this aircraft type within the fleet.

11. Furthermore the Defendant submits that it satisfies the second limb of the test of Wallentin. Namely ‘even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would not have been able… to prevent the extraordinary circumstances with which it was confronted’ from leading to the delay. The Defendant submits that by offloading the Claimants flight onto its first available aircraft within its fleet, it took all reasonable measures within its power to avoid and at best minimise the delay to the Claimant’s flight.

12. The Defendant submits that it is not liable to the Claimant as alleged or at all.

13. The Defendant submits that it is not liable to Claimant for the sum pleaded or any sum at all.

14. The Defendant admits that the Claimant has an inherent right to interest subject to liability being established.

The Defendant believes that the facts stated in this defence are true to the best of its belief and knowledge.

XXXX XXXXX

[signature]

Group Lawyer

Monarch Airlines Ltd

13 May 2013

433Barbara

Once again thanks Sue, I'm thankful for any/all information I receive as it helps me make an informed choice.

friendofbillw2.

Am I right in thinking this is the response you got from taking Monarch to court and if so what was the outcome please?

friendofbillw2

111KAB wrote: »

Monarch have accepted that they need a stand-by plane this year and have indicated that once their current problems are resolved (ie accident/repainting/new seating) they will have one UK based 'spare' Airbus. Monarch are not buying planes any longer and recently did a sale and leaseback on 3 of their fleet and the only planes not leased are those which are to old to sell onto a leasing company. With the Birmingham > Prestwick accident, the Cyprus planes and the re-seat programme Monarch have sub chartered (their words) or wet leased planes this past weekend from the likes of Pullmantur, Titan, Air Italy, NEOS and Niki Air. The age/type of plane/location of Monarch planes corresponds directly to reliability/delays.

111KAB, do you have any 'official' sources (website, press releases, industry articles?) for Monarch acknowledging they need a stand-by plane this year, or that they have wet-leased recently?

I think it would be very helpful in demonstrating to the court that this was a shortcoming in the past that they have only recently plugged now they are wide open to compensation claims.

friendofbillw2

433Barbara wrote: »

friendofbillw2.
Am I right in thinking this is the response you got from taking Monarch to court and if so what was the outcome please?

This is Monarch's defence to my MoneyClaimOnline claim.

As you can see from the date at the bottom I only received it recently so there has been no 'outcome' as such yet.

I have sent back the allocation questionnaire and will be compiling my court bundle while I wait for a hearing date.

Vauban

friendofbillw2 wrote: »

Here is Monarch's defence to my claim verbatim.

Comments and observations of those present most welcome!

I suggest that, in your own witness statement, reply with something along the following lines, perhaps filling in the detail to customise to your own circumstances.


1. The Claimant submits that the Defendant isunable to rely on the decision in Wallentin (C-549/07 Wallentin-Hermann v. Alitalia) toprovide a defence of “extraordinary circumstances”. Regulation EC No 261/2004 stipulates that:

Obligations on operating aircarriers should be limited or excluded in cases where an event has been causedby extraordinary circumstances which could not have been avoided even if allreasonable measures had been taken. Such circumstances may, in particular,occur in cases of political instability, meteorological conditions incompatiblewith the operation of the flight concerned, security risks, unexpected flightsafety shortcomings and strikes that affect the operation of an operating aircarrier.

2. The Wallentin judgement, however, makes an importantclarification in paragraph 23:

Although the Community legislature included in thatlist ‘unexpected flight safety shortcomings’ and although a technical problemin an aircraft may be amongst such shortcomings, the fact remains that thecircumstances surrounding such an event can be characterised as ‘extraordinary’within the meaning of Article 5(3) of Regulation No 261/2004 only if theyrelate to an event which, like those listed in recital 14 in the preamble tothat regulation, is not inherent in the normal exercise of the activity of theair carrier concerned and is beyond the actual control of that carrier onaccount of its nature or origin.

3. The Wallentin judgement gives illustrative examples of thekinds of technical failures that might be considered as “extraordinarycircumstances” at paragraph 26:


However,it cannot be ruled out that technical problems are covered by those exceptionalcircumstances to the extent that they stem from events which are not inherentin the normal exercise of the activity of the air carrier concerned and arebeyond its actual control. That would be the case, for example, in thesituation where it was revealed by the manufacturer of the aircraft comprisingthe fleet of the air carrier concerned, or by a competent authority, that thoseaircraft, although already in service, are affected by a hidden manufacturingdefect which impinges on flight safety. The same would hold for damage toaircraft caused by acts of sabotage or terrorism.


4. TheClaimant submits that the technical failures described by the Defendant, whilstnot necessarily predictable in each instance, do not fall into this category of“extraordinary circumstance”. Thepossibility of such failures is inherent in the normal exercise of an airline’sactivity. Indeed, this is why theaircraft are subject to such regular checks. Thisassessment is consistent with the conclusion in paragraph 24 of Wallentin that:

In the light of thespecific conditions in which carriage by air takes place and the degree oftechnological sophistication of aircraft, it must be stated that air carriersare confronted as a matter of course in the exercise of their activity withvarious technical problems to which the operation of those aircraft inevitablygives rise. ... The resolution of a technical problem caused by failure to maintainan aircraft must therefore be regarded as inherent in the normal exercise of anair carrier’s activity.


5. If the Court does not accept that these technicalfailures do not constitute “extraordinary circumstances”, there is a furthertest for the Defendant to meet to absolve them of the obligation to paycompensation. As paragraph 39 of Wallentin explains:

It must be observed that theCommunity legislature intended to confer exemption from the obligation to paycompensation to passengers in the event of cancellation of flights not inrespect of all extraordinary circumstances, but only in respect of those whichcould not have been avoided even if all reasonable measures had been taken.


6. The Defendant contends that Monarch Airlines“took all reasonable measures within its power and resources to try and avoidand at best minimise the said delay”. Wallentin is clear in paragraph 43 that:

the fact that an aircarrier has complied with the minimum rules on maintenance of an aircraftcannot in itself suffice to establish that that carrier has taken ‘allreasonable measures’ within the meaning of Article 5(3) of Regulation No261/2004 and, therefore, to relieve that carrier of its obligation to paycompensation provided for by Articles 5(1)(c) and 7(1) of that regulation.


7. The Defendant must show that it had taken reasonable measures not justto prevent the extraordinary circumstances, but to ensure that thosecircumstances do not significantly impact on the punctuality of theflight. The requirement that theregulation places upon the airline in these circumstances is significant. As Wallentinnotes in paragraph 20:

it is clear that,whilst Article 5(1)(c) of Regulation No 261/2004 lays down the principle thatpassengers have the right to compensation if their flight is cancelled, Article5(3), which determines the circumstances in which the operating air carrier isnot obliged to pay that compensation, must be regarded as derogating from thatprinciple. Article 5(3) must therefore be interpreted strictly.

8. Consequently, the European Court hasprescribed clear and onerous obligations on an airline to prevent seriousdelays arising, even from extraordinary circumstances. As paragraph 41 of Wallentin notes:

That party mustestablish that, even if it had deployed all its resources in terms of staff orequipment and the financial means at its disposal, it would clearly not havebeen able – unless it had made intolerable sacrifices in the light of thecapacities of its undertaking at the relevant time – to prevent theextraordinary circumstances with which it was confronted from leading to thecancellation [or, post-Sturgeon, delay] ofthe flight.

9. The Claimant therefore puts theDefendant to strict proof to demonstrate exactly what measures – “all of itsresources” short of “intolerable sacrifices” – Monarch Airlines took to preventa delay to flight ZBxxx once the aircraft scheduled to operate the flight wasdiscovered to have technical difficulties. In particular, what efforts the Defendant made to provide a spareaircraft or crew, to lease an aircraft from another provider, or to book theClaimant and his family alternative flights, including from other airlines,servicing similar routes that day. Anyof these resolutions would have been consistent with the Defendant’s obligationto deploy “all its resources in terms of staff or equipment and the financialmeans at its disposal”.

10. The Claimant contends that, absentcompelling evidence from the Defendant that they attempt each and all of thesereasonable actions, the Defendant is liable for the payment of compensation, asstipulated under the relevant regulation and precedent case law.

111KAB

friendofbillw2 wrote: »

111KAB, do you have any 'official' sources (website, press releases, industry articles?) for Monarch acknowledging they need a stand-by plane this year, or that they have wet-leased recently?

I think it would be very helpful in demonstrating to the court that this was a shortcoming in the past that they have only recently plugged now they are wide open to compensation claims.

As far as I am aware to research the wet leased (now referred to by Monarch as sub charter!!) use would take more patience than it is worth as in May alone they have wet leased from Pullmantur, Titan, Air Italy, NEOS and Niki but to obtain accurate information you need to know the plane registrations etc etc. In addition wet leasing is acceptable insofar as Monarch are completing their contract with passengers by flying them from A to B.
I believe the wet leasing has come about for a number of reasons, the accident to their Airbus when landing at Shannon, their seat replacement programme, late delivery of some extra planes etc however last year it was due, in the main, to the BMiBaby takeover so their 2013 stand by is not as a result of one factor alone.
The Monarch problem for people using this website is obviously delays and as such http://www.flightontime.info/ website is probably the source for the best evidence regarding the length of delays ie for example 3% of all flights delayed over 3 hours however if going to Court it is the cause of the delay you and Monarch should be concentrating on and the crux here is that a technical problem does not = an extraordinary circumstance.

statictom

I was pleased to read the response from VAUBAN to FriendofbillW2 and the excellent response to Monarch re Wallentin.

I hit a snag with Monarch in so much as I do not possess flight tickets from Oct 2010. My flight from Almeria in Spain was delayed for over 7 hrs when a fuse went on the PA system.

I have written to Monarch, sent their claim forms which I downloaded myself and completed, forwarded copies of our passports and had no response at all. All letters etc were sent recorded delivery and signed for. I have now sent a NBA letter, and again no response.
I rang customer services and they informed me that they require me to prove I was on the plane. I explained I have bank statements showing I paid Monarch for tickets, even extra payments for pre-booked seats and meals, etc. But they insist I need proof of being on board. I feel like asking them to prove I was not on board.
I asked if I can pay to be provided with an edited list of passengers to help prove I was on the flights - they replied NO - passenger confidentiality.

Any suggestions.