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

klint

Vauban wrote: »

Just google for "online pdf to word converter"

Thanks Vauban.

Here's the text of their 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, the Defendant admits that the Claimant’s flight was delayed.
4. The Defendant submits that it is not liable to the Claimant for flight ZB743 Malaga to London Gatwick. 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 due to operate the Claimant’s flight (Registration G-OZBE) was declared unserviceable due to technical issues. Namely it was discovered in Aircrew pre-departure flight control checks that the left rudder was stiff. Such checks are required to be carried out by the crew before every flight. For clarity the consequences of a stiff rudder are that it would affect flight operations and the nose wheel steering, it is essential for flying and control of the aircraft. Therefore the aircraft was declared unserviceable and unsafe to fly until rectified.
6. Following troubleshooting by the engineers, the aircraft required the artificial feel trim unit to be replaced to rectify the fault with the left rudder.
7. As a result the Claimant’s flight ZB743 was delayed. The Defendant submits that this is an extraordinary circumstance.
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 Wallentln-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’. On the contrary the rudder is used on each and every flight, therefore any prior warning of the fault would have been picked up and rectified before failure had that been the case. The Defendant submits the fault with the left rudder and the resulting delay were unpredictable and in fact beyond its control.
10. 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 the fault with the left rudder and resulting delay were unavoidable and that it took all reasonable measures within its power and resources to try and avoid and at best minimise the said delay.
11. The Defendant submits that it is not liable to the Claimant as alleged or at all.
12. The Defendant submits that it is not liable to Claimant for the sum pleaded or any sum at all.
13. 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.

(Signed)
Morgan Mulay
Group Lawyer

Most of these points are the same as earlier posters and have been sufficiently dealt with already. I would appreciate some discussion on just the following points.

• In paragraph 5 they say the fault was discovered during pre-departure flight control checks. These are normally performed just before engine start. In fact, we were told there was going to be a delay when we were in the queue to check in, about two hours before scheduled departure. So they had a full five hours to either fix it or get another aircraft and still be able to arrive within the three-hour delay limit. (In fact, possibly more, as I would imagine the pilots had probably discovered the fault with the rudder which also controls the nose wheel as they taxied to the stand after landing on the previous flight.) The problem is, how would I prove we were told of the delay during check-in? The indicator boards showed that the flight was going to be delayed, but is there a historical database of indicator boards? (I know about flightstats but that doesn't give this information.)
• I think paragraph 9 doesn't make sense. What do you make of it?
• Paragraph 10 is unsubstantiated, correct?
• It's interesting that they didn't disagree with the rate of interest (I asked for 8%) when they previously did with other claimants.

Cheers
klint

111KAB

klint wrote: »

In paragraph 5 they say the fault was discovered during pre-departure flight control checks. These are normally performed just before engine start. In fact, we were told there was going to be a delay when we were in the queue to check in, about two hours before scheduled departure. So they had a full five hours to either fix it or get another aircraft and still be able to arrive within the three-hour delay limit. (In fact, possibly more, as I would imagine the pilots had probably discovered the fault with the rudder which also controls the nose wheel as they taxied to the stand after landing on the previous flight.) The problem is, how would I prove we were told of the delay during check-in? The indicator boards showed that the flight was going to be delayed, but is there a historical database of indicator boards? (I know about flightstats but that doesn't give this information.)

Ask Monarch to produce a statement from the FO to say the problem was discovered just prior to departure. Are you aware of any other pax on the plane that were given the same information? ie at check-in - get a witness statement from them. Stick to the truth as you have outlined and advise that you were informed at check in. Remember a technical fault is not an extraordinary circumstance. Ask Monarch to table their Event Printout (Technical System/Component Failure) for this aircraft. This should have the time when the fault was first reported.

433Barbara

111KAB wrote: »

Ask Monarch to produce a statement from the FO to say the problem was discovered just prior to departure. Are you aware of any other pax on the plane that were given the same information? ie at check-in - get a witness statement from them. Stick to the truth as you have outlined and advise that you were informed at check in. Remember a technical fault is not an extraordinary circumstance. Ask Monarch to table their Event Printout (Technical System/Component Failure) for this aircraft. This should have the time when the fault was first reported.

Hi all, would this be good advice for all of us to gather this information prior to court?

I appreciate that all of this information may not be needed but in light of the fact that people are not getting to see Monarch's defence at due date and that they are handed sometimes at the 11th hour would it be worthwhile?

LOVE THIS SITE :T

Mark2spark

Klint,
If the delay was on the board at check in, then *your* plane hadn't even arrived? So the fault couldn't have been discovered during pre flight checks if it was already delayed.
Monarch operate a one hour turn around time to my knowledge. Ask them to disclose their regular turn around time. This also then gives you the angle required for any Eglitis (sp?) reference where it's deemed that the Airlines must allow a time within their schedule to fix tech issues that arise unpredictably, - or alternatively have the time at hand to organise alternative means to cut out the delay.

bubbles4141

Palma to Gatwick. Does anyone know if anyone else has claimed for this flight, it was about a 7 hour delay. Faulty parking break apparently, thay had to fly in a new aircraft and crew, as the oringinal crew were not trained for the new aircraft.

23/10/2012, Flight number: ZB 227

The CAA has found in our favour, but Monach has refused the claim.

We have now applied to the small claims court and are awaiting a date and location. If the CAA have found in our favour why don't they just settle?

Vauban

bubbles4141 wrote: »

Palma to Gatwick. Does anyone know if anyone else has claimed for this flight, it was about a 7 hour delay. Faulty parking break apparently, thay had to fly in a new aircraft and crew, as the oringinal crew were not trained for the new aircraft.

23/10/2012, Flight number: ZB 227

The CAA has found in our favour, but Monach has refused the claim.

We have now applied to the small claims court and are awaiting a date and location. If the CAA have found in our favour why don't they just settle?

Do you have a letter or email from the CAA? What exactly did they say?

friendofbillw2

klint wrote: »

9. The Defendant intends to rely upon the decision in Wallentin (C-549/07 Wallentln-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’. On the contrary the rudder is used on each and every flight, therefore any prior warning of the fault would have been picked up and rectified before failure had that been the case. The Defendant submits the fault with the left rudder and the resulting delay were unpredictable and in fact beyond its control.

This is fascinating, thanks klint for posting.Here is the paragraph 9 from my defence :

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.'

If you compare those two, they have taken out the flawed logic bit - 'The Defendant submits that the fault was not as a result of failure to maintain the aircraft', and just waded straight into 'on the contrary...' so this whole paragraph in klint's defence makes no sense at all!

Monarch's lawyers are now getting so careless that they can't even re-draft paragraphs that make sense...

Get them in front of a judge and expose them, people. That is the only way these idiots will learn.

klint

friendofbillw2 wrote: »

Monarch's lawyers are now getting so careless that they can't even re-draft paragraphs that make sense...

Thanks, very interesting comparison. It's obvious Monarch are just cutting and pasting as these two paragraphs contain the same inconsistency in the use of quotation marks.

bazaar_2

Hi all, would this be good advice for all of us to gather this information prior to court?
Yes, you shouldnt wait for the airline to dictate things. take control of YOUR case,
I appreciate that all of this information may not be needed but in light of the fact that people are not getting to see Monarch's defence at due date and that they are handed sometimes at the 11th hour would it be worthwhile?
YES, Thats what the CPR are there for, you use them to ask the pertinent questions before they try their silly games of late filing.. Take a look at CPR31. if youve got a court date and CPR 18

friendofbillw2

9. The Defendant intends to rely upon the decision in Wallentin (C-549/07 Wallentln-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’. On the contrary the rudder is used on each and every flight, therefore any prior warning of the fault would have been picked up and rectified before failure had that been the case. The Defendant submits the fault with the left rudder and the resulting delay were unpredictable and in fact beyond its control.

Just read and think about this for a second.

"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..."

(my emphases, but a direct quote from Wallentin para 26 used in Monarch's defence)

and

"the rudder is used on each and every flight..."

So how can use of the rudder and any subsequent technical failure of the rudder possibly be anything other than "inherent in the normal exercise of the activity of the air carrier concerned"?

That is their entire 'extraordinary / exceptional circumstances' argument done away with, surely?