Flight delay and cancellation compensation, Thomas Cook ONLY

P_Doff

Vauban wrote: »

This is, in my view (and I am not a lawyer) a double-grey area. First on whether a bird strike counts as extraordinary: they are fairly common in the industry (see the AV Herald website for proof of that), and therefore inherent in the business of flying. Under a strict reading of the Wallentin interpretation, not therefore extraordinary. But one can easily imagine a judge taking the view that a bird strike is not within an airlines control and therefore deeming it extraordinary. So the question is how well the airline responds to the strike, and whether it uses "all of its resources" to get passengers on their way (the so-called Wallentin Third Question).

The second grey area is about knock ons. Some people here say that knock ons cannot be considered extraordinary. Nowhere in the regulation does it explicitly say that. In fact it talks about how extraordinary circumstances may impact upon "a particular aircraft on a particular day", which does allow the possibility - in my view - of an extraordinary circumstance with one flight carrying on to the rest of the schedule.

However, in practice knock-ons should be difficult to justify because of the requirement of airlines to do everything posible to prevent subsequent delay, - "all of its resources short of intolerable sacrifices". If they are made aware of a problem with a flight, they need immediately to work to prevent delays for those who might be affected down the chain. And the longer away the original incident occurs from your own delay, the harder it is for the airline to show it met this second test of Wallentin.

So in your case I would try to find out when the original bird strike occurred. But the airlines are not great about sharing this information, and - if you can't find it from AV Herald or PPRUNE - you will need to start legal action to find out.

Your point is not lost on me. However, I argued in court, successfully I think since I won, that if it is "inherent in the normal activity", it matters not if it is beyond the airlines control. That test only kicks in if it is deemed not to be inherent. The most important word is the "and" between "air carrier concerned ... are beyond its actual control".
"cancellation 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."
I hasten to add I am no authority but that is my take on it.

Vauban

P_Doff wrote: »

Your point is not lost on me. However, I argued in court, successfully I think since I won, that if it is "inherent in the normal activity", it matters not if it is beyond the airlines control. That test only kicks in if it is deemed not to be inherent. The most important word is the "and" between "air carrier concerned ... are beyond its actual control".
"cancellation 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."
I hasten to add I am no authority but that is my take on it.

Yes: I agree completely. The extraordinary circumstances defence has two test - inheritance and control. And then there is a second limb test, if ECs do apply, about the response to the delay ("all it's resources, etc").

My point is that - in a court - a bird strike will have the look of a random act more sore than a technical failure. So whilst I do not think it is an EC (as it's inherent), others might conclude differently. (I think I recall the aviation lawyer on the BBC Watchdog programme arguing bird strikes were ECs, but knock ons were not: which shows, IMHO, there's no settled view.)

But I absolutely share your reading of the law.

P_Doff

Vauban wrote: »

Yes: I agree completely. The extraordinary circumstances defence has two test - inheritance and control. And then there is a second limb test, if ECs do apply, about the response to the delay ("all it's resources, etc").

My point is that - in a court - a bird strike will have the look of a random act more sore than a technical failure. So whilst I do not think it is an EC (as it's inherent), others might conclude differently. (I think I recall the aviation lawyer on the BBC Watchdog programme arguing bird strikes were ECs, but knock ons were not: which shows, IMHO, there's no settled view.)

But I absolutely share your reading of the law.

Thanks Vauban. It is really a matter of convincing the judge on the day. In my own case it was a random technical fault. Nevertheless, so far as bird strikes are concerned, they must be inherent due to the sheer number of incidents.
Whilst Wallentin says "The frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded.", I suspect the frequency of bird strikes would show that it is inherent, and not really out of the ordinary.

icy75

Vauban wrote: »

It seems to me that as you have already issued them a notice before action there is no requirement or value in sending a second one. Indeed it will only reinforce the airline's assumption that you are not serious about taking them to court. If you think your claim is valid, stop dancing to their tune and call your own beat instead!

Thanks, that was my thought also, just wanted to make sure

icy75

Further to this, have just this morning received an email regarding the outbound flight, I wonder if it is a coincidence that I posted this about 2 hours previous to getting the email hmmmm

anyway "having carried out a full investigation into the delay to your flight, a payment of compensation is applicable in line with Regulation 261/2004. I have taken the liberty of enclosing a discount voucher to the value of £1062 which equates to a payment of £531 per person. This voucher can be used against the cost of a future holiday with us (like that's ever going to happen!)

I will pursue for details of the so called "extraordinary" circumstances surrounding the inbound flight that they dont seem to want to tell me about, now do I accept the sum as part payment as long as they pay cheque as there is no way we will ever fly with them again, or should I take the whole lot to SCC (although if I only claiming for one flight then the court fees could be lower)

Reading through this thread it seems a common response to deny one flight and accept the other, probably in the hope that we will go away satisfied with something.

LA_Wedding_Cars wrote: »

Hi

We went to Cuba (Jardines del Rey) on 29th May 2008 and returned on the 12th June 2008.

On the outbound flight we were delayed by 5 Hours 4 Minutes
The inbound flight was delayed by 5 Hours 35 Minutes.

I wrote to TC on the 1st of May and received a reply on the 10th stating they deal with all complaints in order blah blah blah.

On the 16th July I had had enough of no contact so sent them a lba as they had failed to respond satisfactory , on 18 July I received the standard get stuffed letter liking their aircraft to cars and breakdowns despite having service history or MOT - Seriously !!!!!!, the 2 are in no way comparable.

In line with regulation 261/2004 a payment of compensation would not be considered applicable in this case.

They say it was a technical nature and the delays were extraordinary, no mention of the cause of the "technical delay"

At the foot of the email it simply says this is with regards to the inbound flight.

We were told that there had been lots of delays with their flights preceeding by a member of staff, unfortunatly we have no proof of this.

On the outbound flight we were given a letter along with a £5 meal voucher (what the hell is that supposed to buy airside) For the return journey we were not given any vouchers at all.

The letter we were given for the outbound flight states "The plane operating your flight is currently running approximately 4 Hours and 30 minutes late due to the late arrival of the aircraft from its previous sector"

I am currently deciding if I should send them an amended lba due to their latest response informing them that they have only bothered to reply about the inbound, and asking for proof of the "extraordinary" nature of the technical fault, or should I go straight to SCC

Was anyone else here on these flights?

romanby1

LA_Wedding_Cars wrote: »

I will pursue for details of the so called "extraordinary" circumstances surrounding the inbound flight that they dont seem to want to tell me about, now do I accept the sum as part payment as long as they pay cheque as there is no way we will ever fly with them again, or should I take the whole lot to SCC (although if I only claiming for one flight then the court fees could be lower)

Reading through this thread it seems a common response to deny one flight and accept the other, probably in the hope that we will go away satisfied with something.

You do not have to accept a voucher. Reject it if you want cash, hold on to the voucher until the cash is in the bank.
As regards the inbound flight I suggest you write or email keeping a copy to say you will accept the sum offered (dependent on your decision on the above re voucher) as part payment. If they reject your claim state you will issue a claim.

snowey2

hi have anyone got the address for thomas cook, i have sent two letters but have not had a reply, i have also sent an email to an address cant someone please help me thanks:

Vauban

snowey2 wrote: »

Cant someone please help me thanks:

First help yourself, by reading the FAQs - which list the address. Do you think TC might have received the letters but are ignoring you?

mikeyorkie10

Sorry, I'm new to this, just starting down the path. Whats an NBA? and where did you manage to get an email address, I'm still using letters!

barry_mac

Centipede100 wrote: »

I am starting this thread for those claiming flight delay or cancellation compensation from Thomas Cook.

Any posts regarding any other airline in this thread will be ignored (at least by me).

hi I have just come back from turkey.flight tcx1538 Gatwick to dalaman 14 july 2013 we was delayed for over 3 hrs, the letter we got says due to unavoidable operational circumstances your flight is running approx. 3/50 mins late. what is unavoidable circumstances can I make a cliam. thanks becky