Flight Compensation Claim. what constitutes extraordinary circumstances

JULIE_SLAMON

I am trying to find a flight number for a Monarch flight from Tenerife (TFS) to Manchester that should have flown on 2nd December 2008 but was delayed overnight. All passengers were sent to hotel in Playa Paraiso overnight. Can anyone please help with any information.

DavePollard

Monarch says my claim was dismissed by extraordinary circumstances re RUDDER PROBLEMS. Reading through the various forums it would appear a number of flights have had the same problem. How many times in a year do rudder problems have to occur not to be extraordinary circumstances. Isjust Monarch that are claiming Rudder Problems are extraordinary circumstances or are other airlines doing the same!!

Vauban

DavePollard wrote: »

How many times in a year do rudder problems have to occur not to be extraordinary circumstances?

I'm afraid that, in a legal sense, your question is meaningless (if that doesn't sound too rude!). Read para 37 of the Wallentin judgement to see why.

JPears

Vauban wrote: »

I'm afraid that, in a legal sense, your question is meaningless (if that doesn't sound too rude!). Read para 37 of the Wallentin judgement to see why.

Whilst that is fault frequency on its own, according to Wallentin judgement, is not a reason for excluding EC, in combination with other aspect I suspect any reasonable court would take the view that repeated failure of the same component if it hasn't been maintained/service corrctly etc may count.
I am sure most people would find frequent rudder operation failure somewhat disconcerting.

TomLikesSausages

As posted on a different forum my flight delay compensation claim for a flight from Gatwick to Fuerteventura in 2011 was also rejected by Monarch due to Rudder Problems. A spare part had to flown in from France.

Vauban

JPears wrote: »

Whilst that is fault frequency on its own, according to Wallentin judgement, is not a reason for excluding EC, in combination with other aspect I suspect any reasonable court would take the view that repeated failure of the same component if it hasn't been maintained/service corrctly etc may count.
I am sure most people would find frequent rudder operation failure somewhat disconcerting.

JP: this isn't a criticism of you directly, but folk need to stop making up the law as you think it should be. I am not a lawyer, but as I said before, the frequency of a technical defect has no bearing on its admissibility as an extraordinary circumstances. Please accept this as law.

You have also introduced a second principle in your post, that if a part hasn't been serviced correctly then that cant be extraordinary either. Whilst you're right (because that would be in the airlines control) the implication of your principle would be that, if it was serviced properly, it is an EC. This is not true. Airlines try to argue this point: they say that they have maintained the aircraft according to procedures, and therefore if it breaks it is out of their control and unpredictable. But THESE ARE NOT THE TESTS THE AIRLINES NEED TO MEET.

Forgive the emphasis but any claimant taking this seriously needs to read the key judgments, which form European case law. And those whose claims rest on a technical failure which the airline claims is an extraordinary circumstance must read Wallentin and learn it off by heart. Don't make stuff up, or allow the airlines to make up their own tests of what constitutes extraordinary circumstances. Use the test that the law actually provides.

So (and apologies if I sound like I am ranting, but I think this is really important, and hopefully helpful to folk), Wallentin tells you what is NOT a test:

ON FREQUENCY:

"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."

ON MAINTENANCE:

"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."

Wallentin is invaluable because it sets out precisely two tests to see if a technical failure could be extraordinary, and then offers a third test that the airline must also meet. This ought to be at the heart of anyone's legal claim who's fighting this point with an airline, in my (non legal) opinion.

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.

So that is your first two tests: the failure mustn't be inherent in normal exercise of activity, AND then it must be out of the control of the airline. If a spare part breaks through the normal activity of flying - say an engine falters or a window cracks or a rudder jams - this fails the first test. Period. The kinds of technical failures that might be considered extraordinary, Wallentin says, are things like tech problems caused by sabotage or terrorism or a recall of a fleet of planes due to a hidden manufacturing defect (eg Dreamliner).

Some airlines will argue that because they have performed appropriate maintenance, the failure was out of their control. This argument is not sound. Wallentin knocks it down (and this is the second test):

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.

25. Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004.

Note the killer sentence in here: "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.". If something goes tech, fixing it is inherent in the airlines activity, and an inability to do so does not make it extraordinary.

There is one further test that the airlines need to meet. And it us (helpfully for any claimant) pretty onerous. Even if one accepts that the tech failure is extraordinary, the onus is on the airline to show that they did everything reasonable to prevent a delay. Wallentin defines what is "reasonable":

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 [and, post-Sturgeon, delay] 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.

So even if the failure is extraordinary (and almost all tech failures cannot be in the light of the two-pronged Wallentin test), the airline must still try to deploy "all of its resources", short of "intolerable sacrifice" to stop you being delayed. This could include using a spare crew or plane, trying to procure one from another company, or even paying to get you a ticket on a rival airline's plane. If they didn't try to do all these things, they arguably are obligated to pay compensation - even if the cause of the delay was extraordinary.

I apologise for the length of this post, but I hope it is useful to show that a) Wallentin sets clear tests for the airlines to meet if they wish to be exempted from paying compensation for a delay; and b) it is therefore unwise and unnecessary to invent your own tests for what might constitute extraordinary circumstances. Stick to the tests provided in law, and you'll have the best possible chance of winning your claim.

JPears

Vauban, Your post is most useful and concise as it can be.
I didnt word my post very well - too tired and too much wine!
The frequency of fault as the wording says, is insufficient "in itself" ie stand alone, but with a combination of other facts and occurances, personally I think it is still relevant to a degree in your presentation to the judge?

Ich_2

I suspect this might just be an EC

Finally finished work at 4 am this morning. Was delayed by taxiing back to the terminal and calling the police out to the aircraft (twice) to chuck off some young gentlemen who intended to travel to Ibiza for a stag party.

Vauban

Ich wrote: »

I suspect this might just be an EC

I think so too. Oh, the joys of the great British public ... And how many peoples hours did they waste? Like those folk who board the aircraft late. Oh no - now you've got me started again ...:D

Ich_2

By all accounts some of them had to be physically carried off by the police.

Folk need to understand that it is a criminal offence to be drunk on-board an aircraft (it is a huge safety issue if nothing else)
Refusing to obey the instruction of the Captain or Cabin Crew is also an offence.