Do you think this falls under Extraordinay Cirsumstances

blackfritz

I was due to fly with Malaysian Airlines from LHR to Kuala Lumpur on flight MH3 on 26th March at 10.50. Due to Technical problems the flight did not actally leave until 19.45 that evening, and arrived in KL around 9 hours late. I wrote using the template letter to Malaysian Airlines, and have now received their rejection of my claim for compensation on the basis of Extraordinary Circumstances.

The reply is as follows

"
Concerning your request for compensation under the EU261/2004 regulation, please allow me to explain the nature of the delay, unfortunately the inbound flight MH002/25 March 2013 Kuala Lumpur to London which would have operated the MH003/25 March 2013 London to Kuala Lumpur experienced a technical defect. Specifically, the aircraft had experienced a water valve defect, which required immediate rectification upon detection.

The effect of this defect would be that there would be no uplifted water onboard the aircraft, water that would be required for drinking water in the cabin and also to enable the toilets/sinks to operate properly.

The reason for the fault is a manufacturing issue. The Aircraft was only 5 months old and this specific part had no history of having sustained a fault in the past. This being the case we are firmly of the opinion that the delay to the flight was due to an extraordinary circumstance that Malaysia Airlines, taking all reasonable measures, could not have avoided. As per EU261/2004 under our duty of care, all passengers were provided with meal vouchers and hotel accommodation for those who required it.

I hope you appreciate that, in the circumstances, Malaysia Airlines is not obliged to pay compensation under EU Regulations 261/2004.

Please accept our sincere apologies for any inconvenience you and your family experienced. Should you require further clarification, you can contact the CAA on [EMAIL="passengercomplaints@caa.co.uk"]passengercomplaints@caa.co.uk[/EMAIL] "

I am of the opinion that the defect causing the delay was not to my flight, but a previous one, and that the cause of the defect was a maintenance issue rather than and Exceptional Circumstance. Is it worth pursuing with Malaysian or to go straight to the No Win No Fee or court route??

Any help greatly appreciated

Davidvgoliath

blackfritz wrote: »

I was due to fly with Malaysian Airlines from LHR to Kuala Lumpur on flight MH3 on 26th March at 10.50. Due to Technical problems the flight did not actally leave until 19.45 that evening, and arrived in KL around 9 hours late. I wrote using the template letter to Malaysian Airlines, and have now received their rejection of my claim for compensation on the basis of Extraordinary Circumstances.

The reply is as follows

"
Concerning your request for compensation under the EU261/2004 regulation, please allow me to explain the nature of the delay, unfortunately the inbound flight MH002/25 March 2013 Kuala Lumpur to London which would have operated the MH003/25 March 2013 London to Kuala Lumpur experienced a technical defect. Specifically, the aircraft had experienced a water valve defect, which required immediate rectification upon detection.

The effect of this defect would be that there would be no uplifted water onboard the aircraft, water that would be required for drinking water in the cabin and also to enable the toilets/sinks to operate properly.

The reason for the fault is a manufacturing issue. The Aircraft was only 5 months old and this specific part had no history of having sustained a fault in the past. This being the case we are firmly of the opinion that the delay to the flight was due to an extraordinary circumstance that Malaysia Airlines, taking all reasonable measures, could not have avoided. As per EU261/2004 under our duty of care, all passengers were provided with meal vouchers and hotel accommodation for those who required it.

I hope you appreciate that, in the circumstances, Malaysia Airlines is not obliged to pay compensation under EU Regulations 261/2004.

Please accept our sincere apologies for any inconvenience you and your family experienced. Should you require further clarification, you can contact the CAA on [EMAIL="passengercomplaints@caa.co.uk"]passengercomplaints@caa.co.uk[/EMAIL] "

I am of the opinion that the defect causing the delay was not to my flight, but a previous one, and that the cause of the defect was a maintenance issue rather than and Exceptional Circumstance. Is it worth pursuing with Malaysian or to go straight to the No Win No Fee or court route??

Any help greatly appreciated

To my way of thinking, it is not extraordinary circumstances. The Wallentin-Hermann judgement is clear in that technical issues with the aircraft are not inherently 'extraordinary circumstances'. However, if the aircraft was as new as they say it was (we only have their word for that though), then I could see that were it to go to court, a judge may view this 'extraordinary' - but then again they may not. Assuming that Malaysian have a UK office address (their website suggests they have 2?) then I would suggest a 'notice before action' letter, then if no positive outcome, issue a claim against them in the courts.

jpsartre

They are claiming it was a manufactoring fault which the Wallentin-Hermann arguably counts as extraordinary:

"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."

Mark2spark

IMO it's not an EC.
You have a valid claim against them.
*They* may well have a claim against the manufacturer, (read the bit about third party claims) - but that's of no concern to you.

David_e

jpsartre wrote: »

They are claiming it was a manufactoring fault which the Wallentin-Hermann arguably counts as extraordinary:

"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."

I read this exception as applying where a fleet wide issue is identified. The case in point sounds like a routine maintenance issue on a plane that just happens to be new. I would ask if the aircraft manufacturer had notified this water valve as a concern. I suspect the answer is not but, if it was, I would ask when they were notified and what action was taken when, etc.. For example, they may have been told but chosen to leave it until a later time to fix.

My view is it looks unlikely to be "exceptional circumstances".