TC Defence - Electronic Module Sudden Failure

martin1372

I have posted before and have raised an action at Hamilton Sheriff Court. The court hearing is on 8/8/13 and this is Thomas Cook's defence:
Explained and averred that the aircraft suffered from an electronic module sudden failure and there were no previous reports on T/O CONFIG warning system. Explained that an electronic module sudden failure is an extraordinary circumstance in terms of EU regulation 261/2004. Explained and averred that the defect could not have been foreseen. Further explained and averred that is terms of Article 19 of the Montreal Convention 1999 the carrier is not liable for damage occasioned by delay if it proves that is and its servants took all measures that could be reasonably be required to avoid the damage or that it was impossible for it or them to takes such measures. Explained and averred that in any event in terms of Article 35 of the Montreal Convention 1999 the Pursuer's claim is time barred.
This has been sent to me as Thomas Cook's defence by Simpson & Marwick solicitors.
Any opinions and advice would be appreciated.

martin1372

Anyone got any advice?

romanby1

martin1372 wrote: »

I have posted before and have raised an action at Hamilton Sheriff Court. The court hearing is on 8/8/13 and this is Thomas Cook's defence:
Explained and averred that the aircraft suffered from an electronic module sudden failure and there were no previous reports on T/O CONFIG warning system. Explained that an electronic module sudden failure is an extraordinary circumstance in terms of EU regulation 261/2004. Explained and averred that the defect could not have been foreseen. Further explained and averred that is terms of Article 19 of the Montreal Convention 1999 the carrier is not liable for damage occasioned by delay if it proves that is and its servants took all measures that could be reasonably be required to avoid the damage or that it was impossible for it or them to takes such measures. Explained and averred that in any event in terms of Article 35 of the Montreal Convention 1999 the Pursuer's claim is time barred.
This has been sent to me as Thomas Cook's defence by Simpson & Marwick solicitors.
Any opinions and advice would be appreciated.

Go through the defence with a fine tooth comb. Montreal convention does not apply you are claiming om EC 261/2004. Google and download the regulation, Wallentin and Sturgeon rulings. The defence, a fulty module is not an extraordinary circumstance and you will have to make that clear to the judge if it gets that far.

martin1372

I have already EC 261/2004 and Wallentin in my submission to the court.

System

romanby1 wrote: »

a fulty module is not an extraordinary circumstance

How come? Are you aware of the MTBF, servicing, maintenance & testing criteria etc to make that claim?

David_e

!!!!!! wrote: »

How come?

Possibly because the Walletin ruling says that Extraordinary Circumstances are those that "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".

!!!!!! wrote: »

Are you aware of the MTBF, servicing, maintenance & testing criteria etc to make that claim?

I'm not sure that the Wallentin ruling requires any such analysis to be made. Indeed the ruling 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’ "

Happy to be shown otherwise though.

System

David_e wrote: »

Possibly because the Walletin ruling says that Extraordinary Circumstances are those that "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".

You are trying to interpret the ruling that ANYTHING happening to an airline's aircraft in the way of fault etc is not extraordinary. If they can prove to a court that this module has never failed on one of their aircraft before and all the servicing etc is up to date then it has to be considered as extraordinary.

The Wallentin ruling is still open to interpretation in their own way by other legal people. It is not black and white

David_e

!!!!!! wrote: »

You are trying to interpret the ruling that ANYTHING happening to an airline's aircraft in the way of fault etc is not extraordinary. If they can prove to a court that this module has never failed on one of their aircraft before and all the servicing etc is up to date then it has to be considered as extraordinary.

Not my interpretation; I was just quoting an extract from the ruling which does seem to be very narrow in its interpretation of "Exceptional Circumstances". Servicing to a given standard is, as I understand it, mosr certainly not a defence.

The results of challenges reported on this board suggest that airlines use EC as the default defence when it is often not justified.

!!!!!! wrote: »

The Wallentin ruling is still open to interpretation in their own way by other legal people. It is not black and white

Indeed.

martin1372

I am very interested to find out if anyone else has been quoted this by Thomas Cook as a defence.
I have asked for a further explanation of what this fault is as I can find nothing on google.

martin1372

We were flying home from Antalya. However the problem was on the outbound flight from Glasgow which was also considerably delayed. This is the sum total of the defence. They do not state in their defence when this failure occured or what they did to make alternative arrangements such as make another aircraft available.