Flight delay due to Cruise ship technical fault

Justice13075

Is there anything within EU261/2004 which relates to package holiday flights. I believe that flights that are within package holidays are subject of the same regulation as any other flights and have primacy over any national legislation.

Tyzap

I understand the following directive as follows... when flights are delayed etc by the airline, they are responsible. When the package is changed/altered by the tour operator, they are responsible. It's not easy to follow.

2.2.6. Scope of the Regulation in relation to the Package Travel Directive
Article 3(6) and Recital 16 of the Regulation stipulate that it also applies to flights within a package tour, except where a package tour is cancelled for reasons other than cancellation of the flight. It is also stated that the rights granted under the Regulation do not affect the rights granted to passengers under the Package Travel Directive(see 21). Travellers thus have, in principle, rights in relation to both the package organiser under the Package Travel Directive and the operating air carrier under the Regulation. Article 14 (5) of Directive (EU) 2015/2302 on package travel and linked travel arrangements, which will become fully applicable on 1 July 2018, also provides that any right to compensation or price reduction under that Directive does not affect the rights of travellers under the Regulation, but specifies that compensation or price reduction granted under passenger rights regulations and under that Directive shall be deducted from each other in order to avoid overcompensation.
However, neither the Regulation nor the Directive deals with the question of whether the package organiser or the operating air carrier ultimately has to bear the cost of their overlapping obligations22. Resolving such a matter will thus depend on the contractual provisions between organisers and carriers and the applicable national law. Any arrangements made in this regard (including practical arrangements to avoid overcompensation) must not impact negatively on the passenger's ability to address his claim to either the package organiser or the air carrier and to obtain the appropriate entitlements.

(21)
Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158, 23.6.1990, p. 59). That Directive is replealed with effect from 1 July 2018, when the Member States have to apply the national measures transposing Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European7

Source...
COMMISSION NOTICE
Interpretative Guidelines on Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and on Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council

Justice13075

Was this package holiday booked before 1st July 2018 or before that is when the new regulations came into force. Still not clear whether that affects your rights to compensation. It is probably a good idea to speak with bott & co and see what they say.

NAH

Spoke to Bott today. They said this wasn’t something they would deal with under EU 261 as it’s a Package Travel Directive issue. Bit crackers really as whatever way you look at it, I got back into UK 15 hours later than I was expecting. I will have a read through that and maybe register a complaint through ABTA. Not giving up, especially with the shower from TUI

Graingm

I am in the process of making a claim against TUI for the 12 hr flight delay, I am filling a claim via CEDR as my initial claim was refused advising “bad weather”, really!

Below is the response I have just received. (I missed out the attachments)

(the Claimants) had a reservation to travel with TUI Airways Limited (TUI) on board flight number TOM404 (the Flight) from Birmingham Airport (BHX) to Muscat International Airport, Oman (MCT) on the 29 November 2018 (the Flight Date). The Claimants claim compensation for the delay to the Flight.
2 TUI confirms that the Flight arrived more than three hours after its scheduled time of arrival.
3 However, TUI is not obligated to pay compensation where the passengers have either travelled for free on the Flight or at a reduced price not available directly or indirectly to the public.
4 In this instance, the Flight was chartered by Marella Cruises and only passengers who had booked a package cruise (the Cruise) with Marella Cruises could take the Flight. As part of the package booking, flights were included within the price of the Cruise and were not subject to any separate booking.
5 It is therefore denied that the Claimants are entitled to compensation, as alleged or at all.
6 In the alternative, TUI is not obligated to pay compensation if the delay was caused by an extraordinary circumstance, and where TUI took reasonable measures to avoid the delay.
7 In this instance the delay to the Flight was caused by an extraordinary circumstance, namely a delay to the cruise ship Marella Discovery (the Vessel) due to engine issues resulting in a power blackout on the Vessel. The delay to the Flight could not have been avoided even if all reasonable measures had been taken.
8 For the above reasons, TUI has no liability to pay the compensation claimed.
Particulars
9 The aircraft which the Defendant assigned to operate the Flight bore registration G-TUIB (the Aircraft) [attachment, page 1].
10 The Flight was scheduled to depart at 10:30 UTC on the Flight Date and to arrive at 17:30 UTC the same day [attachment, page 1].
11 The Claimants, along with all other passengers on the Flight had booked the Cruise with Marella Cruises, a subsidiary of the TUI Group. As part of the package booking, flights were not booked separately, but were included in the price of the Cruise. The Cruise was scheduled to depart from MCT on the Flight Date.
12 TUI does not operate from BHX to MCT as a standard operating route. The Flight therefore had to be chartered by Marella Cruises for the sole purpose of connecting passengers to the Vessel. As a result, passengers could only take the Flight if they were booked on the Cruise. The Flight between BHX and MCT was not open for any bookings from the public generally. The Flight was a utility flight from BHX to MCT only to enable passengers to reach and connect with the Vessel in order to take the Cruise.
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13 On the Flight Date, and while on its regular cruise route, the Vessel suffered engine issues which resulted in a blackout, and which prevented the Vessel from arriving at MCT at the scheduled time and without a long delay. See TUI’s Daily Operations Report [attachment, pages 4, 5].
14 As explained above, the Flight had been scheduled so as to allow for the passengers to connect to the Vessel. Since the Vessel had been delayed, and considering the reason for the operation of the Flight as described in paragraph 12 above, the scheduled operation of the Flight was rendered illogical, inconvenient and also possibly unsafe, as passengers would have arrived at the port in Oman with nowhere to go until the Vessel arrived.
15 Accordingly, the Flight was delayed for a sufficient period to allow the Vessel to be in place at MCT to receive passengers by the actual time of arrival of the Flight without an excessively long wait time in Oman. TUI accommodated passengers and co-operated with Marella Cruises by keeping the Aircraft and sufficient staff on hand to operate the Flight without long delay.
16 Following the delays suffered by the Flight, passengers of the Flight were informed of the delay and were advised to stay at home where possible, alternatively were provided with welfare, which included day rooms, transport and vouchers. See TUI’s Airline Daily Log [attachment, page 7].
17 The new expected arrival time for the Vessel in MCT was approximately 06:00 UTC on 30 November 2018. See TUI’s Airline Daily Log [attachment, page 7].
18 After re-planning in conjunction with the Vessel’s arrival, the Flight actually departed BHX at 22:20 UTC on the Flight Date and arrived in MCT at 5:23 UTC on 30 November 2018 [attachment, page 1]. This resulted in a total delay of 11 hours and 53 minutes, but was at the most convenient time for passengers to board the Vessel.
The Regulation
19 Article 3(3) of EC Regulation 261/2004 (the Regulation) provides that where passengers are “travelling free of charge or at a reduced fare not available directly or indirectly to the public”, the Regulation does not apply.
20 Accordingly, pursuant to Article 3(3) given the price paid was for a package holiday, the Claimants either travelled for free on the Flight or at a reduced price and therefore the claim falls outside of the Regulation. As the Flight was only available to be taken by passengers who booked for the Cruise, and the cost was subsumed within the price paid for the Cruise, it was not a fare available directly or indirectly to the public generally. It was only available to a limited group of individuals – those who were booked on the Cruise to commence on the Flight Date.
21 Consequently the Claimants’ claim for compensation in respect of the Flight does not fall within the scope of the Regulation, and based on this TUI has no liability to compensate the Claimants.
22 Further to this, Article 5(3) of the Regulation creates an exception to the right to compensation where the delay was caused by “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.
23 The recent CJEU case of Peškov! & Peška v. Travel Services a.s., C-315/15 confirms at paragraphs 23 and 24 (emphasis added):
“23. ... it is clear from the Court’s case law that the premature failure of certain parts of an aircraft does not constitute extraordinary circumstances, since such a breakdown remains intrinsically linked to the operating system of the aircraft. ...
24. In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ ....
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24 Matters are ‘inherent’ in the carrier’s operations if they are internal to them, and not ‘inherent’ if they have some external or extraneous cause. In other words, in order to be ‘inherent’, the event must be one to which the airline’s operations themselves give rise.
25 In determining whether an event is intrinsically linked to the operations of an aircraft, one should focus on the nature and source or origin of the event. In Jet2.com Limited v. Huzar [2014] EWCA Civ 791, Elias LJ explained the correct approach at paragraph 21 as follows:
“21. In my judgment, it is plain from the court’s answer to questions 1 to 4 that when considering whether there are extraordinary circumstances, the court has to focus on the source or events which cause the problem, not its resolution. A technical problem may indeed constitute an extraordinary circumstance provided it stems from an event which is not inherent in the normal exercise of the activity of the air carrier concerned and is an event which is outside the carrier’s control.”
26 The above definition cannot be said to apply to the occurrence of an engine issue resulting in a blackout or power outage in a connecting cruise ship, which is both external TUI’s operations and/or is an extraneous cause outside of the control of TUI, and cannot therefore be inherent. TUI had no control over the operating of the Vessel, and the delay was not caused by any fault of TUI.
27 Accordingly, Articles 3(3) and 5(3) are maintained in denial of liability for compensation.
Reasonable Measures
28 The delay could not have been avoided even if all reasonable measures had been taken, within the meaning of Article 5(3) of the Regulation.
29 “All reasonable measures” means those measures which, at the time the extraordinary circumstances arose, were “technically and commercially viable for the air carrier concerned” (Case C-549/07 Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA [2009] Bus LR 1016 at [17]).
30 Wallentin goes on to say that “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.”
31 Accordingly, TUI must in effect show that it would not have been able to do anything more to avoid the delay without making intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.
32 The application of the reasonable measures taken by TUI in relation to the Flight is evident in the steps that were taken by them upon occurrence of the delay of the Vessel.
33 TUI took all possible steps to mitigate the inconvenience and delay the Claimants experienced by ensuring that the Flight coincided with the arrival of the Vessel at MCT. This decision was taken in order to create the best possible customer experience. The delay experienced was a direct result of the Vessel’s delay, and the Flight was delayed only in order to minimise disruption to the passengers.
34 As a matter of fact, the passengers would have been inconvenienced considerably more if the Flight had not been delayed to coincide with the arrival of the Vessel at MCT. If the Flight had arrived at the scheduled time of arrival (17:50 UTC), the local time at MCT would have been 21:50. The passengers would have had nowhere to go until the Vessel arrived in port the following morning. It was therefore decided to hold the Aircraft in the UK, as it was clearly the safest and most convenient option for the passengers.
35 TUI also ensured that it had the relevant staff and Aircraft on hand to operate the Flight.
36 Accordingly TUI did use all reasonable measures to avoid the delay and acted in the best interests of the passengers. There was no other reasonable and/or technically and/or economically viable option
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available to TUI that would have enabled it to operate the Flight with a lesser period of delay than actually occurred.
Conclusion
37 The Regulation does not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public.
38 Since the Flight was only available to those who had booked a package cruise, the Flight falls outside the scope of the Regulation in terms of Article 3(3). Therefore the Claimants cannot claim compensation under the Regulation.
39 In the alternative, an operating air carrier shall not be obliged to pay compensation in accordance with Article 7 if it can prove that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
40 The delay to the Flight was caused by extraordinary circumstances in the form of the Vessel’s delay as a result of a power blackout. In order to minimise the delay, TUI ensured that the relevant staff and Aircraft was on hand to operate the Flight as soon as was reasonable in the circumstances. For the above reasons, both limbs of Article 5(3) are satisfied and the Claimants are not entitled to compensation

Graingm

Looks like I won my case, the adjudicator ruled in my favour and has ordered TUI to pay €600 per passenger claimed. I don’t think they have a right of appeal as the judgement was final. I need to wait 28 days to receive my payment, at this point I will share further info.

Tyzap

Graingm wrote: »

Looks like I won my case, the adjudicator ruled in my favour and has ordered TUI to pay €600 per passenger claimed. I don’t think they have a right of appeal as the judgement was final. I need to wait 28 days to receive my payment, at this point I will share further info.

Thats a great result:beer:

You're right, there cannot be an appeal.

I will be very interested to read the adjudication if you are happy to post or PM to me. It was a very unusual case and it would be great to see what CEDR made of it.

TUI certainly threw everything at it in their defence, I've never seen so many excuses or reasons for a delay, quite extraordinary really!

Well done:)

JPears

Tyzap wrote: »

Thats a great result:beer:

You're right, there cannot be an appeal.

I will be very interested to read the adjudication if you are happy to post or PM to me. It was a very unusual case and it would be great to see what CEDR made of it.

TUI certainly threw everything at it in their defence, I've never seen so many excuses or reasons for a delay, quite extraordinary really!

Well done:)

ROFL....:rotfl:

Graingm

I will post the full outcome once I have received my payment which was ordered by the adjudicator within 28 days.

bagand96

So in reality TUI would have been better flying everyone to Muscat on time, and then have everyone stuck there waiting 12 hours for the ship - which may have been in significantly worse conditions than they were able to arrange at UK departure points?

Sometimes, and I know this will be going against the popularity opinion of this board, but sometimes there are occasions where EU261 puts airlines in an impossible situation and can defy common sense.

As for the questions on flights home. It’s bonkers to assume compensation from the airline should be due. If they’d operated the flights on time they would have flown empty aircraft back to the UK, and stranded the cruise passengers in Muscat?!