Flight delay due to Cruise ship technical fault

Justice13075

Maybe you would have a point if Airlines complied with Eu261/2004 and paid when they are liable. But they don't they will do anything they can to get out of paying rightful compensation and until they do start complying they should be taken for all you can get.

jpsartre

bagand96 wrote: »

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.

In this particular case I agree. Compensation is probably due under the letter of the law but it seems pretty clear to me that it's not in the spirit of the regulations. After all, the aircraft was delayed because it was deemed to be in the interest of the passengers. But at the end of the day it's almost impossible to write down general rules that will give the "correct" result in every specific case.

jpsartre

Justice13075 wrote: »

Maybe you would have a point if Airlines complied with Eu261/2004 and paid when they are liable. But they don't they will do anything they can to get out of paying rightful compensation

That's not my experience. I've had 15 compensation claims settled by airlines without any problems. I've had 3 claims rejected that I handed over to Bott & Co, 2 of which Bott later dropped (so probably no valid claim). I've had 1 case rejected that I took to AviationADR where the decision went against me (so probably no valid claim there either). Finally I've had 1 claim rejected that I probably could have won had I pursued it but I didn't know better at the time. So out of my 20 claims, only 1 or 2 were incorrectly rejected by the airline.

bagand96

jpsartre wrote:

In this particular case I agree. Compensation is probably due under the letter of the law but it seems pretty clear to me that it's not in the spirit of the regulations. After all, the aircraft was delayed because it was deemed to be in the interest of the passengers. But at the end of the day it's almost impossible to write down general rules that will give the "correct" result in every specific case.

What TUI Airways should have done on the outbound leg is flown on schedule to Muscat... “Ladies and Gentleman welcome to Muscat. We regret to advise you your cruise ship is 12 hours away, please contact Marbella Cruises for further advice, thank you for flying with TUI Airways”


Likewise, on the return they should have operated empty 787s on schedule from Muscat back to the UK and left the passengers to deal with Marella Cruises. I’m sure the passengers would have been very comforted to know the aircraft had departed on time and would have been incredibly understanding. :rotfl:

jpsartre

As I said, in this particular case I agree that the ruling doesn't make much sense from a common sense POV

fifeken

jpsartre wrote: »

I've had 15 compensation claims settled by airlines without any problems.

When you say without any problems, does that translate to being paid without any debate or did you have to push things a bit?
I've only ever had one that I can recall was made without at least an initial refusal.

jpsartre

fifeken wrote: »

When you say without any problems, does that translate to being paid without any debate or did you have to push things a bit?

The former. I do think it's probably very airline dependent with some being better than others. Based on what I've read in here I'd expect things to less smoothly with airlines line Jet2 or TUI. My claims were:


SAS: 8 claims, all paid out quickly and without argument.


BA: 9 claims (technically one was against Sun-Air, a BA franchise partner), 6 paid out without argument, 3 rejected and passed on to Bott, 1 of those ultimately succesful.


Brussels Airlines: 1 claim, paid out without argument.


KLM: 1 claim rejected, passed on to AviationADR who sided with KLM.


Wideroe: 1 claim rejected, probably could have won if I pursued it but too late now.

Graingm

My response to the 21 pages response from TUI.

Based on the response from TUI I can see they have a legal team to respond on their behalf, as I am not legally trained I look to those that have the knowledge and accessibility to information to support my case, in particular with ATOL protection, EU Regulation 261/2004, and all relevant laws. Without prejudice; With reference to Points 37 (and 19 to 21); At the time of booking the package holiday was sold as an all-inclusive including Flights, Accommodation & Cruise, as no breakdown of individual parts of the package were declared at this time points 19 – 21 are irrelevant and TUI cannot now say the flight was free or at a reduced rate, the flight could have been the most expensive part. Furthermore, each of the claimants paid an additional £299 each for premium class seats so the flights were not free. With reference to point 38; Many package holidays have chartered flights which only have holidaymakers who are part of a package holiday, this holiday could not have been possible without a flight as part of the package, therefore it must be within the scope of the regulation. I also noted from your additional information supplied that a VIP had boarded the plane (pax Bowerman) how can you have a VIP on a chartered package holiday only flight? With reference to point 39 & 40; The delay of the flight was not delayed due to “extraordinary circumstances”, there was no technical issue with the aircraft that would have prevented the aircraft taking off at the scheduled time. The fact that TUI under the request of Marella Cruises, a subsidiary company of TUI requested to delay the flight due to a technical fault which slowed the ship has no bearing on the flight delay due to the serviceability of the aircraft. Therefor the flight could have taken off at the scheduled time, instead TUI decided to delay the flight by 12 hours to avoid additional costs on their part for their own commercial gain and not the best interests of the holidaymakers. I would also draw your attention to my initial response I received from TUI claiming “we have investigated the claim for flight TOM404 from Birmingham to Muscat and our delay handling logs show that the flight was delayed due to bad weather conditions. In this draft, the Commission has intimated that the following would be considered extraordinary circumstances: Neb : 10. Weather conditions incompatible with the safe operation of the flight.” Clearly my case was not investigated and TUI blatantly lied with their initial response. They further went on when I appealed to advise “I am sorry to hear that you are unhappy with our response and having reinvestigated into your claim I can confirm that our position stands in regards to your flight.” Clearly TUI did not reinvestigate, so based on their first and final response they stated Bad weather, this was not the case and as such any use of extraordinary circumstances should be disregarded as they cannot be believed. Additional comments; Referring to my previously attached letter (TUI Operations Team Letter) This letter was given to each passenger on leaving the ship at the final port prior to disembarking. As you will see the letter has the TUI logo and is signed by the TUI Customer Operations Team. The wording is very clear saying “we would like to apologise for the rescheduling of your flight” and does not mention Extraordinary Circumstances only rescheduling of the flight. It also says if you are covered by holiday insurance and are entitled to delayed flight cover this will be additional to the refund you have been offered from TUI. The refund offered by TUI only covered the missed ports, nothing with the delayed flight. Therefor this is why I believe we have a valid case for compensation under the EU Regulation 261/2004..

Graingm

Outcome from the adjudicator. I have left out personal details;

Independent Redress Scheme for Air Passengers
ADJUDICATOR’S DECISION v TUI Airways Date of Decision: 30 May 2019
Passenger(s): Mr. X and three additional passengers
Flight: TOM404 from Birmingham (BHX) to Muscat (MCT) on 29 November 2018 (“the Flight”)
Agreed facts
• The passenger and three others on the same booking were booked on the Flight and presented themselves for boarding.
• The Flight arrived more than three hours after its scheduled arrival time.
Issues in dispute
• The passenger claims £2,072.00 for the delay to the Flight.
• The airline submits that the Flight was delayed due to extraordinary circumstances which could not
have been avoided even if all reasonable measures had been taken and that therefore it has no obligation to pay compensation.
Decision making principles
• In order to succeed in a claim against the airline, the passenger must prove on a balance of probabilities that they are owed compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 (“Regulation 261”).
• The airline will not have to pay compensation where 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.
• I have carefully considered all of the issues raised and the documents provided. Both the passenger and the airline should be reassured that if I have not referred to a particular issue or document, this does not mean that I have not considered it in reaching my decision.
Reasons for decision
1. The airline suggests that this claim falls outside of Regulation 261 due to the fact that the passenger “either travelled for free on the Flight or at a reduced price not available directly or indirectly to the public”. It stipulates that “only passengers who had booked a package 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.”

2. Regulation 261 states that “[t]his Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public”. I find that the burden of proving that the fare the passenger paid for the Flight is not directly or indirectly available to the public rests with the airline. Apart from the statement made above, the airline has not provided any evidence to establish that the fare which the passenger made use of was not “available directly or indirectly to the public”. I consider that the fare of the Flight was included in the cruise price each passenger paid. The airline has failed to demonstrate that the Flight was offered for free and that passengers only paid for the cruise itself. Furthermore, I deem that the fare was “available directly or indirectly to the public”, as any person could have booked a place on the cruise and hence on the Flight. I subsequently deem that the Flight falls within the scope of Regulation 261 and will thus look into and assess the passenger’s claim of compensation below.
3. The airline submits the Flight was delayed due to “a delay to the cruise ship Marella Discovery (the Vessel) due to engine issues resulting in a power blackout on the Vessel.” It hence contends that the delay to the Flight was caused by extraordinary circumstances and that it is hence not obliged to pay compensation under Regulation 261.
4. In order to be discharged from its obligation to pay compensation, it is for the airline to establish that the Flight was delayed due to extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.
5. To be classified as extraordinary, an event shall not be inherent to the operations of the airline, and beyond its control. In Peškov! Peška v Travel Service A.S. (Case C-315/15), the Court of Justice of the European Union (“CJEU”) clarified that extraordinary circumstances under Regulation 261 refer to situations that “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 outside [the airline’s] actual control”. The “reasonable measures” burden, on the other hand, is satisfied when even if the airline 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.
6. The airline asserts that “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.” It submits that “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.” The airline elaborates that “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.”
7. I acknowledge the airline decided to delay the Flight, as the Marella Discovery cruise ship would not have been ready to depart as scheduled. The airline suggests that “the scheduled operation of the Flight was rendered illogical, inconvenient and also possibly unsafe”. Yet, I remain unaware why the airline relies on the delayed arrival of a ship to demonstrate that the Flight was delayed as a result of extraordinary circumstances. My understanding is that the Flight itself was not subjected to any extraordinary circumstances and could have departed on schedule, particularly given that the airline admits it kept “the Aircraft and sufficient staff on hand to operate the Flight without long delay.” I hence consider the airline took a commercial decision to delay the Flight, since the same arriving on schedule would have meant that passengers would have been unable to directly transfer on the cruise ship due to the engine issues it was facing. In that sense, I am satisfied the decision to delay the Flight was within the airline control.
8. Furthermore, even if it is considered that the technical defect of the cruise ship directly affected the operation of the Flight, I am mindful that the CJEU, in Wallentin-Hermann (Case C-549/07), ruled that technical problems in an aircraft are “not covered by the concept of ‘extraordinary circumstances’”. Whilst the case refers solely to “aircraft technical problems”, I am convinced that it can be applied, by analogy, to the cruise ship on which all passengers booked on the Flight were scheduled to travel. I also note that the various items that related to technical faults were removed from the non-binding but authoritative Civil Aviation Authority’s list of extraordinary circumstances following the Jet2.com v Huzar Court of Appeal judgment.
9. In any case, I am satisfied that the airline has not presented sufficient evidence or explanations to satisfy the burden of demonstrating the existence of extraordinary circumstances which directly affected the Flight itself. Similarly, I deem the airline has failed to establish that the delay to the Flight itself could not have been avoided even if the airline took all reasonable measures. The passenger is thus entitled to compensation for the delay to the Flight under Article 7 Regulation 261.
10. In view of the distance of the Flight of 5944km, pursuant to the great circle method, each passenger is entitled to €600.00 in compensation. I hence direct the airline to pay the total sum of €2,400.00 in settlement of the Regulation 261 compensation claims of all four persons on the passenger’s booking accordingly.

Decision
• The passenger’s claim succeeds in full.
• I direct the airline to pay the passenger the total sum of €2,400.00 in compensation.
• The conversion rate from Euros to Pounds Sterling shall be in accordance with the exchange rate
published on the European Central Bank website on the first working day of the month in which this decision is issued.

Tyzap

Many thanks for posting the adjudicators findings and we’ll done.

I was always clear in my mind that this was a completely un-defendable case. Morality, common sense etc does not enter into the decision making process, so there was always only one correct decision to be made. It’s the way the regulations must be interpreted.