Air Europa delay

Bee84

Hi,
I wondered if anyone could help clarify if I have a case against Air Europa. This summer was travelled with them from London Gatwick toTunis via Madrid. The outgoing journey was fine and the return to Madrid was also okay. The delay happened with the Madrid Gatwick leg of the journey. We were meant to leave at 7:35am (Spanish time) but there was a problem with the airplane toilet which they couldn’t repair and they had us moved onto another plane so we didn’t depart until 11:22am meaning we arrived in London over 3 hours late at 12:22pm (UK time).

I used the online claim form and this has been their response:

My name is Mauge P. of the Customer Relations Department, and I’m contacting you about our flight UX1013 MAD-LGW 02/09/2022.
 

We are very sorry about the delay that the flight mentioned above suffered on its departure. Due to an unexpected flight safety shortcoming, which for the company represented extraordinary circumstances, a change of aircraft had to be carried out.

We assure you that it is always the Company's aim to offer the greatest punctuality and service to all its passengers and that we make a real effort to achieve this; in fact, we are constantly pushing for progress in order to keep a delay as short as possible.

We would like to inform you that in such cases the company offers assistance to the passengers in accordance with the normative in force in each case up to the departure of a given flight depending on the waiting period, the length of the air route and the country of departure of the affected flight.

Likewise, we would like to inform you that in case you decided not to take the initially booked flight or an alternative one, hence, you decided not to fly; you can apply for the reimbursement of the non-used portion of your ticket if the delay of the flight exceeds five (5) hours. If this applies to you please contact the sales office that issued your ticket in order to request a refund of the non-used portion of that ticket.

So they’re saying I’m only due compensation if I didn’t take that connected flight.

I’ve looked up EU regulations and as far as I’m aware it clearly states that for flight delays of 3 hours I’m due some compensation as per this table:

Compensation - delay at

arrival Amount

in EUR

250

Distance

1 500 km or less

400 More than 1 500 km within the EU and all other

flights between 1 500 and 3 500 km

600

More than 3 500 km • If you reach your final destination with a delay of 3 hours or more you are entitled to compensation if the delay is not

caused by extraordinary circumstances. 

I’m sorry for the lengthy post but I’m really not sure if I’m reading this table correctly and being fobbed off by the Air Europa or if I’m wrong.

Any help would be appreciated.

thanks
Rabiaa

Alan_Bowen

It appears they are trying to claim a safety issue is an extraordinary event which absolves them of any liability to pay compensation, and as you suspect it doesn't. If you travelled from Tunis that morning, so this was a directly connecting flight, the claim is for the entire distance, not just from Madrid which appears to be around 1889 km, so a higher level of compensation may be payable. If you had overnighted in Madrid, then the 250 Euros is indeed the amount claimable

eskbanker

Bee84 said:

We are very sorry about the delay that the flight mentioned above suffered on its departure. Due to an unexpected flight safety shortcoming, which for the company represented extraordinary circumstances, a change of aircraft had to be carried out.

The phrase "unexpected flight safety shortcoming" is used by airlines who see it as allowing them to claim extraordinary circumstances, but it's been challenged successfully in court, notably in van der Lans v KLM, which concluded that:

a technical problem, such as that at issue in the main proceedings, which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision

That case also refers to the earlier Wallentin-Hermann one, which is often referred to as establishing the principle that technical issues can't be relied on as extraordinary circumstances, so worth reading up on those and constructing a challenge to Air Europa accordingly.

Bee84

Alan_Bowen said:

It appears they are trying to claim a safety issue is an extraordinary event which absolves them of any liability to pay compensation, and as you suspect it doesn't. If you travelled from Tunis that morning, so this was a directly connecting flight, the claim is for the entire distance, not just from Madrid which appears to be around 1889 km, so a higher level of compensation may be payable. If you had overnighted in Madrid, then the 250 Euros is indeed the amount claimable

Thanks for answering. That’s what I suspected. And yes it was directly connecting- we left Tunis at around 1am with about 2 hours wait for the 7:30 flight.
Do you think it’s worth responding to them again directly as I received the same response when I argued that point back to them?

Bee84

Hi again,

So I emailed back with these arguments and links to cases and they came back saying they were sticking to their initial refusal. Is the next step now going to the Spanish authorities?

thanks