Passengers are entitled to compensation in case of long delays or cancellation of a flight. European Regulation 261/2004 (hereinafter: the Regulation) determines what amount should be compensated. An air carrier does not have to pay compensation in case extraordinary circumstances occurred and the air carrier could not have prevented these circumstances or the consequences thereof by implementing all reasonable measures. According to the preamble to the Regulation, extraordinary circumstances may occur in particular in case of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. Extraordinary circumstances are also deemed to exist if the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft.
Case law shows that the courts apply a high standard for assuming the existence or non-existence of extraordinary circumstances. An air carrier has to demonstrate in a substantiated manner that extraordinary circumstances existed. If the air carrier demonstrates this successfully, the court will assume that extraordinary circumstances existed. I refer in this connection to a recent decision rendered by the Arnhem Subdistrict Court.
Court: an extraordinary circumstance existed
A passenger booked a flight with El Al Israel Airlines (hereinafter: El Al) from Amsterdam to Tel Aviv. The flight was to leave on Friday 19 February 2016 at 09.15 hours. Something went wrong during what is known as the ‘push back’. The upright part of the left wing (winglet) was seriously damaged. The passengers were informed that this incident meant that it would not be possible to transport them to Tel Aviv before the Shabbat. They departed in a replacement aircraft on Saturday 20 February at 20.41 hours.
The passenger claims compensation before the Subdistrict Court on the basis of the Regulation. El Al argues, however, that extraordinary (meteorological) conditions existed. The pushback truck skidded as a result of slippery conditions for example. The passenger contests that meteorological conditions played a role and considers that a collision at the airport is inherent in the normal conduct of the activities of an air carrier.
The Subdistrict Court does not include the meteorological conditions in its opinion. The aircraft was damaged as a result of a collision with a fence caused by the driver of the airport tow truck. That driver is a ‘third party’, which means that there was ‘an outside cause’. The damaged caused unexpected flight safety shortcomings. The collision is not inherent in the normal performance of El Al’s activities. The reason being that the air carrier could not exercise influence on this outside cause. The Subdistrict Court refers in its considerations to the Wallentin-Herman ruling of the Court of Justice of the European Union (CJEU).
The Subdistrict Court subsequently answers the question whether El Al took all reasonable measures to prevent a delay. The air carrier assessed whether a suitable spare part was available and concluded that the repairs would not be completed before the start of the Sabbath. It was therefore ultimately decided to deploy a replacement aircraft.
El Al demonstrated sufficiently on the basis of the above that it could not have prevented the collision and that it could not have avoided the delay. The air carrier is therefore not obliged to pay compensation to the passenger, according to the Subdistrict Court.
This decision is remarkable when compared to decisions relating to a similar body of facts. In previous case law, which involved a collision caused by a third party with a mobile baggage belt or mobile stairs (District Court of The Hague, North Holland District Court, Court of Justice of the European Union) that caused a technical malfunction, the relevant event was not considered to be an extraordinary circumstance. The event was considered to be an event inherent in the normal performance of the activities of an air carrier. The decision in the El Al case offers opportunities for air carriers in that context.
In the event extraordinary circumstances within the meaning of the Regulation occurred and a passenger claims payment of financial compensation in connection with a delay or cancellation of the flight, an air carrier will not automatically be obliged to pay such compensation. The above decision shows that reliance on extraordinary circumstances is not rejected forthwith. It is therefore always worth the trouble to check whether there might be extraordinary circumstances and, if this is the case, to put this forward.