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Compensation v Safety: Extraordinary Circumstances and Birds Strikes in Aviation

The number of people claiming compensation in the case of a flight delay is on the increase, regardless as to the reason of the delay. Being a private pilot myself, there is always a sentence in my mind “Better late than never”. I want to believe that airlines and commercial pilots have also clear in their minds their priorities and in particular their obligation to ensure safety and security of its passengers, without rushing the aircraft checks and maintenance requirements.

The aviation industry has had a long time dispute as the events which may or may not give a right to compensation, in particular in cases of long delays. In 2009, the European Court of Justice (ECJ) defined long delays as a delay of more than 3 hours. Therefore, air passengers who suffer a delay in a flight of 3 hours or more, are entitled to claim compensation for the delay.

Air carriers, however, can still avoid paying compensation if they could prove extraordinary circumstances. The meaning of extraordinary circumstances has been ambiguous and for a long time without a uniform interpretation.

To summarise the law, in the case of delay of more than 3 hours, the air carrier is liable for compensation unless it took all reasonable measures to avoid the damage or it was impossible to take such measures. Reg No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (“Reg 261/2004”), states that the obligations on the air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. On general terms, those circumstances can be identified with events such as political instability, some meteorological conditions, security risks, unexpected flight safety deficiencies and strikes which may affect the operations of the aircraft. Reg 261/2004 continues to say that extraordinary circumstances should be deemed to exist where 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, even though all reasonable measures had been taken by the air carrier concentered to avoid the delays or cancellations.

Reg 261/2004 therefore expressly excludes the right to compensation if the air carrier can prove that the cancellation or delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

In a previous article, we reviewed the Court of Appeal decision in the case of Huzar v Limited of June 2014. The court held that when determining whether a delay or cancellation was caused by extraordinary circumstances, the circumstances must be out of the ordinary. To be out of the ordinary, it must come from events which by the nature or origin are not inherent in the normal exercise of the activities of the air carrier concerned. If therefore, the cause of the delay is one which can be linked to the normal exercise of the activity of the air carrier concerned, then it can be considered that it is in the control of the carrier and therefore not extraordinary. Events caused by acts of third parties, such as terrorism, strikes or air traffic control problems, or because they result from freak weather conditions, cannot be characterised as inherent in the normal activities of the carrier.

Despite the above clarification of the Court of Appeal, the English courts have been making decisions for every taste. Recently, there has been some discussion regarding the extraordinary circumstances in relation to bird strikes. This is a point which we would like to review.

In April 2015, an air carrier lost a compensation claim in the Manchester County Court when the court stated that bird strikes did not count as extraordinary circumstances. The judge’s opinion was that bird strikes happen every day and he highlighted that the word used was "extraordinary" rather than "unexpected", "unforeseeable", "unusual" or even "rare". He therefore decided that extraordinary to him connoted something beyond unusual and the bird strikes were not unusual.

One year later, another English court in Uxbridge decided that the fact that bird strikes were frequent, did not mean they cannot be extraordinary. He compared this situation with the number of cars and bikes in London at rush hour and the fact that incidents are still rare and collisions cannot be considered as “inherent in the normal exercise of the activity”. This was a positive outcome for the airlines and allowed them to reject many claims.

We had to wait until May 2017, when a court from Prague referred a matter for preliminary ruling to the European Court of Justice (ECJ). The ECJ published the decision in the case of Peskova v Travel Service (C-315/15) which seems to clarify whether the air carriers can rely on the extraordinary circumstances defence in order to reject cancellation or delay claims in cases of bird strikes. The short answer is that yes, they can, but with caution.

Surprisely, the ECJ published its decision against the recommendation of the Advocate General which had stated that bird strikes should be regarded as an inherent risk of operating an aircraft and therefore not an extraordinary circumstance. He considered that the airlines have control as they could minimise or prevent somehow collisions with birds but putting measures in place.

Despite the recommendations, the decision of the ECJ was in favour of the air carrier. The court recognised that events may be considered as extraordinary if they are not inherent in the normal exercise of the activity of the air carrier and are outside its control.

The aircraft in the case in question initially showed a technical failure in a valve, which was initially repaired. The aircraft continued its journey and in another flight leg, it collided with a bird requiring safety checks. A local technician did the checks finding no damage, however the airline insisted in a further check by one of its own technicians. The airline’s technician flew to the area and inspected the aircraft, so the delay increased considerably. The outcome of the inspection was again satisfactory.

The ECJ made it clear that a failure with certain parts of an aircraft cannot be considered extraordinary circumstances, as it is intrinsically linked to the operating system of the aircraft and not outside the airline’s control, as they are required to maintain the aircraft and guarantee a proper functioning. Therefore, he considered that the delay in respect of the repair of the valve would have counted towards the right of compensation.

However, the ECJ also decided that a collision between an aircraft and a bird is not intrinsically linked to the operating systems of the aircraft and therefore no inherent in the normal exercise of the activity of the air carrier concerned and outside its control. Accordingly, the bird collision must be considered as an extraordinary circumstance according to Reg 261/2014. Any delay as a consequence of the bird strike therefore would be excluded towards the right of compensation.

The judge also considered whether the measures taken by the air carrier, basically refusing to rely on the first expert’s finding and wanting to obtain a second opinion before allowing the aircraft to be airborne, were appropriate measures to avoid paying compensation. The ECJ considered that reasonable measures according to Reg 261/2004, which an air carrier must take in order to reduce or even prevent the risk of collision with a bird and thus be released from its obligation to compensate, include control measures preventing the presence of birds, provided that such measures can actually be taken by that air carrier, that those measures do not require it to make intolerable sacrifices in the light of the capacities of its undertaking, and that that carrier has shown that those measures were actually taken as regards the flight affected by the collision with a bird.

The ECJ also decided that the time of a further delay caused by another event, not considered extraordinary circumstances, must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival must be paid. In this particular case, the judge decided that the decision of the air carrier not to rely on the local expert and insisting in a second opinion causing a longer delay, was not a reasonable measure. Therefore, the time spent waiting for the second expert would count towards the right of compensation.

Compensation claims will continue to be popular, however this case has identified a further defence for the airline in cases of bird strikes.

Although we hope that flight safety will always be a paramount, it is always a concern that air carriers are somehow penalised for trying to obtain a second opinion when they feel that it is more important to do a further check than having a risky flight.