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Flight delay and 'Exceptional Circumstance'

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PostPosted: Jul 12th, '10, 13:54 
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Having just experienced a 29+ hour flight delay due to 'unavoidable operational circumstances affecting the aircraft' (airlines words) I was wondering if any of the forum users have managed to successfully claim against an airline for delay under the Feb 2005 laws ?

To summarise, the aircraft was initially substantially delayed due to a 'technical fault' and then after being ' repaired ', and eventually taking off, it was found the fault still existed, and the plane turned round and returned to original airport incurring further substantial delay.

Airline involved is TCX, and flight was due out from Antalya on Saturday (2300 local), eventually landing at EMA (0410 local Monday/this morning).


Surely this can't be classed as 'exceptional circumstances' ?

Anybody managed to get them to pay out in circumstances such as this ?

Any advice appreciated.



PostPosted: Jul 12th, '10, 14:21 
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Have you tried your travel insurance? Usually anything over 12 hours is paid on an hourly rate.

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PostPosted: Jul 12th, '10, 14:27 
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Hi Glynis,

I'll obviously be investigating the insurance route (amazingly TCX were very keen for us to focus on this avenue :) ), but I'd imagine the insurance companys don't compensate anywhere near the level highlighted in Feb 2005 laws.

I guess I was just curious, if anybody had been successful with the airlines, or they felt the airlines were just paying lip service to the laws.

(I'm tired and grumpy, can you tell ? :) )



PostPosted: Jul 12th, '10, 16:20 
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The problem you have is trying to prove that TCX have failed in all attempts to get you home earlier without further disruption to you.

As you were delayed in Antalya, with this not being a home base for the airline, aircarft spares, crew etc are not widely available to you and with the nature of the fault ongoing to send a spare crew out may not have been possible or logical.

There may have been other aircraft about within the fleet but by taking one of these, would probably mean a further knock on effect for other flights and clients meaning you have now upset more than one load of passengers.

Looking into subchartering to another airline can also be a lengthy process and being the height of summer, many airlines do not have the resources to help other out. Even the ones that specialize in ad hoc charter or rescue flights may have been busy or have other commitments elsewhere which by helping tcx would have an impact on future flights.

If this had been a home base, juggling the fleet about is sometimes a little easier but when you have an aircraft stuck overseas with not much else available to you, they thought it probably best in their interests and yours to keep you where you are.

I presume the airline took you to a suitable hotel, provided food and drink with information updated to you as and when they had it.

As far as i would be concerned, they have done everything they are asked to do and the term "unaviodable operational circumstances" means just that, a technical problem which is not foreseen and due to the nature of it was completely "unavoidable".

Think of it like a car, you had a fault, repaired it, had an mot and service with the all clear and 100miles down the road the fault appears again leaving you and the car standed. It is not something you envisaged would happen and due to safety, you are left without a car for a day without a replacement being given to you.

Sorry if it seems patronising or anything but that is how it is and being an aircarft makes no difference, just the fact they have 200+ passengers to take care of too.

It would be interesting to see what would happen if you took it further but given the situation, i dount much would be done.



PostPosted: Jul 12th, '10, 16:37 
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Thanks leisurelad. Some interesting points.

After trawling through the Feb 2005 stuff, it appears the crux of these situations seems to be on the interpretation of what's classed as 'Exceptional' and what isn't.

It appears the onus is on the airline to prove the circumstances were 'exceptional' and a 'technical fault' alone doesn't seem to cut it. I can imagine this further being backed up by the fault supposedly being fixed, but then 20 mins into the flight turning out not be. 'Exceptional circumstances' or poor maintenance ? Who knows ?

Some great case history in favour of the passenger (Sturgeon v Condor and Bock/Lepuschitz v Air France) etc.

Interesting reading, and not something I've ever looked into before, or even knew existed.



PostPosted: Jul 12th, '10, 17:03 
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In a way i'm glad that i am out of that side of the business now.

Th AUC - Air User Council may be able to provide something further to you but the problem is, when they brought in all these new rules, no one actually knew what was what and as you so rightly point out, its all about interpretation.

The rules had soo many flaws in them, loop holes it was all really a complete waste of time as from what i believe, they were more to give the airlines such as BA / Virgin etc to stop over booking and leaving cusomers stranded.
I had always worked for a charter outfit that any delay meant the customers had to be looked after so from this point, it didn't really affect us but the way in which these rules have been forced down peoples throat means that no one really seems to have a clear true honest answer with everything being a bit wishy washy.

Let us know how you get on as it would be interesting to see



PostPosted: Jul 12th, '10, 21:13 
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Just about the biggest flaw in the rules are that the passenger can't get at the detail of exactly what happened so doesn't know how true the story given at the airport is. There is case law regarding an Austrian couple who successfully sued Alitalia after showing that they hadn't made reasonably prompt attempts to fix a faulty plane - but they must have had some good insider information about what went on at Rome. In your case the fact that the first repair didn't work is less important than how quickly they tried to fix it each time, I suspect TC would have pulled their fingers out because they know their costs would be piling up. I've no idea how easy it would have been to charter in another plane but bearing in mind that we are at near peak summer and it was World Cup final weekend (a lot of planes were specially chartered to SA) I'd say the odds were not good!

How well were you treated during the delay? Did they mess you about by taking you to the airport when they knew there was no flight?



PostPosted: Jul 12th, '10, 21:45 
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Treatment during the delay was acceptable steve, aside from hit and miss communication, and held in a very hot departure lounge without water, for a difficult period.

To be fair, I felt most sorry for the families with young kiddies during the delay.



PostPosted: Jul 12th, '10, 23:03 
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They had a duty to provide refreshments!

Regarding the 'Extraordinary circumstances' here's a quote from Money Saving Expert and a link to the quote:-

Quote:
The only possible stumbling block occurs within the confusing definition of the kind of delays that are or aren't within the airline's control. Airlines are exempt from paying out compensation if cancellations are due to ‘extraordinary circumstances'. Basically this covers unpreventable occurrences such as extreme weather conditions, security risks and worker strikes.

A Dec '08 test case went some way to making the law clearer by ruling that technical faults, unless they stem from 'events which, by their nature or origin, are not inherent in the normal exercise of the air carrier', DO NOT count as examples of extraordinary circumstances. In the past, airlines have routinely cited them as such to excuse themselves from paying out, so this is great news for consumers.


From Here:-
http://www.moneysavingexpert.com/travel/flight-delays

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PostPosted: Jul 16th, '10, 18:29 
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Quick update on this.

The insurance company have paid out immediately, no issues, which was nice.

Now for the airline.


:)



PostPosted: Jul 17th, '10, 18:51 
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:tup So far.

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PostPosted: Jul 26th, '10, 17:37 
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I'm just wondering whether the same plane is being used for this route...its having a lot of technical faults!

That AYT-EMA flight has had techincal faults causing delays most weeks! We had a 6or7 (lost track of time!) hour delay over thursday night, arrived at AYT at 10pm, finally took off just before 7am.

We were offered food...but only between 1am and 3am, we were not allowed through passport control if we wanted this, and there were not enough seats for the whole flight. We had to check in at 10pm, so that left us 3hours without water (we rejected the offer of food as had no where to sit but the floor - so not expecting compensation or anything). The reps were also extremly unhelpful (as she had been on the transfer to the hotel - she was outrageously rude to the driver).

Like I say, I've been watching this flight for a few weeks, and its delayed most times....and it seems to be a technical fault. Either that or its still a knock on effect, but I doubt it as our delay kept on extending.



PostPosted: Jul 28th, '10, 16:36 
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Mr Farrell

You do have a legitimate case for compensation under the regulation following the Sturgeon judgement from November 2009 which clarified that delays in excess of 3 hours in arriving at your destination were to be treated in the same way as cancellations from a compensation viewpoint.

You will almost certainly have to take the airline to small claims court to recover your compensation.

Operative part of the Sturgeon judgement as follows:

1. Articles 2(l), 5 and 6 of Regulation (EC) 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, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning.

2. Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

3. Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.



PostPosted: Jul 28th, '10, 17:00 
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Useful to see that written down but we still have the basic problem that we don't know what the actual cause of the delay was and therefore whether the airline has a way out. I know that they basically have to prove their innocence but if they could come up with a convincing story without actualy telling lies then the case would collapse. This is the sticking point, with a mole insid ethe company how do you get the truth?



PostPosted: Jul 28th, '10, 17:09 
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Here lies the problem in my opinion. Airline claims that it were exceptional and unforeseen circumstances beyond its control. It provides some evidence.

What then? You will need to sue the airline. How? Through the small claims court procedure. Things then turn round and YOU will need to disprove their evidence as burden of proof lies with YOU.

Mark :)



PostPosted: Jul 29th, '10, 06:24 
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You should remember that it is for the airline to prove their defence not for the claimant to disprove in cases under 261/2004. Of course when the real defence is actually revealed folllowing issue of the claim, the claimant will usually have 3-4 months from that point on to gather legal argument why that particular defence is unsound.

Nor does one need a mole inside an airline or be an expert in technical issues to bring a defence of technical breakdown to its knees, since the court concerns itself with facts and argument more on the legal issues involved rather than any technical issues themselves. If you want some substantiation of that, check out the full verdicts handed down by the ECJ in both Wallentin-Hermann and Sturgeon judgements!



PostPosted: Jul 29th, '10, 13:33 
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But the case in not going to be heard by the ECJ. It will be in the small claims court. Having been there myself (and incidentally won the case) it was made absolutely clear that as the claimant burden of proof wholly lies with me. That included having to counter claim the documents provided by the defendant. Just saying that those documents were not true isn't good enough - it needs to be substantiated. How a layman is going to counter claim any technical documents littered with technical jargon and having to need airline experience I don't know.

A small claims court will take the stance that the defendant is right unless proven differently and therein lies the crux of the matter. No different to a proper court where your innocent until proven different applies.

All I am saying is that it is not going to that easy as some would like to believe to succesfully sue an airline for a what they deem to be a genuine technical fault beyond their control grounding a plane for a period of time.

Mark :)



PostPosted: Jul 29th, '10, 13:48 
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Also worthwhile pointing out that if people do want to go down the route of taking an airline to Court, a decision made by a District Judge doesn't set a precedent (so you can't refer back to existing County Court cases or a similar case that your mate may have won) and the decision can't be appealed unless you have proper legal grounds and the Judge gives you permission to appeal. The appeal process is very costly.

I am not trying to shoot you down in flames here, but I think it is only fair to let the readers know what they let themselves in for when taking an airline to court.

Mark :)



PostPosted: Jul 29th, '10, 14:03 
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Cityboy62 wrote:
Of course when the real defence is actually revealed folllowing issue of the claim, the claimant will usually have 3-4 months from that point on to gather legal argument why that particular defence is unsound.


The period of 3-4 months is rather optimistic. From the directions given by the Judge on my hearing after a court date was set:

Quote:
Each party shall, deliver to every other party and to the Court Office copies of all documents on which he intends to rely at the hearing no later than 2 weeks before the hearing.


A clever airline could sent documents two weeks before the hearing resulting in the claimant not being able to submit further documents.

Mark :)



PostPosted: Jul 29th, '10, 16:03 
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MarkJ HT Mod wrote:
It will be in the small claims court. Having been there myself (and incidentally won the case) it was made absolutely clear that as the claimant burden of proof wholly lies with me. That included having to counter claim the documents provided by the defendant. Just saying that those documents were not true isn't good enough - it needs to be substantiated. How a layman is going to counter claim any technical documents littered with technical jargon and having to need airline experience I don't know.

A small claims court will take the stance that the defendant is right unless proven differently and therein lies the crux of the matter. No different to a proper court where your innocent until proven different applies.


Mark

In cases of claims for compensation under 261/2004 in the small claims track the reverse burden of proof applies. Article 5.3 An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

That means that the claimant does not have to prove their entitlement to compensation but should rightly show that the defence offered by the airline cannot be considered 'extraordinary circumstances' either by reference to existing precedent case law or by demonstrating that the exact meaning of the words in the regulation should be considered in light of their everyday use in the english language

The defendant absolutely has to prove the defence not the claimant. Like you, I too have had my day in court and won and forced BA to try to prove their defence, a point on which they failed. Have a look at Flightmole if you either disbelieve the reverse burden of proof aspect or want to see my case in more detail.

If one is taking a claim via MCOL then my reference to 3-4 months timescale refers to the time between the airline submitting its defence in response to the claim itself after about a month rather than the submission of witness statements and precedent case law referrals being produced 14 days prior to the hearing. The airline cannot change the whole substance to the defence they have submitted at the last minute.



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