The Law Office of JM Donnelly

Pešková v Travel Service AS

• Introduction

• Facts

• Ruling

• Conclusion              

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Introduction
EC Regulation 261/2004 establishes common rules on compensation and assistance to passengers in the event of (i) denied boarding, (ii) cancellation of flight, or (iii) long delay of flight.

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An airline may defend itself against a claim for compensation under Regulation 261 where it can demonstrate that the delay or cancellation was caused by extraordinary circumstances which could not have been avoided even if reasonable measures had been taken. The term 'extraordinary circumstances' is not defined by Regulation 261; however, judicial exegesis of the term has established a number of scenarios where the delay or cancellation will be deemed to have been caused by something out of the ordinary. Examples include 

• Acts of terrorism or sabotage

• Security risks

• Meteorological conditions

• Political instability

• Unexpected flight safety shortcomings

• Certain types of industrial action affecting the operation the air carrier.

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In Pešková v. Travel Service AS (Pešková), the ECJ considered whether a bird strike would constitute extraordinary circumstances thereby relieving the air carrier of the obligation to compensate passengers for the delay caused to a flight from such a strike.

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Facts

The applicants in the main proceedings, Marcela Pešková and Jiři Peškain, had booked a flight from Burgas (Bulgaria) to Ostrava (Czech Republic) with Travel Service. That flight was performed on 10 August 2013, but, due to unforeseen complications, it arrived late by 5 hours and 20 minutes. The flight had formed part of the following scheduled circuit: Prague — Burgas — Brno (Czech Republic) — Burgas — Ostrava. During the flight from Prague to Burgas, a technical failure in a valve was found. Its repair took 1 hour and 45 minutes. During the landing of the flight from Burgas to Brno, the aircraft collided with a bird and so the aircraft was subject to checks, although no damage was found. Nonetheless, a Travel Service technician was taken by private aircraft from Slaný (Czech Republic) to Brno to put the aircraft back in operation. He was told by the aircraft’s crew that the checks had already been performed by an authorised firm but its authorisation to carry out the checks was not accepted by Sunwing, the owner of the aircraft. Travel Service once again checked the point of impact, which had earlier been cleaned, and found no traces on the engines or other parts of the aircraft. The aircraft then flew from Brno to Burgas, and then from Burgas to Ostrava, the flight taken by the applicants.

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Ruling

The court considered the pivotal concept of 'extraordinary circumstances'. According to the court, events may be classified as extraordinary circumstances if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control.  Drawing on the Court’s earlier case-law on the issue, the court formulated the following propositions:

• The premature failure of certain parts of an aircraft does not constitute extraordinary circumstances, as such a breakdown remains intrinsically linked to the operating system of the aircraft. That unexpected event is not outside the actual control of the air carrier, as it is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business.

• A collision between an aircraft and a bird as well as any damage caused by that collision, as they 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 its actual control. Accordingly, that collision must be classified as 'extraordinary circumstances'.

• It is irrelevant whether the collision actually caused damage to the aircraft concerned as the objective of ensuring a high level of protection for air passengers means that the air carrier must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flight over safety.

• There is an onus on an air carrier relying on extraordinary circumstances to establish that such circumstances could not, on any view, have been avoided by any measures appropriate to the situation, that is to say, measures meeting conditions which are technically and economically viable for the air carrier. The air carrier must, in fact, establish that, even it it 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, without making intolerable sacrifices, to prevent the extraordinary circumstances with which it was confronted from leading to cancellation or a delay of the flight equal to or exceeding three hours.

• 'Reasonable measures' which an air carrier must take in order to prevent a bird attack include control measures preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by the air carrier, those measures do not require it to make intolerable sacrifices, and the carrier actually took those measures. However, although the air carrier may be required to take certain preventative measures in order to reduce or even prevent the risks of any collisions with birds, it is not responsible for the failure of other entities (such as, inter alia, airport managers or the competent air traffic controllers) to fulfil their obligations.

• In the event of a delay to a flight equal to or exceeding three hours, caused not only by extraordinary circumstances which could not have been avoided by measures appropriate to the situation and which was subject to all reasonable measures by the air carrier to avoid the consequences thereof, but also by other circumstances not in that category, the delay caused by the first event 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 of the flight must be paid.

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In the case before the court, it was held that the cancellation or delay of the flight was not due to extraordinary circumstances as the cancellation or delay was the result by the use by the air carrier of an expert of its choice to carry out fresh safety checks following the bird attack after those checks had already been carried out by an expert authorised under the applicable rules.

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Conclusion

The decision brings clarity to the meaning of the term ‘extraordinary circumstances’, enunciating a new principle of law distinguishing events which are triggered by inherent or underlying factors from those caused by external or extraneous  forces. The precise dividing line between what is inherent and what is extraneous is necessarily enshrouded by a penumbra of uncertainty. The manner in which this principle will apply to novel and evolving fact patterns will inevitably, in the course of the adversarial process, result in the drawing and maintaining of fine distinctions which will bring even further clarity to the evolving law on this issue.

 

The decision is a surprising reversal of the pro-consumer approach taken by the ECJ in earlier court decisions and departs from the opinion advanced by the Advocate General Bot to the effect that bird strikes do not constitute extraordinary events.  Given the frequency of bird attacks, the decision is likely to save the aviation industry millions of Euro in claims for delays.  When faced with a claim for delay arising from bird attacks an airline has a number of defences. 

• failure of the .airport manager or the air traffic control to take adequate preventive measures to forestall a bird atack

• reliance on the principle established in this case.

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