Thursday, 4 May 2017

A bird or a whole flock? CJEU again on extraordinary circumstances and Regulation 261/04

Today, the Court of Justice had to decide yet another case on extraordinary circumstances and flight disruptions under the Air Passenger Rights regulation. 

This time, the referring court wanted to know whether a bird and an aircraft 'meeting' each other, which gives rise to a delay in order to assess or fix the consequences of the impact, is to be considered as an extraordinary circumstance. The court's case-law so far had sought to clarify that most events, and namely all those which are "inherent in the normal exercise of an air carrier's activity" are excluded. (see inter alia AG opinion para 37)
Prior to the decision, the Advocate General had rejected the airline's counsel's submission that seemingly tried to "systematize" extraordinary circumstances, differentiating events with an "endogenous" cause from those which have an "exogenous" origin. The AG considered this  dichotomy tantamount to distinguishing between events taking place "inside or outside the cabin" and observed that introducing this criterion would replace the legal assessment for a merely factual one incapable of justifying the different consequences arising from the two qualifications. (paras 38-39) 

Thus, according to the AG, a collision with a bird would not have to be considered as extraordinary circumstances, since accidents of this kind are common; the situation would only be different "if the flight of birds arriving in large numbers temporarily prevented an aircraft from taking off or forced it to land at an alternative airport". (para 43)

The Court did not agree with the AG (decision available in French). A collision with a bird can represent extraordinary circumstances, if the air carrier has taken all reasonable measures to avoid the accident. The Court, in this respect, gives weight to a different formulation of the "inherent in the normal exercise" test, which also includes that the event is "beyond the actual control of that carrier on account of its nature or origin" (the test was formulated in this way in Wallentin-Hermann v Alitalia, the shorter version was adopted in van der Lans v KLM, see references in the decision). In this way, the Court does not expressly endorse the distinction rejected by the AG, but rephrases it in line with its own precedents.

Accidents involving birds are evidently beyond the carrier's control, but this finding only exhonerates the carrier if the latter can prove that all reasonable measures have been taken and the disruption could still not be avoided. These "reasonable measures" could be conceived at two stages: as aimed at avoiding the collision, on the one hand, and as aimed at avoiding the flight's long delay on the other. 

As concerns the first, the Courts warns that the carrier should not be burdened, in this respect, with obligations that would normally be for others to discharge. In particular, implementing technologies and other arrangements capable of reducing this kind of risk are usually mainly a task for different operators (eg airports). 

As concerns, avoiding the delay, in this case much of the disruption was apparently caused by the fact that the owner of the aircraft had refused to acknowledge the positive results of an inspection effectuated by local technicians and a technician affiliated with the carrier had to be flied in to carry out a second check. This circumstance, if verified, would stand in the way of characterising the delay as due to extraordinary circumstances. The carrier would, according to the court's established case law, be expected to stand liable to the passengers and then seek recourse against those who have caused the problem (ie, in this case, the aircraft's owner). 

So all in all the claimants in this case may be able to obtain their compensation, but the Court seems to have set the first limitations to its expansive reading of the scope of air carriers liability for delay or cancellation under the Air Passenger Rights regulation. Giving weight to the notion that a disruption not falling under the carrier's control would count as extraordinary circumstances may grant some relief to the industry - although it seems also likely to generate new litigation as carriers will inevitably be tempted to read this exclusion extensively. Thus, even more than in other cases, this is clearly ***to be continued***.   

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