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Extraordinary circumstances – and when passengers are not eligible for compensation

Even though flight delays, overbookings etc. are generally the fault of the airlines, there are a few circumstances in which airlines are not required to pay compensation. Precisely what those circumstances are, you will find here!

Extraordinary circumstances – and when passengers are not eligible for compensation

Even though flight delays, overbookings etc. are generally the fault of the airlines, there are a few circumstances in which airlines are not required to pay compensation. EU regulation 261/2004 stipulates that the airline does not have to pay compensation for delays or cancellations, if such circumstances are due to extraordinary circumstances over which they have no influence “although the affected airline has taken all reasonable steps to prevent delays or cancellations”. Such extraordinary circumstances include weather conditions that make it impossible to conduct the flight, political instability, safety risks, strike action at the airport as well as unexpected safety deficiencies on the aircraft. The currently applicable passenger rights regulations do not contain, however, a precise definition of what an extraordinary circumstance is.
In general, the aforementioned “extraordinary circumstances” lie beyond the sphere of influence of the airline or of aviation in general, are indeed “out of the ordinary” and may thus be deemed instances of “force majeure”.

It is precisely these extraordinary circumstances which are often used by airlines as evasions to avoid paying compensation that is warranted. For a passenger, however, it is frequently very difficult to prove the contrary, which is why the experience of EUROFLYREFUND, as well as the extensive databases of weather and strike data to which we have access, is often necessary in order to successfully assert compensation claims.

In practice, it has been shown that the law as formulated is subject to interpretation and that, in a suit which is brought against the airline, the case might well proceed through several courts before it is finally adjudicated. We at EUROFLYREFUND assume all risks with respect to costs, so that our clients can await the compensation they are due without concern and, in the event of a verdict in favor of the airlines, that is to say, a verdict which denies compensation to the airline passenger, we at EUROFLYREFUND will assume the full costs – in other words, a win-win scenario for passengers!

Even if a flight delay is due to circumstances for which you cannot receive compensation, the airline is nonetheless required to provide you with the following support services for the duration of the waiting period:

Reversal of the Burden of Proof

Normally, the law requires that the person demanding compensation provide evidence that s/he is due such compensation. In the case of airline travel, however, this is virtually impossible since this would mean that passengers affected by a delay, flight cancellation etc. would have to prove why this came about. Because of this, passenger rights regulations have reversed the burden of proof in favor of the passenger and to the disadvantage of the airline. This means, in other words, that with respect to any case at hand, the airline must provide concrete evidence that there indeed existed an extraordinary circumstance and that the delay, cancellation etc. could not be prevented. Passengers only have to prove that they were affected by the impairment to the flight.

THESE ARE NOT EXTRAORDINARY CIRCUMSTANCES

No mechanic on duty
When an urgent repair on the aircraft is required in order to make a flight possible, but there is no mechanic on location who can make the repair, this does not represent an extraordinary circumstance. The airline must ensure that it has done everything within its influence to avoid such a situation that might lead to a flight either leaving after a significant delay or potentially even being canceled. If a qualified mechanic is not available at the location where an aircraft requiring repairs is standing, this is not an “extraordinary circumstance” (AG Rüsselsheim, Urt. v. 11.06.2013 - 3 C 387/10-35, RRa 2010, 290).

Activation of an escape slide by the passenger
Only if the passenger activates the emergency slide can the airline claim this is an extraordinary circumstance that discharges them from having to pay compensation for delays or flight cancellations. That said, the airline must show that it has done everything in its power to ensure that doesn’t happen. If a member of the crew has activated the emergency slide, when opening the doors, for example, such an eventuality is not deemed to be an extraordinary circumstance and the airline must pay compensation for any flight delays which might result.

Toxic Fumes and Smoke in The Cabin
If toxic smoke or steam penetrates the cabin, the airline may not invoke this as an extraordinary circumstance and is required to pay compensation in the event the flight is canceled or delayed for more than 3 hours.

Deficient Maintenance Work

If a flight is delayed due to the need for urgent repairs to the aircraft, the airline bears responsibility because such maintenance work should have been foreseen by them and thus falls within their sphere of influence. The fact that the airline might have followed their maintenance plan to the letter does not indemnify the airline from paying compensation. This also applies, in particular, to parts of the aircraft that are not subject to statutorily required maintenance.

Malfunction of the aircraft’s weather radar, hydraulics, elevator controls, fuel system, fuel pump or toilet
If the aircraft’s weather radar malfunctions and results in the delay or cancellation of the flight, this technical defect does not represent an extraordinary circumstance as defined in passenger rights regulation 261/2004. This also applies to leaks of hydraulic fluid, defective elevator controls, malfunctioning elevator displays, leaks in the fuel system or a defective fuel pump. Even a stopped-up toilet on the aircraft does not constitute an extraordinary circumstance, since all of these technical problems are within the field of influence of the airline company and the company must ensure both a functional aircraft and a punctual flight thereof. In all of these circumstances, the airline must pay compensation in the event of major flight delays or cancellations.

The Aircraft Is Losing Hydraulic Oil
The hydraulics system of an aircraft is complicated and essential for safe flight. If a fault is discovered in the system prior to departure, the aircraft cannot take off and delays will result – however, a flawlessly functioning hydraulics system of the aircraft lies within the sphere of influence of the airline and does not indemnify the airline from paying compensation in the event of major delays. The same principle also applies to faults in the electronic system or blocked kerosene filters caused by impurities in the kerosene. If a third party is responsible for this, having supplied contaminated kerosene, for example, a court has rejected this as an extraordinary circumstance. As a consequence, the airline is required to pay compensation for a major flight delay or the cancellation of a flight.

Rare Technical Defects

Even though technical defects occur only rarely, these do not constitute extraordinary circumstances as defined by airline passenger rights. Even if all maintenance work was performed according to regulation, in the event of a major delay or cancellation of a flight the airline passenger does have the right to a compensation payment of as much as €600.

Compliance with Minimum Requirements for Maintenance Work
In the event of a major delay or cancellation of a flight, an airline may not invoke the fact that they complied with minimum maintenance standards on the aircraft and thus do not have to pay compensation to the airline passengers. If major flight delays or cancellations result from deficient maintenance, the airline must pay compensation, of course.

Malfunction of a Speed Indicator

A very curious case underscored the responsibility of airlines with respect to the technically flawless condition of their aircraft and thus their obligation to pay compensation to passengers as the result of a flight delay or flight cancellation. A bee in a pitot tube resulted in the malfunction of the speed indicator and was claimed as an extraordinary circumstance which released the airline from having to pay compensation. It was the court’s opinion that the airline should have covered the tube while the aircraft was stationary and it therefore required the airline to pay compensation.

Flight rebooked even though boarding was still in progress

if boarding for a connecting flight is still possible, yet the airline denies boarding and requires the passenger to rebook, this denial of boarding predicates a compensation payment if the action results in a major delay for the passenger. From a legal perspective, this constitutes denial of boarding in spite of the passenger holding a valid ticket, requiring that the airline passenger receive a compensation payment according to EU regulation 261/2004.

A presumed strike is not an extraordinary circumstance
If an airline fears a strike and therefore denies boarding or cancels the flight in anticipation of this strike, those passengers who are affected by the cancellation are eligible for compensation. The airline cannot invoke the mere suspicion of a strike as an extraordinary circumstance in order to avoid paying compensation for flight delays or cancellations.

Absence of crew members
The absence of a crew member is often cited as an excuse by airlines for flight delays. Indeed, at least one flight attendant must be on board for every 50 passengers. However, if a flight attendant should get sick and this results in the cancellation of a flight, the airline must still pay compensation since it falls within the operational sphere of the airline itself whenever one of their employees falls sick and is unable to perform their duties. In other words, this is not an example of “force majeure”, but rather something for which the airline must take appropriate precautions so that cancellations or major delays of flights do not result.

Damage caused while rolling backwards

One unusual circumstance was claimed by an airline as a reason to avoid paying compensation for a flight cancellation. The aircraft in question had begun to roll backwards and was subsequently damaged. Nonetheless, the airline was required to pay damages for the flight cancellation since it was the airline’s responsibility to ensure that the aircraft did not roll uncontrolled.

EXAMPLES OF EXTRAORDINARY CIRCUMSTANCES

Loose objects on the runway
If loose objects on the runway result in a technical problem, this does not constitute a responsibility of the airline and thus it is not obliged to pay compensation in the event of flight delays or cancellations.

Unusual operational occurrences

Unexpected safety defects only then become an extraordinary circumstance if they are regarded as unusual operational occurrences. If, however, they are a usual operational occurrence, then the airline must pay.

Production defect of the aircraft manufacturer

If there exists a production defect of the aircraft manufacturer, the airline is only not required to pay compensation if this defect affects several aircraft of said manufacturer.

Malfunction of airport facilities

If one or more of the facilities at the airport malfunction, with this resulting in flight delays or cancellations, the airline is only then not obligated to pay compensation to passengers if several aircraft are affected.

Intoxicated passengers do not have a right to transportation
If, as a passenger, you have a valid ticket and have appeared punctually at the check-in counter, in other words at least 45 minutes prior to the flight, you have a right to compensation if you have been denied boarding because of an overbooked flight. The only exception to this are those passengers who are intoxicated and thus represent a danger to the safety of other passengers. Inappropriate behavior also releases the airline from its obligation to provide transportation, and thus also from the requirement to pay compensation.

Doors that have already closed do not have to be reopened for late passengers
if a passenger arrives at the gate when the doors of the aircraft have already been closed, the airline is not required to reopen the doors since this would result in a substantial disruption to air traffic. In such an instance, an airline passenger also does not have a right to compensation due to denial of boarding.

Insect in the pitot tube – when the airline is not required to pay compensation
A foreign object in a pitot tube prohibits speed measurement and thus represents a safety hazard. If this results in a major flight delay or a flight cancellation, the airline must pay compensation to the passengers of the flight affected. Only if the airline can provide evidence that it did everything within its power to avoid such damage, is it released from its obligation to pay compensation.

Bird strikes – the airline doesn’t always have to pay compensation
Bird strikes are a classic problem in aviation. If a bird strike results in the delay or cancelation of a subsequent flight due to ongoing necessary repairs, up to now there has been no unambiguous legal precedent to govern such a scenario. Because bird strikes do occur from time to time, however, this does not necessarily constitute an extraordinary circumstance, in which case compensation may be paid to the affected passengers.

Strikes are extraordinary, regardless of whether they are internal or external
if airline personnel are involved in a strike, this represents an extraordinary circumstance and indemnifies the airline from having to pay compensation to affected passengers in the event of flight delays or flight cancellations.

Snow on the runway is extraordinary – airline does not have to pay compensation
If heavy snowfall causes delays of more than 3 hours or flight cancellations, because the operator of the airport is unable to clear the airport of excess snow in a timely fashion, the reason for the flight delay does not lie within the sphere of influence of the airline and thus the airline does not have to pay compensation in accordance with EU regulation 261/2004.

Lack of deicing agent: whether or not the airline must pay compensation is disputed
If a flight is delayed or canceled because the aircraft cannot take off on time due to a lack of deicing fluid, it is a matter of debate whether or not the airline is at fault and therefore uncertain whether the passenger has a claim for compensation.

Medical emergencies not always an extraordinary circumstance

If a medical emergency occurs on the preceding flight, this is generally regarded as an extraordinary circumstance and the airline does not have to pay compensation due to a flight delay or flight cancellation. However, the airline is only released from its obligation to pay compensation if there was not sufficient time to reschedule flights.

Prohibition of night flights or denied landing permission – compensation payments under dispute

If a flight is affected by non-customary night-flight prohibition or denied nighttime landing permission, thus resulting in a flight delay, in general this will constitute an extraordinary circumstance and the airline is not obliged to pay compensation. If, however, the night landing permission is denied because the aircraft had taken off 3 hours too late, it is reasonable to assume that the airline was aware of this circumstance and it should have rescheduled the flight to avoid the delay, and it must therefore pay compensation for said delay. A detailed examination of the circumstances for the flight delay would be required.

Accidents at the airport may be extraordinary circumstances
If an accident occurs between an aircraft at the airport and another vehicle or piece of equipment at that airport, and this results in a major flight delay or even the cancellation of the flight, in all probability the airline will not be held responsible and will therefore not have to pay compensation.

Airline does not have to pay compensation due to lightning strike
A lightning strike represents serious danger to the safety of an airplane and may constitute an extraordinary circumstance so that, in the event of a delay caused by an emergency landing, for example, the airline would not have to pay. However, if the aircraft had been struck by lightning during a prior flight and the airline had ample time to make the aircraft functional again, to charter a different aircraft, or if the airline cannot demonstrate that it did everything possible to avoid the delay, the situation look better for passengers with regards to compensation.

Fog as an acceptable reason, only for aircraft that are up-to-date
Heavy fog at the airport may constitute an extraordinary circumstance leading to the airline not having to pay passengers compensation, even if it does result in major flight delays or even flight cancellation. If, however, the reason an aircraft cannot land is because it is badly equipped, the legal situation is somewhat different.

Strong wind at takeoff or landing restricts compensation
If the wind at the originating airport is so strong that the manufacturer of the aircraft prohibits its taking off under such wind conditions, the airline does not have to pay compensation to passengers, even if this results in major delays or even cancellation of the flight. However, the airline must provide detailed information and documentation to show that the manufacturer does not permit takeoff in such wind conditions.

Severe weather precludes compensation for flight delays
Extraordinarily heavy rain or snowfall at the originating airport may constitute an extraordinary circumstance under which the airline, despite a delay or cancellation of the flight, does not have to pay compensation to passengers. One indication that this is indeed an extraordinary circumstance would be the fact that other airlines are also unable to take off.

Closed airspace also precludes compensation

if the airspace over the originating or destination airport is closed, this generally represents an extraordinary circumstance. If this then results in a flight delay or cancellation of the flight, in the face of passenger claims for compensation the airline may invoke closure of the airspace and thus avoid payment.
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