In case C-315/15 - Marcela Pešková, Jirí Peška -v- Travel Service A.S., the CJEU was asked, by the Czech courts, to determine whether, for the purposes of Regulation 261/2004 (“the Regulation”), damaged suffered by planes as a result of collisions with birds resulting in delays/cancellations can be treated as ‘extraordinary circumstances’. Advocate General Bot published his opinion last week but it is not available in English. The 4KBW Aviation Team has had it translated it in to English (available here). It is highly likely the court will follow the Opinion which is emphatic in its findings.
The Regulation aims to afford protection to air passengers by providing a mechanism under which passengers whose flights are delayed or cancelled, or if they are denied boarding to a flight, to or from a Member State are to be compensated. The Regulation sets out the law relating to instances for cancellations, and the Court has added to this by analogy, that delays of over 3 hours are also to be afforded the same protection.
It is a defence to claims for delay and cancellation, but not claims for denied boarding, if the airline can demonstrate that he delay/cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The airline must, therefore, prove a causative link between the event in question and the delay/cancellation for which compensation is sought, and that this delay/cancellation could not have been avoided, even if the airline did all that it reasonably could to avoid it. Note that the airline does not have to demonstrate the event could not have been avoided, but that the delay/cancellation could not have been avoided.
The court has made this a high threshold for the airlines to pass. The airline must meet two cumulative conditions to prove that an event is an extraordinary circumstance:
That the event is not inherent in the normal exercise of the activity of the air carrier concerned, and
That the event is beyond the actual control of that carrier on account of the event’s nature or origin.
As a result, the court has held that acts of terrorism, closures of airports, and exceptionally bad weather conditions can amount to extraordinary circumstances, but that certain technical defects or collisions with passenger stairways will not be extraordinary circumstances. Each case is determined on its own facts so for example, snow would not be extraordinary in Munich in winter, but likely would be in Madrid in summer.
If a technical effect comes to light during routine maintenance or as a result of a failure to maintain the aircraft, it will not be regarded as an extraordinary circumstance. Even an unexpected defect which is not attributable to poor maintenance and which is not detected during routine maintenance will not be considered an extraordinary circumstance if it is inherent in the normal activity on the air carrier. No parts will last forever and it is a known risk that parts malfunction or break. On the other hand, a manufacturing defect identified by the manufacturer or local authority will be extraordinary. Equally, the court has held that damage caused to planes through collision with mobile stairs will not be extraordinary as it is an inherent risk of using such stairs as a means of embarking and disembarking passengers on and off the plane.
It is in this context which the Czech court referred 5 questions to the court. The first asked the court if such a collision was an extraordinary circumstance, questions 2, 3 and 4 asked about the various measures taken to avoid and mitigate such collisions, and question 5 dealt with whether compensation would be payable. Advocate General Bot, in answering the first question by holding that it was not an extraordinary, did not need to go on to consider questions 2, 3 and 4, and answered question 5 by simply saying that compensation would be payable in the normal way.
His reasoning is that collisions with birds are an inherent risk of flying:
“An American study on animal peril from 2011 shows that 99,441 collisions between a plane and an animal had been reported since 1990. In 97.4% of the cases it was a collision with a bird.”
The aircraft manufacturers account for this in the development of their engines and aircraft. Advocate General Bot even makes specific reference to the “chicken cannon” used to test planes. Airports also take account of the risk and ensure that birds are deterred from runways:
“in most of the airports, different methods are used to scare away birds and other animals, such as rockets, lasers or imitations of animal distress cries.”
It is known that the risk is greatest when birds are migrating. Pilots are required to report when there are birds on or near the runways. This is a risk known to the airlines and it is not ordinarily extraordinary. Further, to uphold the analysis put forward by the airline, that bird collisions are beyond the control of the airlines and cannot be predicted, would be too narrow an interpretation that would not provide sufficient protection for passengers.
He did acknowledge that “a situation in which a flock of birds arrives near the plane that prevents the plane from flying could be comparable” to severe meteorological conditions qualifying as extraordinary circumstances.
His approach, therefore is to suggest that, ordinarily, collisions with birds will not be deemed extraordinary, it is only if there is something extraordinary about a specific collision that the defence of extraordinary circumstances can apply. This is a further hurdle for the airlines to overcome when faced with Regulation 261 claims.
The Court is likely to follow Advocate General Bot’s opinion as the Court has stressed in previous cases that the protection of consumers is important, and events within the normal practice of airlines will not be treated as extraordinary. Bird strikes are predictable, are anticipated by airlines, airports and manufacturers. Whilst beyond the airlines’ control, they are a known hazard of flying. Indeed, it is part of routine safety checks and maintenance, and testing of flights to anticipate, minimise and repair damaged caused through collisions with birds.
Whilst the court seeks to protect passengers by awarding compensation for delay, passengers are also to be protected by ensuring the planes on which they fly are safe. If any maintenance and repair work following a collision with a bird causes a delay of over three hours, or a cancellation, the passengers are to be compensated.