Airlines win a rare victory as EU court rules that a bird strike is an ‘extraordinary circumstance’

What do the courts rule as ‘extraordinary circumstances’ in claims for flight delay compensation? Well, that’s an interesting question at the best of times, but it’s a question that has been made even more interesting after the latest judgement by the Court of Justice of the European Union.

In the latest judgement, the Court of Justice ruled today that a collision between an aircraft and a bird is classed as an ‘extraordinary circumstance’, thereby exempting an air carrier from any obligation to pay compensation in the event that a flight is delayed significantly. Airlines may well have greeted the judgement with a smile, after all it was a rare victory for the industry: however, the same could not be said for lawyers pursuing claims for flight delays. They claim the judgment could scupper thousands of potential claims and cost millions.

The case before the Court of Justice was brought by two passengers who had travelled in 2013 from Burgas in Bulgaria to Ostrava in the Czech Republic, via Brno. Their flight had already been delayed because of a technical fault, then was further delayed when the aircraft required checks following a bird strike while landing at Brno. In total, the flight was delayed by five hours and 20 minutes. The passengers brought a claim for around €250 each under EU 216/2004 and said they had the right to compensation under EU regulations as the flight was delayed more than three hours.

The Czech court sent the case to the EU Court of Justice to test whether collision with a bird was classified as an extraordinary circumstance and could not have been avoided, even if all reasonable measures had been taken. The Court of Justice ruled that the meaning of the ‘extraordinary circumstances’ regulation was to capture events outside the carrier’s control: it noted that whilst airlines may be required to take certain measures to reduce or prevent the risks of collisions with birds, it was not responsible for the failure of other entities such as airport managers or air traffic controllers:

‘A collision between an aircraft and a bird, as well as any damage caused by that collision, are not intrinsically linked to the operating system of the aircraft, with the result that such a collision is not by its nature or origin inherent in the normal exercise of the activity of the air carrier,’ it said.

As a consequence, the Court ruled the air carrier was released from its obligation to pay compensation and deducted the pay-out based on that exemption. However, some damages were still payable based on the original delay.

Why is this decision causing such a stir amongst lawyers acting for holidaymakers claiming flight delay compensation? Well, the simple answer is because it could have massive financial repercussions for the sector. North West firm, Bott & Co, which has been at the forefront of the growing flight delay claim industry and which had put 1,500 claims on hold pending the outcome of the case, said that the ruling that bird strikes were not extraordinary could result in £11m not being paid to UK passengers. In a statement, Bott & Co flight delay lawyer, Kevin Clarke, said:

‘This is not the decision we were hoping for, but nonetheless it is clarity from the highest court in Europe who have found that bird strikes are an extraordinary circumstance.’

‘We are particularly disappointed because we have a track record of winning bird strike cases in the UK, even to appeal level. We’ll be taking a long look at this judgment to work out the best course of action for our clients and all UK passengers,’ he added.

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