Airline not liable for delays caused by birdstrike

12th May 2017 by admin

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The recent case of Marcela Pešková & Jiří Peška v Travel Service A.S. (Case C‑315/15) in the European Court of Justice has caught the headlines because it held that an airline can plead that a bird strike that causes a delay is an ‘extraordinary circumstance’ and therefore the airline is not liable. The basis of this decision can be found in para. 24 of the judgment:

“In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since 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’ within the meaning of Article 5(3) of Regulation No 261/2004.”

On the face of it this is good news for airlines and they are clearly delighted by decision but going beyond the headlines the decision is a little more ambiguous. This is because Article 5(3) on extraordinary circumstances imposes a two part test. First, is the event causing the delay extraordinary? Secondly, could the delay have been avoided if reasonable measures had been taken? On the facts of the case there were multiple causes of the delay. First there was a technical problem unrelated to any birdstrike, secondly the aircraft had to be checked for damage caused by a birdstrike, and thirdly there was a further delay caused when the airline refused to accept the decision on the first check and insisted on their own expert undertaking an examination even though the first expert was fully accredited.

In these circumstances the court held that the second check was unnecessary and therefore that part of the delay could not be attributed to the birdstrike. The decision of the court was that the length of delay caused by the extraordinary circumstances should be deducted from the overall length of the delay, in this case five hours 20 minutes, and if the length of the delay was then still in excess of three hours then compensation would be payable.

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