A victory for common sense: ECJ rules bird strikes are extraordinary circumstances

The European Court of Justice (ECJ) has ruled in Marcela Pešková & Jiří Peška v Travel Service [04.05.17] that, in the context of EC Regulation 261/2004 (the Regulation), a collision between an aircraft and a bird is an “extraordinary circumstance”, which may exempt the carrier from its obligation to pay compensation.

This is a common sense decision that provides certainty and will be welcomed by airlines, given that bird strikes are events completely outside of their control.

Background

Ms Pešková and Mr Pešká (the claimants) had booked tickets to travel from Burgas (Bulgaria) to Ostrava (Czech Republic) on 10 August 2013 on a flight operated by the Czech carrier Travel Service. The aircraft scheduled to operate the Burgas to Ostrava flight had previously flown three sectors that day.

During the first-sector flight, a technical failure in a valve was found and the repair took one hour and 45 minutes. During the second-sector flight, the aircraft collided with a bird during landing, which meant that the aircraft’s technical condition had to be checked. That check was first carried out by a local company authorised to do so. The owner of the aircraft (Sunwing) insisted that a Travel Service technician travel to Brno from another town in the Czech Republic in order to check that the aircraft was indeed airworthy. Neither check identified any damage jeopardising airworthiness.

As a result of those two unexpected events, the claimants’ flight to Ostrava was delayed by five hours and 20 minutes.

The claimants subsequently brought an action before the Prague 6 District Court claiming that Travel Service was liable to pay an amount in Czech Koruna, equivalent to €250, in accordance with Article 7 of the Regulation.

The Czech court referred several questions to the ECJ, including whether the collision of an aircraft with a bird is an extraordinary circumstance.

However, the ECJ noted that a bird strike — as well as any damage caused by that collision — are not intrinsically linked to the operating system of the aircraft, so that such a collision is not, by its nature or origin, inherent in the normal exercise of the activity of the carrier and is outside its actual control. Accordingly, a bird strike is an extraordinary circumstance.

A carrier is to be released from its obligation to pay compensation if it can prove:

• That the cancellation or delay of three hours or more is caused by an extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken.
• That all measures were taken to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight or its delay by three hours or more.

In this instance, the ECJ considered that a second check of the aircraft was not required to ensure the airworthiness of the aircraft and therefore the resulting delay cannot be justified and is imputable to the carrier.

Lastly, the ECJ held that, where a delay is caused not only by an extraordinary circumstance — but also by another circumstance for which the air carrier is responsible (a technical problem with the aircraft) — the delay caused by the extraordinary circumstance must be deducted from the total length of the delay in arrival of the flight. This is in order to assess whether the part of the delay for which the carrier is responsible is equal to or greater than three hours.

Comment

The first line of defence for bird strikes is the airport managing body and air traffic controllers taking preventative action. The practical impact on defending such claims will be huge. The reasoning in the judgment of the court can be applied to many other factual circumstances in which the triggering event is not inherent in the operation of the aircraft. This could halt the increasingly restrictive interpretation of the extraordinary circumstances defence which has recently been taken by United Kingdom courts.

Surprisingly, the decision goes against the opinion of Advocate General Bot — delivered in July 2016 in relation to this case. Here he had said that Article 5(3) of the Regulation must be interpreted as meaning that a collision between a bird and an aircraft, causing a delay of more than three hours, does not constitute extraordinary circumstances and cannot therefore exempt the operating air carrier from its obligation to pay compensation.

It is also surprising, particularly given the recent ‘consumer friendly’ approach taken by the ECJ over the last few years generally restricting the scope of extraordinary circumstances.

One last point of key practical importance in this decision is that delay caused by the extraordinary circumstance must be deducted from total delay in arrival.

There may be evidential difficulties to clearly apportion between delay caused by the extraordinary circumstance and delay for which the carrier is responsible.