French Supreme Court enshrines new extraordinary circumstance - is this indicative of a softer approach to claims against airlines?

Cass.1st.Civ., 12 September 2018, No.17-11361

Date published





The Cour de cassation (French Supreme Court) recently held that the air carrier is exempted from paying compensation under Regulation EC261/2004 (the Regulation), where the aircraft has been struck by lightning, setting it apart from the English interpretation of this event.


The claimants appealed before the Cour de cassation against the first instance dismissal of their claim for compensation pursuant to the Regulation. Their flight from Bordeaux to Nice was cancelled and they arrived at their final destination with more than five hours delay.

The aircraft in which the claimants were supposed to board was struck by lightning while parked at Bordeaux-Mérignac airport. The aircraft went through several safety procedures and was declared heavily damaged. The airline had to bring another aircraft from London for the passengers.

The issue at stake was whether the lightning which struck the aircraft on the ground could be qualified as an ‘extraordinary circumstance’. Even though Recital 14 of the Regulation expressly states that weather conditions incompatible with the performance of the flight are extraordinary circumstances, the Court of Justice of the European Union (CJEU) has made it clear that the concept of extraordinary circumstances, in so far as it justifies derogations from the primary objective of guaranteeing a high level of protection for passengers, should be interpreted strictly (Wallentin-Hermann v Alitalia [2008]).

Legal arguments

The claimants asserted that the air carrier failed to show that the delay was due to extraordinary circumstances and that it did not provide any evidence that it took all necessary measures to avoid the delay.

The court rejected this argument and ruled that lightning strikes amount to extraordinary circumstances, which excuse the air carrier from paying flight delay compensation, if the carrier can prove that the delay or cancellation could not be avoided despite all reasonable measures taken.

The court analysed the facts very precisely and noted that after the aircraft was struck by lightning, it had been thoroughly examined by aeronautical engineers in accordance with civil aviation rules. The engineers declared that the aircraft no longer met the optimal safety conditions. Consequently, the air carrier reasonably decided to send a replacement aircraft to Bordeaux-Mérignac (the departure airport) from its main base in London, which required numerous formalities and authorizations. Re-routing the passengers to another airline's flight would not have allowed the passengers to arrive sooner.

Accordingly, the court inferred that the air carrier had fulfilled its obligations under the Regulation - as interpreted by the CJEU - namely that it had organised its resources in a timely manner. The court therefore considered that the air carrier could not have avoided these extraordinary circumstances, which led to the cancellation of the flight.


Extraordinary circumstances are assessed very strictly by French courts. In the decision at hand, the Cour de cassation was very much guided by the importance of the passengers’ safety. It also carried out a precise and rigorous analysis of the circumstances surrounding the cancellation of the flight, by verifying that the air carrier had taken all necessary measures but could not prevent the passengers from arriving late at their destination.

This view is consistent with a recent English decision which held that delays as a result of an air traffic management decision were ‘extraordinary circumstances’ (Blanche v EasyJet [06.02.19]). As with the French court’s decision, the health and safety of the passengers was key to the court’s findings.

However, it is interesting to note that only three years ago, the English courts took a different view on the issue of lightning strikes. On 14 January 2016, Luton County Court ruled that lightning strikes were not extraordinary circumstances and were inherent to the normal exercise of an air carrier activity (Evans v Monarch Airlines [2016]).

This is consistent with earlier Cour de cassation decisions which have been considered as severe towards airlines. For instance, in a 2015 ruling, it ordered the air carrier to pay compensation even though the flight had been cancelled because of unexpected snow events due to the airline failing to prove that it had taken all reasonable measures to avoid the cancellation suffered by passengers.

The recent French ruling is, therefore, a welcome decision, recognizing that air carriers should not be sanctioned for putting passenger safety ahead of punctuality. We hope that this is indicative of a softening of approach to claims against air carriers in courts across Europe.

Read other items in London Market Brief - April 2019

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