Azuremars

Dear all,


I've requested compensation from Finnair for a 20 hour flight delay from Helsinki to Bangkok. I would really appreciate any advice you can give me on my case. I've read quite a bit on this extensive thread http://www.flyertalk.com/forum/finna...pensation.html

I've gathered that Finnair likes playing hardball and Kuluttajariitalautakunta seems to be the main route of pursuit. Is this option available to non-Finland nationals? I was flying first from Manchester and then from Helsinki.

I've been offered a 200€ voucher but I'm not particularly interested in this, as I'm quite certain Finnair owes me a full 600€ - the reason cited below does not constitute "extraordinary circumstances".


Finnair's reply below:

"Thank you for your reply and for your original feedback.

We aim to provide an enjoyable and smooth travel experience and we regret that this was not the case in for your recent journey from Manchester via Helsinki to Bangkok. I apologise for the delay of your Helsinki Bangkok flight on 25th March and for all of the inconvenience this has caused you.

Finnair ensures passengers' safe flight with all possible foreseeable measures that can reasonably be required. Our aircraft's condition is constantly monitored. However, there are defects and circumstances that are beyond our actual control since they cannot be foreseen or prevented due to their nature or origin.

Finnair is investigating the reason for flight delay AY089 from Helsinki to Bangkok 25 Mar 2016. In this case fuel quantity indicator was broken after refueling aircraft for this flight. This aircraft is one of our newest Airbus A350, 5 months old, so this failure has been most probably caused by a mistake in manufacturing or design/engineering process. Flight was operated as soon as replacement aircraft was available.

No standard compensation will be paid in this case.

In these circumstances we offer care to passengers. If you have any hotel, meal or telephone costs despite of our care and you have a possibility to scan your receipt you can send them and your bank details by using e-mail address [email protected]. Please add your case number ******* to the subject field and add a short note and your name in the message. Please keep the original receipts for one year.

In recognition of the difficulties you encountered during your journey and as a settlement in this case we want to offer you a gift voucher of 200 euro for Finnair flights.

The gift voucher is not personal, i.e. you can also give it to someone else or pay for several passengers tickets. The gift voucher is valid for one year. The actual flight date may be within one year from the booking date.

The voucher will be sent to you by e-mail, if you accept the voucher as a settlement in this matter within two (2) weeks.

We look forward to having the opportunity to provide a more pleasurable experience in the future."

deissi

Yes, you can appeal to Kuluttajariitalautakunta provided that you were travelling as a consumer (i.e. not on business). You can use your local European Consumer Centre to help you with the appeal, as it will have to be in Finnish or Swedish.

You are also correct in your assumption that they owe you € 600. Delays due to mechanical problems do not constitute exceptional circumstances, new aircraft or not. Finnair, too, know this, but it is much cheaper for them to put off payment of the standard compensation than to pay outright.

intuition

Are you 100% sure? IIRC, court rulings were more in the
"Delays due to mechanical problems do not automatically constitute exceptional circumstances.". So even mechanical problems can indeed be reason for not paying compensation. What rulings have said is that airlines can't claim "We have done all prescribed maintenance and therefore any mechanical failure is extraordinary". That was Finnairs earlier approach, and that has clearly been debunked.

In fact, by googling I found this draft list of things that are considered "exceptional circumstances" and no 18 on the list is

Lappe

Interesting enough item 26 on the draft list would seem to give free pass to airlines, and also describe the basis for Finnair's earlier stance. I don't think this list is currently 100% valid.

Often1

The wish list is just that. A wish list. It is not current law. Nor is Finnair's interpretation.

OP doesn't say where he's located, but if he's elsewhere in the EU and purchased his ticket elsewhere in the EU, he might try the small claims system in that jurisdiction as it might be faster and less friendly. Moreover, it won't care whether OP is a consumer or not.

deissi

Intuition, as far as I've understood it, the current legal status is that mechanical problems that do not affect an entire fleet type (such as grounding of 787 due to battery problems) cannot constitute exceptional circumstances.

This has been pretty clearly stated by the European Court of Justice (whose precedents must be followed by all member state courts) in van der Lans v KLM.
The entire press release can be found cp150105en.pdf.
And the van der Lans judgment can be found here.

intuition

Kind of interesting.


So what is the verdict? Can a tecnical problem constitute extraordinary circumstances or not?

IANAL, but I read the first quote as ending in a too general conclusion. The second quote says more clearly that there are technical problems and there are technical problems. And it specifically mentions manufacturing defects, which was quoted by Finnair in this case.

NickB

It cannot be entirely ruled out that in highly exceptional circumstances which are, err..., extraordinary, a technical incident could constitute an extraordinary circumstance. The examples the CJEU gave would be such things as malfunction resulting from sabotage by a terrorist, for instance, or a systemic fault on all aircraft of a certain type resulting in a grounding/recall by the manufacturer of all aircraft of the affected type. An 'ordinary' technical incident, even if it is on a new aircraft and even if it is something that would not necessarily have been revealed in the context of scheduled maintenance would not constitute an extraordinary circumstance.

deissi

I agree that the ECJ press release is too general in its conclusion. What they mean is that a technical problem on a single aircraft cannot constitute extraordinary circumstances even if the airline is able to show that the problem could not have been identified beforehand (i.e. duty of care has been followed).

However, the airline may at least in some cases successfully claim that a technical problem constituted exceptional circumstances if the problem is fleet-wide. For example, if Finnair were to notice that the engine cowlings on all (or several) A320s are defective due to a manufacturing error and must be replaced, they would most likely be able to claim that the delay was caused by extraordinary circumstances.

Finnair seems to word their responses for A350 delays in a way that will give them a credible defense if they end up in court/kuluttajariitalautakunta. What they seem to be saying is that the ultimate cause of the delay is not attributable to the aircraft itself. Instead, they seem to argue that the as the aircraft type is new, and there are thus hidden defects related to the aicraft type that could not have been discovered, and the delay was thus caused by an exceptional circumstance.

NickB

The CJEU in the van der Lans v KLM case suggested that they would expect evidence that it is not just one isolated aircraft that is affected but that there is a systemic problem with A350s that potentially affect all aircraft of the type concerned. I do not think that Finnair are anywhere near having established that.

deissi

I agree, NickB. It would be interesting to see what evidence Finnair would provide if push came to shove and they were be forced to go to court. If I was to represent the plaintiff in such a case, I would submit a discovery request for the A350 purchase agreements. I am almost sure that the agreements contain detailed provisions as to what the expected reliability is for a completely new aircraft type and that the A350's reliability early on has been within specs or at least close to within specs.

intuition

Now I've read some of that preliminary ruling, and yes, they do reason that almost no technical faults can be called extra ordinary, since unexpected faults are inherent to the normal operations of an air carrier. "Having unexpected technical faults comes naturally with the territory, therefore they are not extra ordinary".


I also read the preliminary ruling as saying that faults of the manufacturer is not a reason to dismiss a EC261 claim, and air carriers should instead seek compensation from the manufacturer.

A very interesting fact is that one European government did fight to get this ruling dismissed, ie so that Europeans were denied this right.
I've seen on the news other governments saying they want to change the regulation, so I guess if consumers win in court too much, governments will start protecting big corps instead.

Azuremars

Thank you, that's really useful.

That's a handy correction. I'll keep that in mind.

The UK.


As for the rest of the feedback, it's much appreciated. I'm finding the topic to be less than black and white, which makes me very unwilling to go to court. The question is whether or not I take the gamble of contesting the voucher Finnair offered me and pursue a customer protection entity.

NickB

There is no agreement between Member States on this and you would also need an agreement not just among Member States but also with the European Parliament. In fact, the current proposal to amend the Reg has been in a quagmire for a couple of years due to lack of agreement among Member States and it does not look likely that this will progress any time soon.

Azuremars

Has anyone tried negotiating a voucher offer from Finnair? I was thinking along the lines of:
- The reason provided for "extraordinary" circumstances is invalid
- I would like to avoid the hassle of following this up with Kuluttajariitalautakunta if you raised the voucher to X value