Originally Posted by
Hoch
The problem I have with the present legislation (aside from the fact that it was poorly drafted
) is
that it almost assumes a position of strict liability on the part of the airlines. The imposition of strict
liability is rare for a reason. However, I think there is some truth that the reason why this legislation
was created was because passenger rights were weak. In my view, it is right to redress the imbalance.
The ash cloud is a very good example of a well intentioned law being enforced in the wrong way. This
was clearly an example of a natural act with no foreseeability. True, it was not the passengers fault
but it was not the airline's fault either. To this day, I am still amazed that the airlines were forced to
pay out claims. It was the only time I agreed with O'leary, though not because of his reasoning--selling
cheap tickets is a commercial decision that you should not be able to rely upon as a reason for not
providing compensation. If ever there was the archetypical example of
force majeure that first year
law students sleep through, then this was it.
There never can be an exhaustive list of examples, but with better drafting or clarification perhaps at
least consumers and airlines might have a better idea of where the line of liability is drawn.
I don't think personally the Regulation is poorly drafted in the main-quite the contrary.
The imposition of effective strict liability isn't rare in aviation law-quite the reverse-though a law student/already qualified lawyer student would need to to be in their fourth or fifth year of formal legal study (and then sleep through the whole of their year long course rather than just one lecture) to escape notice of that.
Since EC 261/2004 is in some respects modelled on the Warsaw/Montreal model ( as it tells the reader in the preamble) then this should be even less of a surprise to a narcoleptic aviation lawyer.
The model is based more on allocation of risk essentially and the drafters of the original Warsaw Convention knew back in 1929 that it was going to be a difficult and expensive job for the most part to decide who was "at fault" in an aviation accident.
Force majeure is found in commercial contracts because the parties agree to the concept. ( Although I dare say many contracating parties are asleep when they do sign such provisions). Of course those commercial enterprises-if they are awake-will risk manage that exposure through self-insurance and more often with insurance cover of the incurred/imposed risks.
More pertinently in commercial contracts-risk allocation is often divorced from fault-precisely to avoid bickering about fault and blame.
If a passenger requiring a bed and meal for one or several nights was required to await a determination of fault-I suspect he/she would have a troublesome and sleepless night and go hungry.