Originally Posted by
Hoch
Indeed, strict liability may not be a rare occurrence in aviation law. However, the imposition of compensation
rights with no clear demarcation creates an unreasonable financial burden on the part of the airlines. Here, I
refer to Article 9 and not 7.
What is more, in both the preamble and Article 5(3) extraordinary circumstances is already laid down whereby
an airline can avoid having to pay compensation if it can show that the cancellation resulted in said event.
Remarkably and specifically "[e]xtraordinary circumstances which could not have been avoided even if all
reasonable measures had been taken [...] Such circumstances may, in particular, occur in cases of [...] mete-
orological conditions incompatible with the operation of the flight concerned." Foreseeability aside, it may be
recalled that the airlines only paid out claims because of rumblings coming out of the European Commission.
This is precisely the sort of situation that should have been tested in court. The fact that there is now to be
a review is evidence that this is not what the drafters intended.
...
Drafting is an art forum that Eurocrates have done well in narcoleptic bliss, external incorporation or otherwise.
H
The argument I think you raise and the test case you seek was addressed already in 2006 in the Ex Parte IATA case by the Grand Chamber of the ECJ-this is what the court ruled at paras 84-89-see below. (Maybe some of the airlines' lawyers borrowed some "Pro Plus" tablets from the drafters?)
(The Commission's rumblings you mention were presumably based upon that ruling).
Whether the existing Regulation is indeed “fair” or should be changed or improved further perhaps is another matter.
The airline industry was put on notice of the significant consequences for carriers' financial burdens. They were aware of this risk burden but apparently chose not to seek external insurance to manage that risk burden-presumably relying upon self-insurance.
The insurance market (now, if not before) offers insurance to meet those risks.
84 It must be stated, first, that the measures prescribed by Articles 5 and 6 of Regulation No 261/2004 are in themselves capable of immediately redressing some of the damage suffered by passengers in the event of cancellation of, or a long delay to, a flight and therefore enable a high level of passenger protection, sought by the regulation, to be ensured.
85 Second, it is not in dispute that the extent of the various measures chosen by the Community legislature varies according to the significance of the damage suffered by the passengers, its significance being assessed by reference either to the length of the delay and the wait for the next flight or to the time taken to inform them of the flight’s cancellation. The criteria thus adopted for determining the passengers’ entitlement to those measures do not therefore appear in any way unrelated to the requirement for proportionality.
86 Third, the standardised and immediate compensatory measures such as the re-routing of passengers, the supply of refreshments, meals or accommodation or the making available of means of communication with third parties are designed to cater for passengers’ immediate needs on the spot, whatever the cause of the flight’s cancellation or delay. Given that these measures vary, as stated in the previous paragraph of this judgment, according to the significance of the damage suffered by the passengers, they likewise do not appear to be manifestly inappropriate merely because carriers cannot rely on the extraordinary circumstances defence.
87 Fourth, it has not been established that if, as advocated by ELFAA, passengers were to take out voluntary insurance to cover the risks inherent in flight delays and cancellations, that would in any event make it possible to remedy the damage suffered by passengers on the spot. Such a measure cannot, therefore, be regarded as being more appropriate to the objective pursued than those chosen by the Community legislature.
88 Fifth, the harmful consequences to which a delay gives rise and which Regulation No 261/2004 seeks to remedy are in no way related to the price paid for a ticket. Therefore, the argument that the measures chosen to alleviate those consequences should have been determined in proportion to the cost of the ticket cannot be upheld.
89 Sixth, while IATA and ELFAA contend that the abovementioned measures could well have significant consequences for carriers’ financial burdens and are not appropriate to the regulation’s secondary objective of reducing the number of flights that are cancelled or subject to a long delay, it must be stated that figures on the frequency of those delays and cancellations have not been given in the proceedings before the Court. Accordingly, the theoretical costs which those measures involve for airlines, as put forward by the parties concerned, do not in any event enable it to be regarded as established that those effects would be out of proportion to the interest in the measures.