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The 2017 BA compensation thread: Your guide to Regulation EC261/2004

The 2017 BA compensation thread: Your guide to Regulation EC261/2004

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Old Dec 1, 17, 10:09 am
  #1726  
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Originally Posted by Tim_T View Post
Received notification today from CEDR.
Not unexpectedly, I lost at CEDR for flight cancellation due to MF cabin crew strike.
Reasons given are below. I don't agree with it, especially point 10 which is not true. I also don't understand points 9 and 12, why cancelling 4 days in advance is reasonable grounds for denying EC261 since there is no requirement for this point in the regs other than within 2 weeks. I believe CEDR has ignored most of my evidence and sided strongly with BA. I'm not surprised to be honest.

I hope this helps others.
Tim_T
Thanks for posting the details, which I'm sure will be of interest to others affected. Now I agree that the judgement dragged in all sorts of context which aren't strictly relevant to your case, so items 9 and 12, however I suspect any court based process would probably do the same. Point 10 looks accurate to me, though not the full story, and it would have been very difficult to get Qatar to run longhaul services. Maybe I've missed something there. It's not so unusual that the outcome looks suspiciously like a BA version of events: if the CEDR officer is handling several customer complaints - all worded differently - and a near identically worded BA submission, then it's easier to wording which supports BA's position.

The key problem with your case was that it was a Mixed Fleet route, as I understand it, so BA can say "our staff were on strike", and then the CEDR judgement looks reasonable. Some other cases relate to routes which are not Mixed Fleet operated, so I suspect that may be different since it would have been more obviously a commercial decision.

You do have the option of going to MCOL, but I wouldn't give it a high chance of success, particularly after the CEDR ruling which will doubtless be brought to the judge's attention and given a heavy weight. I suspect you still have an arguable case, but it would be based on narrowing down the focus to your flight - and no other - and the options open to BA to run that flight as scheduled - could they have done more to avoid the cancellation? But given the re-routing options provided, the fact that strikes are regarded as extraordinary circumstances, and the CEDR judgement, my personal view is that this would be a tough case.
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Old Dec 1, 17, 1:37 pm
  #1727  
 
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Originally Posted by Tim_T View Post
Received notification today from CEDR.
Not unexpectedly, I lost at CEDR for flight cancellation due to MF cabin crew strike.
Reasons given are below. I don't agree with it, especially point 10 which is not true. I also don't understand points 9 and 12, why cancelling 4 days in advance is reasonable grounds for denying EC261 since there is no requirement for this point in the regs other than within 2 weeks. I believe CEDR has ignored most of my evidence and sided strongly with BA. I'm not surprised to be honest.

I hope this helps others.
Tim_T


7. In view of the above, I find that the airline was not directly in control of the industrial action by its Mixed Fleet Cabin Crew nor was the strike action inherent in the normal activity of the airline and qualifies as an extraordinary circumstance.

Decision

● The passenger’s claim does not succeed.
Hi Tim_T,

I believe that the adjudicators decision is based on a number misunderstandings of the regulation. However, there is one very basic error at point 7 (above) on which alone, BA's defence should have been dismissed by the adjudicator.

The adjudicator says that strike action by BA staff is not 'inherent' in the operation of an airline. For 'airline' you could read company or business, any company or business.
In other words strike action by BA's own staff is an external, third party matter for which BA have no responsibility and it is completely outside of their control. In the real world is this realistic? Almost certainly not IMHO.
BA management were actively involved in negotiation with the union, they were actively making alternative arrangements to circumvent and lessen the effects of the problem. Every company, where staff go on strike, do their best to settle the matter, which by it's very nature, makes that action an inherent part of running any business. If it's an inherent part of running a business it cannot be an extraordinary circumstance and compensation should have been paid.

The adjudicator also made a number of other basic mistakes, for example at point 4.

4. I am mindful of the Civil Aviation Authority’s non-binding list of the types of incident that may qualify as extraordinary circumstances inclusive of industrial relations issues. Industrial relations issues are described as strikes that affect the operation of an air carrier. For example strikes by airport staff, ground handlers, or air traffic control. Given that the CAA is the National Enforcement Body (NEB) for Regulation 261, I find it is reasonable to attach weight to its opinions in this matter.

The adjudicator has become confused by the role of the CAA and the role of the European Court of Justice. It's is the ECJ who create the law and the CAA who are responsible for ensuring adherence of that law, on behalf of the British Government.

The none binding NEB list, which is referred to, was dismissed by the Court of Appeal in the Huzar v Jet2.com case who rightly said it carried no legal authority. The adjudicator should also have not attached any weight to this work of fiction.

I could go on, but there is really no point. MCOL is still available to you as is the NWNF route.
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Old Dec 1, 17, 1:41 pm
  #1728  
 
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Originally Posted by corporate-wage-slave View Post
Thanks for posting the details...The key problem with your case was that it was a Mixed Fleet route, as I understand it, so BA can say "our staff were on strike", and then the CEDR judgement looks reasonable. Some other cases relate to routes which are not Mixed Fleet operated, so I suspect that may be different since it would have been more obviously a commercial decision.
Do we know yet if any claims where the cancelled route has been non-MF have succeeded?
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Old Dec 1, 17, 1:59 pm
  #1729  
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Originally Posted by tinkicker View Post
Do we know yet if any claims where the cancelled route has been non-MF have succeeded?
No, but anecdotally I've heard second hand that BA settled some cases going down the MCOL route.
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Old Dec 3, 17, 3:40 am
  #1730  
 
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Just want to ensure I'm understanding correctly. I'm on an AA ticketed, BA only metal AMS-LHR-ORD.

AMS-LHR is delayed due to technical reasons and I have now been put on the later LHR-ORD.

The later flight (297) is due to land 3.50 minutes after the 295 was due to land. 2 questions:

Am I due 50% of €400 or €600?
And do I claim from AA, the original ticketing airline or BA the carrier airline? It was BA who reticketed me on to the later flight if that makes any difference?

thanks
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Old Dec 3, 17, 3:47 am
  #1731  
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Originally Posted by silonic View Post
The later flight (297) is due to land 3.50 minutes after the 295 was due to land. 2 questions:

Am I due 50% of €400 or €600?
And do I claim from AA, the original ticketing airline or BA the carrier airline? It was BA who reticketed me on to the later flight if that makes any difference?
You're probably best off revisiting this after you've got to ORD, because it's the final outcome that matters not the scheduled time of arrival of the replacement flight.

And it's the operating airline that will be responsible for this.
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Old Dec 3, 17, 4:51 am
  #1732  
 
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Originally Posted by Globaliser View Post
You're probably best off revisiting this after you've got to ORD, because it's the final outcome that matters not the scheduled time of arrival of the replacement flight.

And it's the operating airline that will be responsible for this.
That's a valid point, especially as the AMS-LHR is delayed even further. Frustratingly they (the gate personnel) won't allow me to fly on another AMS-LHR with BA as I've checked in luggage and it's already in the hold and unretrievable.....

From the number of people left waiting, looks like a number of hand luggage only passengers have been put onto later flights.

I just wasnt sure if the base amount for >3500 was €400 or €600 as couldn't work out from the 1st page, but that's probably because I've been awake since 4.45am for the originally schedule 7.35am flight....
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Old Dec 3, 17, 7:41 am
  #1733  
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You are ticketed AMS-ORD with a connection at LHR. The only thing that matters is the delay at your final ticketed destination, e.g. ORD and the operating carrier of the flight which causes your delay, e.g. BA.

If your arrival at ORD is 3+ hours, you will be due EUR 300 and if 4+ hours, EUR 600. No way of knowing anything and not worth even thinking about until after your arrival at ORD.
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Old Dec 5, 17, 7:54 am
  #1734  
 
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Dear All,
Just checking if I am insane and what my next step should be. Please let me know what you guys think.

On November 2nd I went with my best friend to Abu Dhabi (Fairmont hotel = great!) to do nothing (drinking).

Routing
Outbound: AMS-LHR-AUH on Nov. 2nd.
Inbound: AUH-LHR-AMS Nov. 6st at 2.05 am.
The AUH-LHR flight was cancelled and rerouted from DXB.

On Friday November 3rd at 3.45 pm I received an email our flight (BA0072) was cancelled. We were put on the 2 pm flight from DXB, also on November 6th.
I Called BA: reason of cancellation was unknown. Only other option was same 2 am flight on November 5th or same flight on November 8th.
Arrived more then 12 hours later in AMS on November 6th.

A week later I filed an expenses claim and a separate EC/261 claim.
Expenses claim was awarded but EC/261 was not. BA is not taking responsibility because of technical failure.

Within 10 days after I filed for both (separately) I received he following reply:

"Dear Sir Rambo,

Thanks for your recent emails about your flight from Abu Dhabi on 06 November in Club World. I know how stressful it can be when your flight’s cancelled, mainly because you have to change all your plans. You certainly don’t expect this to happen when you fly with us and I’m sorry we let you and Mr Chuck Norris down.

I’m afraid however, your compensation claim’s been refused because BA0072 on 06 November 2017 was cancelled because of technical reasons, which wasn’t caused by British Airways and prevented the aircraft operating as scheduled. Under EU legislation, I’m afraid we’re not liable for a compensation payment in this situation.
To explain further, there’s currently an issue with the Rolls Royce engines on all B787 aircraft. British Airways and all other airlines operating these aircraft are therefore under instruction from Boeing to remove these aircraft from service for further inspection. I’m afraid this was out of our control and caused unforeseen disruption to our schedule.

We take all reasonable measures to avoid cancelling a flight and we always consider if there are any operational options available before we make a decision. We’re very sorry the cancellation was necessary in this case.

Of course, we’ll fully cover your hotel, food and transport expenses you had as a result. I’ve therefore arranged a refund of €1,2 Million to your bank account and this will be with you shortly.

Thanks again for getting in touch with us so we could explain the background. We value your loyalty as a Gold member of our Executive Club and I hope you enjoy your flight with us in February. Please feel free to contact me directly using the blue link below if I can help you with anything else.

Best regards

Pamela Anderson”


Am I wrong to say these technical reasons are not “extraordinary circumstances”?
And/or is this technical issue sincere and is it a serious reason that BA would not be liable for the compensation?

BTW. Common sense tells me BA had more then enough time to find another aircraft.


Looking forward to what you guys think and/or advice what my next step should be or that I just let it be...

Thanks a lot!
M.
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Old Dec 5, 17, 8:31 am
  #1735  
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Originally Posted by MLE1 View Post
Am I wrong to say these technical reasons are not “extraordinary circumstances”?
And/or is this technical issue sincere and is it a serious reason that BA would not be liable for the compensation?

BTW. Common sense tells me BA had more then enough time to find another aircraft.
I think that this one might be more difficult than the normal tech issue. See these threads for reports of other cancellations (including by other airlines):-
BA292 IAD-LHR Thu 04 Jan Cancelled
BA LHR-DOH-LHR daily cancellation since 13/11?
Atlanta from 789 to 777 change?

This feels different from the usual run-of-the-mill technical problem, and I think there's been some case law on this. The problem with "common sense" is that it doesn't tell you where the extra aircraft are going to come from if the entire fleet is short by a couple of aircraft for a prolonged period. Of course, the airline could always steal an aircraft from some other flight and cancel that one instead, but there's no particular reason why your flight was more important than the other one.
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Old Dec 5, 17, 8:33 am
  #1736  
 
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Originally Posted by MLE1 View Post
...
Of course, we’ll fully cover your hotel, food and transport expenses you had as a result. I’ve therefore arranged a refund of €1,2 Million to your bank account and this will be with you shortly.
Not sure on your specific question as manufacturing defaults are valid reasons not to pay compensation but BA would have to show that this was the actual reason. However the above caught my eye as I don't think I would take this further if I was receiving that amount of refund!
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Old Dec 5, 17, 9:00 am
  #1737  
 
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This is one of the few cases where technical issues can indeed result in no EC261 compensation.
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Old Dec 5, 17, 11:37 am
  #1738  
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Originally Posted by MLE1 View Post
Dear All,
Just checking if I am insane and what my next step should be. Please let me know what you guys think.
As indicated up thread, mechanical defects generally don't allow for airlines to get out of EC261, but in a number of CJEU cases the issue has been mulled over as to what would be an example of extraordinary circumstances where mechanical issues were involved - in order the draw the contrast with the more usual technical issues which most certainly are not extraordinary. And in that, the example quoted was if an airline manufacturer issued an urgent recall of its aircraft to fix a fault, thereby ground an airline's schedule. More over this 787 issue has hit a number of airlines, not just BA, and is well documented on the web.

Now I can see another line of argument - which I am not convinced would work - where it could be argued that this is a grounding of only part of the fleet, and therefore the airline could be challenged whether "all reasonable measures" had be taken: they could have shuffled their fleet around better, leased some aircraft, made arrangements with other airlines and so on. With good legal advice and a sympathetic judge this may get somewhere, otherwise it's clutching at straws. I put that down to give the other side of the equation.

I trust you greatly enjoyed your final night in AUH, with that level of spending I would have thought the trifling matter of a few extra hours of such lavish relaxation would not be a huge concern.
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Old Dec 5, 17, 12:13 pm
  #1739  
 
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Hi MLE1,

Normally when this type of manufacturing fault occurs it requires the immediate grounding of all affected aircraft on safety grounds, such as the battery problem on, as it so happens, the B787. When this happens it is clearly outside of the airlines responsibility and the airline is exempted from it's obligation to pay compensation.

On the date your flight was delayed, and at roughly the time you were due to fly, there were over 100 B787 in the air, including other BA B787’s. This could be because not every B787 is affected by the claimed fault or it could be because safety check or repairs have to be carried out in a short, but managed, time scale. In which case it will be BA’s responsibility to manage that process. How BA choose to manage that situation is up to them, however, as this is now inherent within BA’s operations they are responsible for EC261 compensation IMHO.
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Old Dec 5, 17, 12:29 pm
  #1740  
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Originally Posted by Tyzap View Post
On the date your flight was delayed, and at roughly the time you were due to fly, there were over 100 B787 in the air, including other BA B787’s. This could be because not every B787 is affected by the claimed fault or it could be because safety check or repairs have to be carried out in a short, but managed, time scale.
AIUI the nature of the problem means that it is not possible for the whole 787 fleet to be in the air, even though most of them can be. This is why there are unserviceable 787s littering a number of airports around the world. And so the fact that many 787s are nevertheless able to fly doesn't really shed a great deal of light on whether any particular airline has done all that it reasonably can. Arguably, some other airlines have had to resort to quite extraordinary measures to try to cover the present situation. If BA is focusing cancellations on routes on which it is easy to re-accommodate and re-route affected passengers, there's a decent argument that that's a reasonable approach. It's not been a case of "there are a couple of broken aircraft today".
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