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The 2018 BA compensation thread: Your guide to Regulation EC261/2004

The 2018 BA compensation thread: Your guide to Regulation EC261/2004

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Old Dec 17, 18, 5:14 am   -   Wikipost
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Last edit by: serfty
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Link to Text of the regulations in PDF format

How about a Wiki to post EU comp given/denied as well as results for any CEDR or other process. Especially concerning the 787 issue as there are going to be many claims given all the cancellations.

Mine was April 22 BA280 LAX-LHR cancellation 4 days before flight and rebooked on later flight and arrived 4.5 hrs later than origianlly scheduled. BA's response was to deny for "operational" requirements though the 787 "tentatively assigned" G-ZBJG was used instead for a LHR-YUL flight that same day. CEDR filed and awaiting their initial review. Sept 3rd UPDATE: CEDR decision in Article 7 comp awarded in the amount of 600 euro as even though extraordinary circumstances are present in an engine defect as this, BA didn't show that they took reasonable steps to avoid the cancellation as they have known since Oct 2017 of this issue.
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Old Sep 3, 18, 7:05 pm
  #1261  
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Originally Posted by rbAA View Post
So, if you've been following my claim regarding the cancellation of my April LAX-LHR flight due to the 787 engine issues, the CEDR arbitrator just awarded me Article 7 compensation of 600 euro, denied my Article 8 claim for a refund of half the ticket cost, and BA already paid the Article 9 compensation at the time they filed their response in the CEDR matter. The arbitrator specifically found that engine issues such as the RR Trent 1000 presented are extraordinary circumstances. However, since BA has known of this issue since at least October 2017, the arbitrator ruled that BA did not meet their burdan of proof that they took reasonable precautions to avoid these cancellations. Therefore, BA can't use the extraordinary circumstances defense in these matters.

Further, it didn't matter that I arrived in OSL at the same time as my originally scheduled arrival. The time factor is the delay in arriving at the destination of the cancelled flight, even if you make your original connection for onward flights.

Decision is attached.
Congratulations.
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Old Sep 3, 18, 11:24 pm
  #1262  
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Originally Posted by danger View Post
Thank you both. This week I was scheduled to fly from an outstation (outside the EU but an airport BA serves more than once a day). We were notified at check-in of a circa 45 minute delay apparently due to weather impacting the inbound's departure from LHR. At the gate, a few minutes after the original departure time but before the revised, we were told the flight had been cancelled due to an I'll FO. It was BA's last departure of the day. We were re-scheduled 24 hours later.

I'd be an interested in people's thoughts on whether or not this is due EU261. We've all been given transportation, food and overnight accommodation which on the face of it is great (although the ground handling was appalling). On the flipside, was it really illness or is BA just saying that because it can?
Originally Posted by danger View Post
That's exceptionally helpful information, thank you. It was indeed IST.

It was IST on BA675 today, 28 July.

What I'm sensing is that this probably doesn't qualify for EU261.
BA has denied our claim, stating that the first officer's illness is extraordinary. I have asked for proof of the illness and there's been no response.
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Old Sep 3, 18, 11:37 pm
  #1263  
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Originally Posted by danger View Post
BA has denied our claim, stating that the first officer's illness is extraordinary. I have asked for proof of the illness and there's been no response.
Maybe time for a "Letter Before Action"?
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Old Sep 3, 18, 11:50 pm
  #1264  
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Originally Posted by serfty View Post
Maybe time for a "Letter Before Action"?
Yes, I think so. I'm reading the detailed information on the first page of this thread to get an understanding as to how to proceed.
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Old Sep 4, 18, 12:00 am
  #1265  
 
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Originally Posted by danger View Post
BA has denied our claim, stating that the first officer's illness is extraordinary. I have asked for proof of the illness and there's been no response.
I don't see any alternative to MCOL or CEDR here.

I really can't see BA providing you directly with information on the illness. That is confidential personnel data.
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Old Sep 4, 18, 12:01 am
  #1266  
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Originally Posted by danger View Post
BA has denied our claim, stating that the first officer's illness is extraordinary. I have asked for proof of the illness and there's been no response.
I’m not sure what proof you’re expecting from BA. It has a duty to protect the privacy of its employees which will rank above absolutely any piece of information you might require. Whilst the airline might very often be disingenuous when it comes to claims, it is not going to directly lie to you - if the claim is that the FO was ill, that will be the truth.

What you, and perhaps at some point a court, will have to decide is whether an unwell FO at a relatively remote outstation is both extraordinary and BA took all reasonable measures to avoid a delay.

It’s perfectly clear, I’d think, that the flight could not safely operate without his/her presence. Illness of someone on the flight deck is certainly not common. It will probably then come down to how easy it would be for BA to replace the FO at probably short notice. Given you were at an outstation many hours from a crew base, the replacement would have to been substituted in from another crew. You’ll likely then fall into a crew hours situation which would make that impossible.

So, I’m not sure I fancy your chances too much here.
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Old Sep 4, 18, 12:50 am
  #1267  
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Originally Posted by simons1 View Post
I don't see any alternative to MCOL or CEDR here.

I really can't see BA providing you directly with information on the illness. That is confidential personnel data.
Originally Posted by NWIFlyer View Post
Iím not sure what proof youíre expecting from BA. It has a duty to protect the privacy of its employees which will rank above absolutely any piece of information you might require. Whilst the airline might very often be disingenuous when it comes to claims, it is not going to directly lie to you - if the claim is that the FO was ill, that will be the truth.

What you, and perhaps at some point a court, will have to decide is whether an unwell FO at a relatively remote outstation is both extraordinary and BA took all reasonable measures to avoid a delay.

Itís perfectly clear, Iíd think, that the flight could not safely operate without his/her presence. Illness of someone on the flight deck is certainly not common. It will probably then come down to how easy it would be for BA to replace the FO at probably short notice. Given you were at an outstation many hours from a crew base, the replacement would have to been substituted in from another crew. Youíll likely then fall into a crew hours situation which would make that impossible.

So, Iím not sure I fancy your chances too much here.
I completely agree about the confidentiality and I certainly wouldn't expect BA to send me information with the pilot's name. Even if I did receive that, what's to say the pilot referenced was actually the pilot of the aircraft.

I'm not sure I agree that BA would outright lie, particularly in circumstances where it can't (or at least is very difficult to) prove otherwise.

The reason I asked for proof BA's email specifically stated "Article 5.3 of the EU Regulation 261/2004 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances . . ." (my emphasis). In other words, While I think this regulation is great for passengers, this requirement for proof is problematic and, in my opinion, very opaque. British Airways said itself 'if the airline can prove' - so prove.

As for the illness of the flight crew being considered extraordinary, I was particularly interested in the below case. I note the advice of another member here that this ruling isn't binding because of the court it was decided in and there may well be other cases ruling in favour of the airline. I nonetheless find it interesting that in a remote outstation where a crew member fell ill, the court found it wasn't extraordinary. Employee illness happens all the time.

Originally Posted by danger View Post
This 'crew illness' issue is quite interesting.

A helpful member on Australian Frequent Flyer recently posted these two links:

https://www.bottonline.co.uk/blog/ju...y-compensation

https://www.bottonline.co.uk/flight-...-crew-sickness

Basically, a court has previously ruled - against BA no less - that crew illness is not extraordinary.
At the end of the day, I'm really neither here nor there. I have absolutely no issue with the illness being extraordinary and not subject to compensation, if that is indeed the case. The above court case and the fact BA (like other airlines, I'm sure) has a habit of just saying no to claims makes me want to dig a little deeper to ensure I'm getting - or not getting - what I'm entitled to.
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Old Sep 4, 18, 1:24 am
  #1268  
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Many thanks for that rbAA, it will be very useful to many others in a similar situation. The judgement wording is clear and very well laid out by the adjudicator. Namely it is extraordinary circumstances but BA failed to take all reasonable measures. Until now I advocated people take the MCOL approach, but this judgement will make it better to take the CEDR route. However 2 caveats. Firstly as far as I believe the following is incorrect in law: the Regulation says clearly "Final Destination" which can only be OSL to my mind unless this was a separate ticket (unlikely!). Maybe the adjudicator didn't notice this.

Originally Posted by rbAA View Post
Further, it didn't matter that I arrived in OSL at the same time as my originally scheduled arrival. The time factor is the delay in arriving at the destination of the cancelled flight, even if you make your original connection for onward flights.
Secondly BA seems not to have relied on this point in their submission (hence the adjudicator's decision) but they also didn't submit anything as to what reasonable measures they had taken:
Originally Posted by CEDR
I am mindful that the airline has not provided any evidence or reasoning to demonstrate what reasonable measures were considered in respect of the Flight in particular, why these measures could not have been taken or why it would be regarded as unreasonable to have taken such measures.
So the next claim may well have something from BA that addresses this and passengers perhaps need to anticipate this in their submission. I suspect it won't fully help BA, since unless they rebook people on other airlines, get charter aircraft in, reroute oncarriage passengers etc then there will be a comeback to the passenger.
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Old Sep 4, 18, 1:32 am
  #1269  
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Originally Posted by danger View Post
As for the illness of the flight crew being considered extraordinary, I was particularly interested in the below case. I note the advice of another member here that this ruling isn't binding because of the court it was decided in and there may well be other cases ruling in favour of the airline. I nonetheless find it interesting that in a remote outstation where a crew member fell ill, the court found it wasn't extraordinary. Employee illness happens all the time.
Yes, the Bott case was indeed not a precedent, and the precise circumstances will need to be considered at MCOL level. On the other hand, unless there was a highly unlikely error, District Judges will simply enforce the law, it would be beyond unlikely that the Judge got the law principles incorrect. Note the point that even if it is extraordinary, did BA take all reasonable steps? And even if it did, was there more it could have done to reduce the impact on passengers? Personally I'm not sure it's suitable for CEDR, unless you can get hold of the full judgement from the Bott related case - there's no requirement at District level to publish judgements, however some Clerks at courts can be exceedingly helpful.

There are some cases which are clear cut, your case isn't in this category.
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Old Sep 4, 18, 10:21 am
  #1270  
 
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Originally Posted by corporate-wage-slave View Post
Many thanks for that rbAA, it will be very useful to many others in a similar situation. The judgement wording is clear and very well laid out by the adjudicator. Namely it is extraordinary circumstances but BA failed to take all reasonable measures. Until now I advocated people take the MCOL approach, but this judgement will make it better to take the CEDR route. However 2 caveats. Firstly as far as I believe the following is incorrect in law: the Regulation says clearly "Final Destination" which can only be OSL to my mind unless this was a separate ticket (unlikely!). Maybe the adjudicator didn't notice this.

Secondly BA seems not to have relied on this point in their submission (hence the adjudicator's decision) but they also didn't submit anything as to what reasonable measures they had taken:

So the next claim may well have something from BA that addresses this and passengers perhaps need to anticipate this in their submission. I suspect it won't fully help BA, since unless they rebook people on other airlines, get charter aircraft in, reroute oncarriage passengers etc then there will be a comeback to the passenger.
Actually, the arbitrator was correct in his interpretation as the article on compensation (Art 7) says that "In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time." Note that it does not say "final destination". So, LHR was the last destination of the flight that was cancelled. Both BA and I fully disclosed the complete routing, so it wasn't missed at all and was fully set forth for the arbitrator.. I briefed this and BA didn't dispute it.
On the reasonable measures issue, BA went into a long explanation of the RR Trent issues, which I believe hurt their case as it clearly showed the failure in their fleet management for over 7 months after the issue was first raised and became an escalating problem. I also briefed this and provided overall fleet numbers for similar long haul aircraft as well as attached the proposed QR wet lease action.
Anyone needing copies of my briefs or BA's submissions please PM me. I'm on vacation in the US right now so please be patient.
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Old Sep 5, 18, 1:14 am
  #1271  
 
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Question Does location set the currency in which you are paid?

BA have agreed to pay me the full compensation of 600Euros for a delay of more than 6 hrs on long haul flight.
Or rather, BA have offered to pay me the equivalent sum in GBP in a UK account or USD in a US account.
However, they say that "we're unable to arrange a bank transfer in Euros to a UK account", ie my Euro denominated account at a UK bank, which has a standard sort code and a/c number.
Any ideas on the reason for the refusal?
While my BAEC account is registered in the USA, my ticket was issued in Japan and charged in JPY, albeit to a USD credit card, so it's not my current country of residence (JPN) nor my BAEC domicile (USA) that seems to be a determining factor.
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Old Sep 5, 18, 1:45 am
  #1272  
 
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So, just had an interesting conversation with BA. They called me regarding my EU claim on our inbound flight. We were flying BOS-LHR-BRU all on BA flights. The first flight was delayed causing us to miss our connection. They rebooked us on a Brussels Airlines flight which would have gotten us to Brussels about 2,5 hours late but that flight was delayed as well so we got to Brussels 3 hours and 5 minutes late. Without our luggage. So where normally I might be tempted to let it go (only 5 minutes over) that put an extra two hours on to our trip before we were able to be on our way so I am going for my compensation.

Anyhow, BA is now saying that since they booked us on a flight that was supposed to arrive within the 3 hours they are not liable even if that flight is delayed. Because we switched carriers in London nobody is in fact liable. To me that sounds fishy. I would say it remains BAís problem and it is their bad luck our alternative flight was delayed. Or am I wrong?
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Old Sep 5, 18, 3:47 am
  #1273  
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Originally Posted by babarage View Post
Anyhow, BA is now saying that since they booked us on a flight that was supposed to arrive within the 3 hours they are not liable even if that flight is delayed. Because we switched carriers in London nobody is in fact liable. To me that sounds fishy. I would say it remains BAís problem and it is their bad luck our alternative flight was delayed. Or am I wrong?
It's not clearly laid out in the Regulation. If a flight operated by SN is late, then on paper it is for you to claim from SN, however presumably SN were not 3 hours late. On the one hand article 5 talks about scheduled timing (in a Cancellation context); whereas article 7 (compensation amounts) talks in terms of actual timings. I suspect MCOL would side with you (I don't know about CEDR) but it would not surprise me if BA relied on article 5 and refuses to pay up without a fight, partly because they won't see much data about the SN flight.
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Old Sep 5, 18, 4:07 am
  #1274  
 
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Originally Posted by babarage View Post
Anyhow, BA is now saying that since they booked us on a flight that was supposed to arrive within the 3 hours they are not liable even if that flight is delayed. Because we switched carriers in London nobody is in fact liable. To me that sounds fishy. I would say it remains BA’s problem and it is their bad luck our alternative flight was delayed. Or am I wrong?
Given the circumstances, I agree with c-w-s that you're going to have to get this in front of a judge before you'll get either airline to pay out compensation :-/
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Old Sep 5, 18, 9:27 am
  #1275  
 
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Since we live in the Netherlands I will start a case here. That is, we have a ďlegal assistance insuranceĒ that should cover this. Letís see what they do.
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