testycal

Discussing the issue rather than personal attacks is generally more useful.

KARFA

I think the only way you are going to get any resolution to that issue testycal is to go to court. Are you planning to file a claim and pursue in in court when BA refuse?

armouredant

testycal, the previous paragraph in the reply you quoted was literally discussion of the issue.

corporate-wage-slave

OK, so this isn't a CJEU judgement, it's just the Amtsgericht ruling, that's a court of the first instance so I doubt it will set European wide precedent. This was a flight from FRA to LAS which was delayed 20 hours because after the non availability of anti freeze, the crew ran out of hours. Given that FRA is the airline's base (so presumably Condor) then I can see why the judge questioned whether more could be done. In other words it wasn't just about the de-icing.

Urteil > 29 C 286/15 (85) | AG Frankfurt am Main - Ausgleichsanspruch wegen Flugverspätung: Fehlende Enteisung des Flugzeugs begründet keinen außergewöhnlichen Umstand < kostenlose-urteile.de

WorldLux

The ECJ made a press release today on recent air passenger rights cases.

The joint cases boil down to
While these cases resolve around the issue of jurisdiction, they may nevertheless be of interest to some of you.

Case numbers C-274/16, C-447/16 and C-448/16
flightright GmbH v Air Nostrum
Becker v Hainan Airlines
Barkan v Air Nostrum

Full press release: https://curia.europa.eu/jcms/upload/...cp180028en.pdf

Tobias-UK

Temych

An update on my claim.
I received the defence details from the BA legal team. They don't give any details on why they consider the Mixed Fleet strike a) outside their control and b) not inherent in the normal operation of an airline.
Some excerpts from their defence are below under Spoiler section.

What shall I do at this stage of my claim? Request judgement?
Update: MCOL site now says "DQ sent to British Airways".

raikje

Can I check if I'm being reasonable? During the snow, I was booked LGW-GLA on Wednesday. That was cancelled, and I rebooked on Thursday. On Thursday, that was cancelled and I was rebooked on Friday. That was, in turn, cancelled. At that point, BA.com stopped letting me rebook online (in fact, I was never even told the flight was cancelled) and the best availability I could see online was Sunday. At this point, I booked a Flybe flight on Friday night from SEN for £95.

I'm asking BA to reimburse me for the two nights hotel (for the first two cancelled flights) and a reroute on BE for the third cancelled flight. This seemed reasonable to me at the time, as it was a full 48 hours earlier than BA could offer ("earliest opportunity"), and the £95 cost of a BE flight is less than two more nights in a London hotel + food, so actually saving BA some money.

BA's initial response is "As you've travelled with alternative airline, we cannot reimburse your additional expenses. I am sorry to disappoint you.". I believe that, at a minimum, they should be liable for 2 nights hotel and then a ~£65 refund, as there were three separate cancellations. Is this fair?

Tobias-UK

Tyzap

In Huzar v Jet2.com it was also stated

1. Having observed that Article 5(3) is a derogation from the principle of compensation and should be strictly applied, the Court then considered the significance of recital 14, set out above. It observed that the circumstances referred to in that recital are only indicators; they identify events which may, but not necessarily will, constitute or give rise to exceptional circumstances. Accordingly, “It follows that not all circumstances surrounding such events are necessarily grounds of exemption from the obligation to pay compensation provided for in Article 5(1)(c) of the Regulation” (para. 22).(my bold) The Court also later held that although recital 14 refers to the Montreal Convention, an international treaty imposing similar liabilities in certain circumstances, that Convention could not determine the proper construction of Article 5(3).
   
   The full text of that judgement can be found here.. http://legalbeagles.info/wp-content/.../HuzarJet2.pdf

corporate-wage-slave

Well your line of argument will be that BA failed to rebook you to your destination, but another airline was able so to do. The fact that Flybe were operating, albeit from SEN, and BA was not would in itself be a persuasive line of argument. It would be better if you had also called the Contact Centre as well. So given the timelag I think that should be claimable, and in that case either CEDR or preferably (slightly so) MCOL to reclaim the flight, the hotel, any food, travel and communication expenses. If you claim the Flybe service you can't claim the BA refund, however, it's one or the other.

corporate-wage-slave

There is quite a lot in the spoiler that could be challenged, so I would certainly urge a careful read up on the evidence. I've no idea how this will go down, but things like economic factors simply aren't in the Regulation. I think this is a situation where if you do the homework I doubt BA will go beyond the arbitration stage, assuming you agreed to that.

raikje

Thanks c-w-s. That was my initial claim - I said I wouldn't be seeking a refund, and instead was seeking effectively an endorsement of my ticket over to BE. To be honest, I'd be happy with 2 nights care and a refund (the difference is only £30), but the nuisance there is the refund will go back to my corp TA, and the Flybe flight will then need claimed separately on expenses.

corporate-wage-slave

If claimed under EC261 the refund is legally due to the passenger (at least that would be my reading, there is a bit of scope of ambiguity admittedly), though in practical terms refunds normally indeed end up with the travel agent. In theory you can pursue BA for that. Article 8.1. The further complication is that in those circumstances where BA does refund third party tickets their usual approach is "we will refund our sectors and then you can claim from us the delta after it has been calculated", which doesn't overly help you, since the road still leads back to the TA.

Often1

EC 261/2004 was intended to set bright lines. Just because a particular resolution might actually be to the mutual advantage of the passenger and the carrier does not mean that either or both need accept it.

In this case, the passenger is certainly due reimbursement under BA's "duty of care" for two nights lodging and food and those will likely be paid if reasonable and documented. Had the passenger accepted the reroute offered by BA, e.g., 2 additional days, he would be entitled to the same duty of care for 2 more days, a total of 4.

Indeed the BE ticket was certainly cheaper than 2 additional days in a hotel and, had the passenger asked, perhaps BA would have issued the ticket or agreed to reimburse for it. But, as it stands, the passenger chose "self-help" and BA may choose not to reimburse for the BE ticket and as there were no additional days of lodging, the 3rd and 4th days of a hotel are not claimable because they did not occur. This is consistent with the duty of care which is a reimbursement or voucher and not compensation.

Under the Regulation, the passenger is, of course, entitled to a full refund of his BA ticket to his chosen original form of payment. While it may be a bit of a nuisance because the forms of payment were different and it appears that he will need to claim the BE ticket back from his employer, it will all wash out and frankly, unless he has a truly slothful employer, he should see a reimbursement for his BE ticket from his employer before he would ever see anything from BA for the value of the BE ticket. The employer will see a refund of the BA segment and a payment for the BE segment and those will, when it is all done, counterbalance each other.