NWIFlyer

It's worth a reference point to anyone coming across this thread who hasn't followed the 2018 edition which spells out the arguments.

Whilst the result is the same, actually the circumstances were/are still extraordinary and it's important to argue on a different clause in the legislation, article 5(3), where the airline has to take "all reasonable measures".

Given the amount of time BA has had to resolve this, knowing maintenance would be required, is why they are losing CEDR cases.

Your last two sentences, on the other hand, might well be considered to be spot on!

UKtravelbear

Just a note of thanks to @corporate-wage-slave et al for updating this very valuable thread (again)

FlyerTalker39574

PAL62V

UPDATE: I have won my CEDR claim against BA for the wife's cancelled 787 flight in Sept '18. BA's usual denial of EC261 due to extraordinary circumstances with RR Trent 1000 engines. See Post #1751 in the 2018 edition of this thread. Just as a reminder, our response was thus:

Comments on BA's CEDR Response

BA, by their own admission was made aware officially on April 13, 2018 that urgent checks would have to be made. So BA had from 13 April to get Mrs. PAL62V (and all the other passengers) on time between the two biggest cities on BA's network.

BA refers to item 18 of the NEB Guidelines issued by the EU Commission dated 19 April 2013, which sets out a list of circumstances which are extraordinary circumstances. This Item states in part: "Discovery of a hidden manufacturing defect by the air carrier." Given the time that had lapsed since the Airworthyness directive it's hard to define it as hidden five months later.

Also several small claims cases have tried to define a hidden manufacturing defect and have found this defence can only be used if it's a defect that immediately impinges on flight safety. As the Airworthiness Directive had a set compliance time, it is up to BA to prove that the aircraft in question was put to inspection on the threshold of flight cycles on the outbound, or that the return flight would put it in breach of the threshold, otherwise the aircraft is deemed safe to fly by the Airworthiness Directive. BA has not provided any information as to the number of flight cycles that the aircraft in question had completed.

BA's Attachment 2 shows that the cancelled flight was to be operated by a 787-800, yet they go to lengths to explain how five 787-900s were taken out of service during September. BA states that: " The Boeing 787-9s with the registrations G-ZBKD, G-ZBKI, G-ZBJF, G-ZBJE and G-ZBJA and were all subject to the inspections during September 2018. These aircraft failed the inspections for both engines and accordingly replacement engines were required. These aircraft were therefore grounded and were out of service until new engines had been fitted." A further piece of basic research then shows that only G-ZBKD & G-ZBKI are 787-900s. G-ZBJF, G-ZBJE and G-ZBJA are 787-800s. I am astonished that BA does not seem to be able to correctly identify its own aircraft. This leads me to wonder how many other inaccuracies are to be found in their defence.

BA states that they considered wet-leasing options to avoid cancellation of the flight. However they then go on to say that the lead time for such action is approximately 21 days. They then state that: "At the time of making the decision to cancel the flight, there was not sufficient time to arrange a wet-lease." 'Reasonable Precautions' would have led to them looking to wet lease an aircraft at least 21 days and not 72 hours before this flight which was when it was cancelled.

BA also states that: "Wet-leasing aircraft is much more difficult in the spring/summer season..." I might remind BA that this cancellation happened on a flight scheduled for September 16th, generally regarded as autumn in the northern hemisphere and outside of the usual spring/summer tourist season.

CEDR has ruled in past cases that were very similar to this in favour of the passenger and from what BA has submitted in this case, their line of defence has not changed. I do not believe that BA have met the burden of proof that that they took reasonable precautions to avoid this cancellation. And if that is the case, they cannot use the defence of 'extraordinary circumstances' in this matter.


Here is the CEDR adjudication:

. Reasons for decision 
. 1. The airline contends that it has no obligation to pay compensation in accordance with Regulation 261. It states the Flight was cancelled due to a manufacturing defect on the aircraft scheduled to operate the Flight that was found prior to the departure of the Flight. The airline submits that the events which necessitated the cancellation of the Flight amount to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 


1. In order to be discharged from its obligation to pay compensation, it is for the airline to establish that the Flight was cancelled due to extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken. 

2. To be classified as extraordinary, an event shall not be inherent to the operations of the airline, and beyond its control. In Pešková Peška v Travel Service A.S. (Case C-315/15), the Court of Justice of the European Union (“CJEU”) clarified that extraordinary circumstances under Regulation 261 refer to situations that “are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside [the airline’s] actual control”. The “reasonable measures” burden, on the other hand, is satisfied when even if the airline had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able, unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time, to prevent the extraordinary circumstances. 

3. I note the extensive and specific information on the manufacturing problem of the Rolls Royce engine fitted to the Boeing 787 aircraft scheduled to operate the Flight presented by the airline. I thus accept that the cause for the cancellation was a manufacturing defect of the aircraft’s engine, which was found during an inspection programme in relation to the series of Trent 1000 engines. 

4. In many cases, mechanical and technical defects do not amount to extraordinary circumstances. This includes occasions when the defect is inherent in the ordinary operations and running of an airline or where the problem is caused due to the “wear and tear” of an aircraft. In the present case, however, the defect concerns an engine, which was admitted by the manufacturer to be faulty. The airline further claims the manufacturer themselves had not anticipated such issue. 

5. In applying the Pešková Peška v Travel Service A.S. test outlined in paragraph 3 of the present decision, I find that the manufacturing defect in the present case is not by its nature or origin inherent in the normal exercise of the activity of the air carrier concerned and is outside the airline’s actual control. I also note that this technical fault was not part of the wear and tear of the aircraft. Moreover, I take into account the non-binding but authoritative Civil Aviation Authority list of extraordinary circumstances, which stipulates that extraordinary circumstances are deemed to exist where a hidden manufacturing defect is discovered by the air carrier. I therefore accept that the mechanical defect to the aircraft in the present case shall be considered an extraordinary circumstance. 

6. The airline is also required to prove that it took all reasonable measures to mitigate the resulting disruption. The airline states that it “took all reasonable measures and/or employed all resources at its disposal to avoid the extraordinary circumstance”. As, however, it had to “comply with the instruction to inspect the relevant aircraft in accordance with the AD 13 April 2018”, it claims there were no “reasonable and/or technically and/or economically viable option available to [the airline] that would have enabled it to operate the Flight at this time.” The airline contends that it implemented the necessary inspection program as quickly and efficiently as possible. It further elaborates that due to the widespread defect, its fleet was not at full strength and that there were no spare aircraft in its fleet which could have operated the Flight. The airline therefore sought to “wet-lease” another aircraft to avoid the cancellation. It asserts that “[a]t the time of making the decision to cancel the flight, there was not sufficient time to arrange a wet-lease.”

1. The notice provided by the airline regarding the issue with the Trent 1000 engines was issued on 19 April 2018. However, both the Airworthiness Directive itself, as well as the article provided by the airline suggest that the issue has been ongoing since 2017. The airline itself acknowledges the Airworthiness Directive instructed “all airlines around the world operating with the Trent 1000 engine to complete urgent checks on the compressor”. The airline contends it hence “had no choice but to schedule the aircraft for the additional checks and inspections.” 

2. The airline states that any aircraft which was not inspected was automatically classified as an “ETOPS 60 or non-ETOPS which would make flying over large stretches of water or barren land virtually impossible.” While the airline states that inspections are still ongoing, I remain unconvinced why, if the aircraft scheduled to operate the Flight had not undergone the inspection, which the airline was aware was compulsory and imminent, was that aircraft still scheduled to operate a transatlantic route. 

3. The airline contends there were no spare aircraft in its fleet which could have operated the Flight. However, I note that it has not provided any evidence supporting this statement. I also find that the airline has not provided sufficient evidence or explanations establishing why the 21-day period for employing a wet-leased aircraft was not sufficient, given that the need for the aircraft inspection was known at least since April 2018. 

4. The airline states that “Rolls Royce predicted 90% of the engines subject to the inspections under the AD 13 April 2018 would fail and therefore need replacing”. In my opinion, there was thus enough time for the airline to anticipate the likelihood of the aircraft scheduled to operate the Flight to need either engine repairs or engine change. I have not been provided any clear information as to why, if the aircraft had not been checked, the airline did not seek to make alternative arrangements for a replacement aircraft, from its own or other fleets, much earlier. As such, I find the airline has not demonstrated that it had deployed all its resources in terms of staff or equipment and the financial means at its disposal to avoid the cancellation of the Flight. I also note that the airline has not presented any evidence showing that there were no available aircraft which could have operated the Flight. 


1. Taking this into account and bearing in mind that I have to make findings on the balance of probabilities, I find that the airline has not sufficiently demonstrated that it took all reasonable measures in order to avoid the extraordinary circumstances and the cancellation of the Flight. 

2. In view of the distance of the Flight of 5577km pursuant to the great circle method, the passenger is entitled to €600.00 in compensation in accordance Article 7 of Regulation 261. I thus direct the airline to pay that sum to the passenger accordingly. 


Decision • The passenger’s claim succeeds in full. 
• I direct the airline to pay the passenger the total sum of €600.00 in compensation. 
• The conversion rate from Euros to Pounds Sterling shall be in accordance with the exchange rate 
published on the European Central Bank website on the first working day of the month in which this decision is issued.


I hope this posting will help others as previous ones helped me. A HUGE thank you to all those who helped and a special thanks to C-W-S who goes to extraordinary lengths on this forum to help so many of us in this and other threads.

FlyerTalker39574

seagull88

I might as well post my response also.

Agreed facts
 The Passenger was booked on the Flight.
 The Flight was cancelled.
Issues in dispute
 The Passenger claims compensation of €300.00 for the cancellation of the Flight.
 The Airline invokes the existence of “extraordinary circumstances” and denies that compensation is due to the Passenger for the cancellation of the Flight.
Decision making principles
 In order to succeed in a claim against the Airline, the Passenger must prove on a balance of probabilities that they are owed compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 (“Regulation 261”), under the Convention for the Unification of Certain Rules for International Carriage by Air (“the Montreal Convention”), or that they have some other legal entitlement to compensation.
 The airline will not have to pay compensation where it can prove that a delay or cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
 I have carefully considered all of the issues raised and the documents provided. Both the Passenger and the Airline should be reassured that if I have not referred to a particular issue or document, this does not mean that I have not considered it in reaching my decision.
Reasons for decision

1. The Airline acknowledges that the Flight was cancelled, but argues that the cancellation resulted from a hidden manufacturing defect affecting the type of aircraft scheduled to operate the Flight, and that this constitutes an “extraordinary circumstance” precluding payment of compensation under Regulation 261.

2. As argued by the Airline, Regulation 261 excludes Airlines from having to pay compensation when a cancellation occurred due to “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

3. In Pešková and Peška v Travel Service A.S. (Case C-315/15), the Court of Justice of the European Union (“CJEU”) clarified that “extraordinary circumstances” under Regulation 261 refers to situations that “are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside [the Airline’s] actual control”.

4. The CJEU has further clarified that the reference to “all reasonable measures” means that “even if [the Airline] had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able, unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time, to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight” Eglītis v. Latvijas Republikas Ekonomikas ministrija (Case C-294/10).

5. In Van der Lans v KLM (Case C-257/14), the CJEU affirmed that a “hidden manufacturing defect” revealed by a manufacturer and affecting flight safety constitutes an “extraordinary circumstance” under Regulation 261.

6. The Airline has explained that a hidden manufacturing defect was found to affect certain Rolls Royce engines, and I find that the Airline has sufficiently established that inspections related to this defect were the cause of the cancellation of the Flight.

7. However, the Airline must also demonstrate that there were no “reasonable measures” it could have taken “to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight”.

8. While it is clear that there were no reasonable measures the Airline could have taken that would have prevented the impact of the hidden manufacturing defect on the type of aircraft scheduled to operate the Flight, the Airline has failed to demonstrate that it took all reasonable measures to avoid the cancellation of the Flight.

9. Specifically, the Airline acknowledges that it received notification of the problem with the engines in April 2018, four months prior to the date of the Flight. The Airline also acknowledges that Rolls Royce predicted that 90% of the engines subject to investigation would fail the examination and require replacing. As noted by the Passenger, since the type of aircraft scheduled to operate the Flight had two engines, both subject to a 90% likelihood of failure, this meant that there was a 99% likelihood that at least one of the engines on each of this type of aircraft would fail the examination, leaving the aircraft unable to operate the Flight.

10. Nonetheless, despite knowing with near certainty four months before the Flight was scheduled that whichever aircraft was selected to operate the Flight it would be affected by this defect, the Airline declined to arrange a wet-lease of a replacement aircraft. The Airline emphasises that arranging a wet-lease would have taken 21 days, but as the Airline knew of the problem four months in advance, this limitation was not an obstacle.

11. Rather, the Airline acknowledges that “The Network Operations Planning team had hoped that they would have been able to resource an aircraft to operate the flight from elsewhere in the fleet.” While this would have solved the problem, the risk that no aircraft would be found was one the Airline chose to take, rather than incurring the costs involved in a wet-lease.

12. The Airline also states that Rolls Royce was having trouble making sufficient replacement engines, and this implies that the Airline may have been hoping that replacement engines would have been provided in time for an aircraft to operate the Flight. However, if this is correct then the cause of the cancellation of the Flight was not the “hidden manufacturing defect” but a failure by a commercial partner of the Airline to supply a product when expected. This does not constitute an “extraordinary circumstance” under Regulation 261.

13. The Passenger has also presented a number of objections to the Airline’s evidence in an impressively detailed and well-argued analysis. However, given my findings above, those additional points do not need to be addressed here.

14. For the reasons given above, I find that the Airline failed to take all “reasonable measures” to prevent “the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight”, and the Passenger is entitled to compensation for the cancellation of the Flight.

15. The great circle distance from LHR to MSY is 7,450 km.

16. Normally the Airline would be obligated to pay the Passenger compensation of €600.00 for the cancellation of the Flight. However, under Article 7(2) of Regulation 261, as the distance covered by the Flight was over 3,500 km and not between two EU Member States, if the Passenger was re-routed on an alternative flight the “arrival time of which does not exceed the scheduled arrival time of the flight originally booked” by 4 hours, the Airline is entitled to reduce the compensation paid to the Passenger by 50%.

17. The Passenger was re-booked on BA1525 from LHR to O'Hare International Airport (ORD) on 25 August 2018 and BA5055 from ORD to MSY on 25 August 2018.


18. This itinerary resulted in the Passenger departing LHR at 07:45, 7 hours and 55 minutes earlier than the Flight was scheduled to depart, and arriving in MSY at 14:18, 5 hours and 17 minutes earlier than the Flight was scheduled to arrive.
19. Under the text of Regulation 261 as drafted, the Airline is entitled to reduce the Passenger’s compensation by 50% as the time of the Passenger’s arrival in MSY did not “exceed” that of the Flight by 4 hours.

20. Nonetheless, in Sturgeon v Condor (C-402/07) the CJEU emphasised clearly that Regulation 261 must be interpreted in accordance with the principle of equal treatment under EU law, “which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.”

21. This is an important consideration in the present case because passengers who are re-routed on a flight that arrives more than four hours earlier than their originally-booked flight experience the same damage as those who are rebooked onto flights that arrive more than four hours later than their originally-booked flight, as long as their flight also departed more than four hours earlier than their originally-booked flight was scheduled to depart. That is, both types of passenger experience the inconvenience resulting from a loss of time – one experiences this loss of time due to boarding the aircraft early, while the other experiences it due to departing the aircraft later, but both experience the same loss from the same cause.

22. The CJEU has, however, emphasised that it is precisely this inconvenience for which Regulation 261 is intended to provide compensation. It would, therefore, violate the principle of equal treatment to grant passengers in the first group less compensation than would be granted to passengers in the second group.

23. As a result, I find that the Airline may not reduce compensation to passengers who are owed compensation under Article 7(1)(c), but are rebooked onto flights that depart more than four hours earlier than their originally scheduled flight and arrive more than four hours earlier than their originally scheduled flight.

24. Consequently, the Airline must pay the Passenger compensation of €600.00 for the cancellation of the Flight.

25. However, it should also be emphasised that Article 13 of Regulation 261 expressly states that “no provision of this Regulation may be interpreted as restricting [an Airline’s] right to seek compensation from any person, including third parties, in accordance with the law applicable”. As a result, nothing in this decision prevents the Airline from attempting to recover from Rolls Royce the compensation that the Airline is legally obligated to pay to the Passenger.

26. In view of the above, the Airline must pay the Passenger compensation of €600.00.

Decision
The Passenger’s claim succeeds in full.
I direct the Airline to pay the Passenger the total sum of €600.00.
The conversion rate from Euros to Pounds Sterling shall be in accordance with the exchange rate published on the European Central Bank website on the first working day of the month in which this decision is issued.

corporate-wage-slave

This is interesting, and if were BA I would be settling these claims before going to CEDR. The logic deployed is immaculate, but it simply isn't what is in the Regulation, moreover I do see some justification why these scenarios could be treated differently - though I better not cloud the issue with that now. In plain person's language the Regulation has treated early arrivals as less painful than late arrivals but this adjudicator has said that's not equal treatment. This may be sustained in a higher court given the principles deployed. Either way BA may be walloped for more than it thinks if it's not careful.

FlyerTalker39574

seagull88

Exactly, we claimed €300 and was awarded €600.

PAL62V

Can someone advise as to how BA makes payment? Do they credit the card used to purchase he original flight or do they contact the passenger and ask for bank details?

corporate-wage-slave

For non contested EC261 claims, BA do definitely reach out to ask for bank details. For CEDR I think it is the same but can someone successful with CEDR in 2018 please confirm?

The exception is downgrades due to BA's rather mixed approach - that tends to go via the payment used on the ticket, which may or may not be appropriate.

seagull88

Glad to see you received the same result for a very similar case to mine! Well done team effort.

Often1

You may also file in a court (small claims) rather than using the MCOL process to get there. Telephonic hearings are routine for these matters, so for the cost of a Skype or other free/cheap VOIP service, you may present your case without having to fly to the UK.

sgd

For a recent case that CEDR found in my favour I put bank sort code and account number in the comments of the CEDR case and BA did a transfer.

NWIFlyer

With respect, this is not entirely true and is certainly highly misleading.

The mediation service is part of the small claims/MCOL process, but it is not guaranteed to succeed because:

1. Both sides have to agree to participate
2. It’s only 60 minutes in length
3. If agreement is not reached by the end then the case proceeds to court

Any company worth its salt, recognising it has a plaintiff living outside the UK, would be mad not to force the issue to court to make life as difficult as possible. Don’t subsequently turn up in court? The chance of winning your case diminishes rapidly, and you even run the risk of having costs awarded against you - highly unusual at small claims, but not impossible.

It is emphatically not a judge listening to the arguments and making a judgment - the call is hosted by an independent, professionally trained mediator who may well have absolutely no idea about the intricacies of the law. I would argue that they would have little chance of resolving a dispute revolving around whether an airline had taken “all reasonable measures”.