offvoice

Hello,

I tried to look around but couldn't find a definitive answer to my question.

I took a CDG-ZRH-JNB-WDH flight with Swiss, all LX-coded, though the last leg was SAA-operated. This last leg was cancelled due to a strike in South Africa, and I was rebooked on British the following day. When landing in JNB, I had no service whatsoever, and was just informed I had been rebooked on a flight the next day, effectively arriving in WDH more than 24h later. I had to pay for a hotel in JNB for the night.

I reached out to LX, and they told me that according to "CE261/2004 Article 2b" I was not entitled to any kind of compensation or hotel refund since the flight was operated by South African airways, and that I should reach to them for compensation (in this case, I'm pretty sure nothing would happen). I'm not a frequent LX flyer (that actually was the first time flying with them for me), but I would assume that since they are the one that sold me the ticket, and that it was departing from France, which is a EU country, EC261 would apply (I appreciate that it was due to a strike, however this was not the basis for declining my claim). I read in FT that LX is notoriously known to decline those claims, however, I would appreciate any advice on how to handle this.

Thank you for any support!

craz

OP did you approach SAA and ask for a hotel when you got to JNB? Unfortuantely since the problem flight was to or from the EU EU rules dont apply (eg just like fly a US Carrier to the EU from The US EU rules dont apply, if it was an EU carrier they would).

I would contact SAA and try and get the hotel refunded, but they may bork if you never went via their CS counter

Friends that went on their own here in the US ended up getting a voucher that was good off a tkt from said carrier and usually only on said carriers flight w/o any other carrier on the PNR. Since the carrier doesnt fly into where they live it was worthless to them. IThey ended up saying thanks but no thanks and asked if they could at least be refunded what the cost of a hotel would cost the carrier (alot less then what they paid) and they received said check) Not saying SAA will do any of those. But LX has nothing to do with what happened and arent responsible

Often1

Even if EC 261/2004 did apply, the flight was cancelled due to a strike and the entire EU analysis of which types of strikes are "extraordinary circumstances" does not fit neatly into the law of a non-Member (EU) state. Thus, it makes no sense to make a claim when it will still be denied. The law on connection delays has all focused on clear scope with a question of how far downstream the Regulation applies.

I am very surprised that SA refused to issue hotel and meal vouchers and, while it is water under the bridge for you, for the benefit of others, I would have asked for a manager.

As it stands, this ought to be covered by your travel insurance and I would submit the meal and food vouchers along with an explanation that you asked SA for vouchers (or reimbursement) and were refused.

Fabo.sk

There is yet hope.

Read this press release and the judgements it links to. You could then send a note to Swiss, that according to this judgement, they can be held responsible for compensating on a delay or cancellation of a flight of another carrier, under their codeshare. Make it clear that you would be following further legal actions in France, as it is a valid jurisdiction, being the country of departure, and bound by precedent in EU court system.

offvoice

Thank you everyone for your advice. I will reach back to Swiss with legal action and see where that leads.

I understand strike is not a valid reason for compensation, but it was not the ground for denial. From where I stand, I entered a deal with LX to bring me from CDG to WDH. Whatever happens in term of codeshares etc, should not be the PAX concern. I paid LX to bring me from A to B and they didn’t deliver (no matter the circumstances) and didn’t provide any assistance - I still think they should be liable one way or the other. (I’m playing stupid but still). Either way, first and last time with LX. Will report here if anything new!

LondonElite

EC261 does not apply as this was an extraordinary event. It is up to the operating carrier to provide duty of care to you, but since this was a non-Community route I doubt you will get anywhere with this argument. This has nothing to do with LX and taking an attitude not to fly that airline because a codeshare partner got hit by a birdstrike is an extreme form of biting off your nose. Contact your travel insurer instead.

warakorn

What are you talking about?
Of course EC261/2004 applies - even in extraordinary events.
Airlines may deny to pay article 7 compensation. However, airlines cannot get around reimbursing for overnight/food costs. Moreover, airline need to honor article 8 (free reroute).

not true! see below...

In this case EC261/2004 + all ECJ judgements apply all between CDG and WDH.
The key is that the flight started in the EU (in this case CDG). The carrier that operated the last segment from an EU airport is responsible for ensuring EC261/2004 rights all the way to WDH. There was a recent ECJ judgement on that. CDG-ZRH was operated by LX, hence LX is liable for the hotel and reasonable food costs in JNB.
No one has forced LX to offer such a routing CDG-WDH. LX elected by themselves to sell such a routing.

LX cannot ignore the ECJ judgement, because Switzerland is not under the jurisdiction of the ECJ.
The point is that CDG is part of the EU and therefore under the jurisdiction of ECJ.

I would continue pushing LX to refund the hotel costs.

Even if the insurance contract covers for such damages, the insurance would send its customer to LX.
LX is obliged to pay.
This is according to the ECJ judgement C-502/18 "CS and Others v České aerolinie a.s.":
http://curia.europa.eu/juris/documents.jsf?num=C-502/18

ajeleonard

The only party to which you might have any recourse is SAA, for failure to provide duty of care. Even then, as others have pointed out, it is not clear cut since they are a non-EU carrier performing a non-EU flight, albeit connecting from an ex-EU itinerary.

Attempting to pursue Swiss is going to be a waste of your time and money. You opinions on their responsibilities are irrelevant, all that matters is the law.

LondonElite

Of course the duty of care provision applies, but this is to the operating carrier, not the ticketing carrier. It is not clear to me, nor from any of the judgements you quote, that a non-EU carrier operating a route wholly outside the EU, under a code-share agreement is responsible under EC261. I suspect, but don't know, that if such a carrier agrees to a code-share arrangement, they also accept their (minimal) responsibilities under EC261. Going after LX will be a total waste of time and money, and will not result in joy. The thing to have done was to secure a room from the airline at the airport. Now it is solely a travel insurance matter.

warakorn

Ok, lets get through the documents.

We are talking about EC261/2004:

Article 9 is triggered by the cancellation of the JNB-WDH segment:

Article 5

The judgement (C-502/18 "CS and Others v České aerolinie a.s.") reads:

What works for Swiss:
We are talking here about article 9 (right to care) that was broken. The judgement talks mainly about article 7. Thus, Swiss may argue that article 9 rights are not mentioned in the judgement.

What works against Swiss:
-> well, this judgement applies to CDG-ZRH-JNB-WDH routing.

-> which is SAA.

-> well, it states it quite clear. The passenger may pursue an EC261/2004 claim, which was caused by a non-EU carrier between two non-EU airports, against the airline which performed the first flight. The first flight CDG-ZRH was operated by Swiss.


I see the law on the side of the passenger. Moreover, the passenger may sue Swiss in French court, which is bound by ECJ decisions. This avoids any complex discussions whether ECJ-judgements apply in Switzerland or not. Further, it is cheaper to sue in France than in Switzerland.

Often1

The snippets which you have artfully created, omit that the caselaw relates to delay compensation and not duty of care. There is no authority for the proposition that the carrier operating the xEU flight is responsible for a duty of care to the passenger when what would constitute a duty of care was refused by the onwards (non EU) carrier. The reason for that lack of authority is that, quite shockingly, there is a world beyond the EU and in that rest of the world in this situation, the operating carrier would provide a hotel voucher for a stranded passenger mid-journey without the need of the nannies in Brussels.

Your supposition that OP's insurer will send him to LX is also misplaced. That may be your experience with your travel insurance policy. It is not the case for many policies which neither require the exhaustion of legal remedies nor interpret the vagaries of various different regimes, e.g. EC 261/2004.

Finally, it is far from clear that OP even sought a hotel from SK as he simply states that one was not provided. Does this mean that nobody shoved a voucher in his face or that he failed to raise the issue and was then denied?

warakorn

Thanks for pointing out again what I have already pointed out.

But do we agree that (in case) if JNB-WDH would have cancelled due to a technical reason, then Swiss would have been obliged article 7 compensation?

I fail to see why the ECJ (or a lower court in the Paris proper) would see the case differently when we not talk about an article 7 claim, but we talk about a article 9 (duty of care) or article 8 (free rebooking) claim.

Again, from your line of I fail to see why such an authority is granted by the ECJ for article 7 compensation, but the authority is not granted for article 9 duty of care claims.
I mean, we do not have to touch an laws of Switzerland, South Africa or Namibia for that case.