Delayed flight - help request

[Mattorigus]

Hi All,

 

A good friend of mine linked me to a thread on this site regarding flight compensation for when a flight was significantly delayed. To give you the back story my girlfriend and I traveled to Denver last month on US Airways (November 2013) and was delayed 7 hours in London Heathrow due to a technical fault, because of the delay we missed our connecting flights and the airline put us up in a hotel for 6 hours before we could be put onto another plane to get to Denver. We arrived at our final destination 14 hours later than we were suppose to. While we were in the US i received an email where the airline mentioned it was giving us 2 vouchers for $600 as a gesture of good will because of the delay. I didn't respond to the mail because I thought I would deal with this after I got back to the UK. On the way back we found ourselves on another delayed flight (only 3 hours this time) and when we finally got back US Airways had manged to lose my suitcase (although to their credit they did get this back to me a day after I arrived in the UK). Understandably I don't want to use their airline ever again as the money I saved using that option was not worth the time I lost by everything that went wrong. I found a template and some information on money saving expert and contacted the airline using their template to request the €600 for each passenger. I received a response from them stating that they didn't have to pay any compensation because they did all necessary checks that they are required to do and that the problem was out of their control.The exact mail I sent to them with our personal info removed can be found here: -

 

[11/12/2013]

US Airways

US Airways Corporate Office

 

Dear Sir or Madam,

 

Re: Compensation claim for delayed flight

Booking reference: [Removed]

 

I am writing regarding flight [uS 729] on [November 26 2013] from [London Heathrow] to [Denver CO USA] with the scheduled departure time of [12:05PM]. This flight arrived [14] hours late at [Denver CO USA].

 

The judgment of the Court of Justice of the European Union in Tui & others v CAA confirmed the applicability of compensation for delay as set out in the Sturgeon case. As such, I am seeking compensation under EC Regulation 261/2004 for this delayed flight.

 

The passengers in the party were [Removed].

 

My scheduled flight length was [7500 km], therefore I am seeking [€600 (£505)] per delayed passenger in my party. The total is [£1010] for all passengers.

 

 

 

I look forward to a full response to this letter within 14 days. If I do not receive a satisfactory response I intend to pursue my complaint further, which could mean taking it to court.

 

Yours faithfully,

Matt

 

The response I received was this: -

 

Dear [Removed]:

 

Thank you for writing to US. I'm sorry your flight to Philadelphia was delayed.

 

We regret that your Flight 729 from London on November 26th, 2013 was delayed. As you may know this flight did not operate as scheduled due to an unexpected mechanical situation. Please accept our apology for the inconvenience and impact on your travel plans this irregularity caused. It is never our intent to create difficulties for you, or any of our passengers, and appreciate that this disruption was a frustrating experience.

 

Further, we thank you for giving us the opportunity to respond to your request for compensation based on European Regulation 261/2004. Under EU regulations, carriers are not required to provide EU compensation in the event that the carrier performed all necessary maintenance checks and took all steps feasibly viable to prevent a mechanical cancellation or delay. We can assure you our aircraft undergo all required maintenance; however, despite the best preventive maintenance, some malfunctions cannot be predicted. Our records indicate all required measures pertinent to this flight were taken; therefore, no compensation under the EU Regulation No. 261/2004 is due.

 

I can see this flight’s delay caused you a major inconvenience. To reiterate our apology for the mechanical delay and as an invitation to try US again, we did issue two transferable $600.00 Electronic Travel With Us Vouchers (E-TUV). Your E-TUV is valid toward the purchase of travel on US Airways. Please be advised the E-TUV is not valid with Internet bookings and must be redeemed within one year from the date of this correspondence. In addition, please take a moment to read the terms and conditions listed below to receive the full benefit of this compensation. When you are ready to make your future travel arrangements, please call our Reservations Department at 0-845-600-3300 or 800-428-4322 and provide the E-TUV code listed below. The customary ticketing fee will not be assessed at the time of booking with our Reservations Department.

 

The E-TUV code is:

[Removed] $600.00

[Removed] $600.00

 

Based on your comments, we could have done a better job of assisting you, and I assure you the necessary steps will be taken to help prevent a recurrence. We know that you have many choices when it comes to traveling, and we thank you for choosing US Airways.

 

Sincerely,

 

 

Greg Avis

Representative, Customer Relations

US Airways Corporate Office

 

 

After reading your sticky thread about this I did notice the following was posted on the sticky, post number 5 -

 

1. Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. The Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, is not decisive for the interpretation of the grounds of exemption under Article 5(3) of Regulation No 261/2004.

2. The frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded.

3. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)© and 7(1) of that regulation

 

The last part (listed as 3) suggests to me that they are still responsible to pay compensation, however I this is the first time I have ever had a possible legal problem and I wanted to make sure I understood what has been written correctly, and secondly ask if i can use the above quote, how do I need to reference it and is there a proper link to a page with this ruling that I can link to directly?

 

Sorry to pester your board with stuff like this, however I figured the best course of action was to ask some guys in the know for advice before I responded to their email.

 

Kind Regards,

 

Matt

[sequenci]

Hey Matt,

 

Not sure if you've seen this, but if you haven't it sure is usefu (final page)l:

 

http://ec.europa.eu/transport/themes/passengers/air/doc/neb-extraordinary-circumstances-list.pdf

 

- Seq.

[ericsbrother]

Ask them what exactly was the mechanical problem as airlnes tend to use this when it is something that was within their powers to deal with but hope that by not giving the entire story, dont have to pay out.

[Mattorigus]

Hi all,

 

I got a reply after i requested the info for the fault which the airline has refused to supply to back up their claim that the fault was out of their control. the mail I received can be seen here: -

----------------------------------------------------------------------------------------------------------------

Dear Mr X:

 

Thank you for your recent correspondence to Customer Relations at US Airways. We appreciate another opportunity to respond to your concerns.

 

We regret our original attempt to resolve this issue was not to your satisfaction. We are not trying to diminish the unsatisfactory incident experienced. We recognize you expect reliable, convenient service and are truly sorry for any inconveniences incurred. Again, please accept our apology for the delay of flight 729 on November 29, 2013. While we understand your viewpoint regarding this delay, under EU regulations, carriers are not required to provide EU compensation in the event that the carrier performed all necessary maintenance checks and took all steps feasibly viable to prevent a mechanical cancellation or delay. We can assure you our aircraft undergo all required maintenance; however, despite the best preventive maintenance, some malfunctions cannot be predicted. Our records indicate all required measures pertinent to this flight were taken; therefore, no compensation under the EU Regulation No. 261/2004 is due. The vouchers provided were issued as a goodwill gesture for any possible inconvenience that was experienced.

 

In December 2008, by its decision in Wallentin-Hermann v Alitalia, the European Court of Justice limited the ability of air carriers to utilize the exception provided in Article 5(3). However, the Court did not rule out an air carrier’s ability to utilize Article 5(3) when, for example, and air carrier had not only undertaken all routine maintenance, but also had encountered a maintenance problem that could not have been avoided by measures that are technically and economically viable for the air carrier concerned.

 

Additionally we understand that US would be responsible for demonstrating that any mechanical delay or cancellation is a result of unforeseen circumstances; with this in mind though we must inform you that any records relating to the maintenance of our aircraft are considered internal and confidential and cannot be provided to our passengers. Do please be assured that US complies with all safety regulations and does provide documentation both on request and when required to the appropriate governing agencies.

 

Thank you for allowing us to explain our position and your understanding in this matter.

 

Sincerely,

 

 

Karl Hiller

Representative, Customer Relations

US Airways Corporate Office

-------------------------------------------------------------------------------------------------

 

So looking at this, where can I go from here, without seeing a detailed report on what the fault is I have no idea if their defense makes them exempt from paying compensation. As for the bold part above, does anyone know if this is true or is this just something that they are trying to get me to back off of the case?

 

Any help to plan the next move would be appreciated!

 

Kind Regards,

 

Matt

 

PS the mail I sent to them can be found here: -

 

 

 

 

Dear US Airways,

 

Thank you for your response for this issue. I would like to request further information about the nature of the fault as you are aware that European Regulation 261/2004 does state the following : -

---------------------------------------------------------------------------------

1. Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. The Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, is not decisive for the interpretation of the grounds of exemption under Article 5(3) of Regulation No 261/2004.

2. The frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded.

3. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)© and 7(1) of that regulation.

---------------------------------------------------------------------------------

Technical faults do not count as extraordinary circumstances unless it can be proven in court that they meet the following criteria unpredictable, unavoidable and external.

 

I want to see the full details of that defense in writing. The ECJ ruling in the cases of Wallentin-Hermann v Alitalia (2008 ) and Sturgeon v Condor/Bock v Air France (2009) made it clear that the airline has the burden to prove this defense, and that vague, unsupported explanations such as ‘technical faults’ are not acceptable, since these are neither extraordinary nor in many cases beyond reasonable control.

 

I look forward to your response within the next 14 days.

 

Kind Regards,

 

Matt

[ericsbrother]

You can go to court, a small claims court summons for breach of contract and breach of regulation may well force their hand as to whether they do meet the criteria for an exception. they will most likely already know whether it does or doesnt and as they are guarding the reason I wouldoffer better than balance of probability they will be forced into paying up. It is not just you, they will have to pay everyone on the flight so you may well get your money without an admission of liability and an attempt at a gagging clause as well.

[FairWorldCitizen]

Dear Mattorigus,

Over the last months I have fighting against an airline to recover a compensation as defined by the EU regulation, so I've caught quite a number of useful information on these types of airline problems.

 

If I have understood well, you have 2 complaints:

1) about the flight from UK to US, where you experienced a total delay of 14 hours.

2) about the return flight where you experienced a 3 hours delay.

(not a good travel experience, really!)

As it a 7500 km journey it will fall under Type 3 flight. The compensation part of the regulation will apply to your flight if the delay was more than 4 hours.

What I would think in your place is:

For 1) the company has offered 2 vouchers of 600 USD (440 EUR). I believe you can consider yourself very lucky for receiving this. Would it be possible to get back to the company and explain that these vouchers do not reach the compensation as per regulation, and that you expect a better gesture?

 

For 2) You cannot claim the compensation. However, you could certainly request a gesture of goodwill, because a 3 hours delay is already huge, and since you experienced a problem in both flights. Based on the immediate action taken by the company after the first flight problem (vouchers), they might be open enough.

 

If you really want to proceed with a court claim without negotiating a bit more, then the following might be useful

- As the company has proposed a compensation of 880 EUR instead of 1200, my opinion is you should claim for the difference not the whole. Otherwise a court would think you are not presenting all the details.

- Court costs will be lower if you request 320 EUR.

- You could check whether other passengers have logged a similar complaint on this flight, if you just submit the case to a specialized lawyer.

- The airline would never provide you with details of the technical problems. However, the regulation has been enforced which makes that airlines can only defend special technical cases. Therefore there is a good chance that they wouldn’t be able to justify the fault and prefer to settle the claim.

Hope it helps.

[Mattorigus]

@ FairWorldCitizen

 

hi there, thank you for your advice!

 

The issue I have with their vouchers offer is that I have to fly on their airline again, and based on my past 2 experiences (there and back again) this is not something I would want to do. Because of this I don't really want the vouchers that they have sent, from what I can tell in the regulation is that they need to pay me cash and I do not need to accept vouchers as compensation. It should be noted that they have not offered any cash as compensation, just 2 flight vouchers for $600 USD and they put it forward as a gesture of goodwill as opposed to compensation, they can have the vouchers back if this is something that needs to be done to be compensated.

 

@ ericsbrother

 

I am thinking this is my best move, this is the only way that I think I will see any of the compensation I believe we are entitled to. I will do some reading on this site to learn about how to file for small claims court and what I should do to prepare myself for it. In your message you mention a breach of contract, which contract are you referring to?

 

Thank you for the help guys its all very much appreciated!

[FairWorldCitizen]

Yes Mattorigus, I would certainly return the vouchers saying that given you are not interested in using their services anymore you are not accepting this as a compensation. The company would use the vouchers as a element for responding to the claim so you stay covered and don't hide anything.

 

Arrfff travel.... I got a 1h30 Eurotunnel delay (on a 30 min journey) and a 1h30 delay yesterday on a 2h flight!

 

Happy Christmas everyone!

[Mattorigus]

Yes Mattorigus, I would certainly return the vouchers saying that given you are not interested in using their services anymore you are not accepting this as a compensation. The company would use the vouchers as a element for responding to the claim so you stay covered and don't hide anything.

 

Arrfff travel.... I got a 1h30 Eurotunnel delay (on a 30 min journey) and a 1h30 delay yesterday on a 2h flight!

 

Happy Christmas everyone!

 

Ok I have read through the info I can find on the site and want to check with you to make sure I understand the process of taking US Airways to small claims court, if I miss something or have made a mistake please let me know!

 

Step 1 - I send a letter before action (LBA) to US Airways telling them that if they don't reconsider their stance within 14 days I will file a case against them in small claims court with no further notice, I also mention in this letter that I do not accept the vouchers as compensation at all and ask them once more for the money I believe they owe me (should I or do I need to mention that it will be small claims court that I file with?)

 

Step 2 - I file the case online, making sure that I state that I am a private bringing a case against an institution and fill out the forms on their website.

 

Step 3 - I send a Particulars of case (POC) recorded delivery to their office which states my issue with them, how much I believe they are liable for and what evidence I will bring against them in court.

 

Step 4 - If they do not respond to the case I file for judgement immediately, if they do I await further instructions from the Judge on what to do next.

 

Step 5 - Go to a hearing if it comes to that and present the evidence (which in my case is boarding passes, all email correspondence and a photo we took in the airport of the gate with the time of departure showing at that point we were delayed 4 hours).

 

Is this all correct? am I missing something else I need to do before I file the case?

 

Thank you all so much for your help and Merry Christmas!

[FairWorldCitizen]

Dear Mattorigus,

 

The small claim path of justice, its "workflow" and the available online actions on Money Claim Online are explained by different organisations. Civil Council Justice (judiciary.gov.uk) has published a long document that you should read (search for "a guide to bringing and defending a small claim"), and also you may find specialised people to advise you for free within the Citizen Advice Bureau.

 

Since you have already exchanged letters with the airline, you might not need to log POCs, it depends whether you have enough space to describe the problem clearly (with or without POCs, a judgment would require supporting documents/evidences to be sent later, someone correct me if I am wrong).

 

If the airline doesn't respond immediately, or doesn't request the additional amount of time for response, you would request judgement by default, which means you win the case. It is however unlikely.

 

The most likely situation is that they either reject the whole claim or part of it. However, they would need to provide evidence that they have fully complied with the regulations.

 

In addition to photographies, there is a useful service to support evidence of delay or cancellation: flightstats.com.

 

Best regards.

[Lunchbunch]

Hi,

 

I am in exactly the same position that you were in and I am very interested to know what course of action you took and whether you were successful?

 

Best Regards

 

Chris