Ryanair - compensation was denied for a delayed flight - .EU261 Recital 15 ??

[IsMiseTusa]

Hi all,

 

I was wondering if anyone might have any information on the purview Recital 15 of EU261.

If Air Traffic Management Decisions should be counted as an extraordinary circumstance, how does relate to the the loss of a departure slot as a result of a delay on arrival?

If an airline has a 25 minute turnaround and arrives 30 minutes late, ATC as a result cancelling their departure slot, does the airline bear no responsibility?

 

As I understand it is not the responsibility of the court to look behind each decision.

 

Is there any existing case law on this, to anyone's knowledge?

 

Case C-388/22 raised interesting points before it was thrown out.

Regards.

[honeybee13]

Hello, welcome to CAG.

I think it might be easier for us to advise you if you tell us what's happened, please.

Best, HB

[IsMiseTusa]

Thanks for the welcome!

 

I am considering entering a dispute with Ryanair after my compensation was denied for a delayed flight. I am located in Ireland, but anything relevant should help me. I will describe the aircraft's operations that day for clearer understanding.

 

Flight #1: Departs Dublin airport for Amsterdam at 11:55 (15 minutes late). Takeoff at 12:39 (59 minutes late). Arrives at 14:02 (47 minutes late).

Flight #2: Departure slot was adjusted at 12:18, from 13:40 to 14:20, presumably as a result of Flight #1 delay in taking off. Slot for 14:20 was eventually cancelled at 14:18. Departs at 14:49 (1hr 9min late). Fails to land when approaching Dublin Airport. A KLM aircraft flying the same route landed exactly one minute after the failed landing. Diverts to Belfast landing at 17:02.

Flight #3: Flies from Belfast back to Dublin, landing at 19:39. Departs Dublin Airport at 20:36 for my airport.

Flight #4: My flight arrives at Dublin with a delay of 4hrs 15min.

 

I am considering pursuing compensation on the basis that not all reasonable measures were taken by the airline in preventing my delay. I believe I can clear the weather related circumstances causing the failed landing as not being extraordinary and not affecting my flight, with the diversion decision being within the control of the airline etc.

 

I am more concerned about my case re ATC slot restrictions, although if my flight calculations are correct without them I would still be left with a delay of 3hrs 6min. I certainly don't believe all reasonable measures were taking in preventing my delay.

 

Many thanks for any help or guidance.

[dx100uk]

thread title updated

 

dx

 

[Kyosanto]

Were you on all those 4 flights, or just flight #4? It's not very clear. Have you been researching the whole history of your aircraft?

The only relevant information should be the reason of the delay of YOUR flight, or, if you were departing from an outstation, the reason of delay for the flight from hub (DUB) to said outstation. Everything else should be ignored as the airlines needs to have enough contingency in place from their hub to adress such operational issues.

I don't have a past judgement for you in mind sorry

[Kyosanto]

If I'm correct that's good news for you because an aborted landing is generally a good cause to deny compensation.

Aborted landings and diversions are done for safety reasons; you wouldn't want an aircraft to proceed with a dangerous landing.

The fact that a KLM aircraft on same route landed safely is irrelevant. Windshear events etc. can happen to individual aircrafts.

Edited July 15, 2023 by Kyosanto

[Kyosanto]

Finally, note that the only compensation that they are allowed to deny you (if they can) is the EC261 art 7 €250 flat rate.

You are fully entitled to duty of care compensation so any meals while waiting, transport costs due to delay, hotel nights if you needed one, unrecoverable costs (for example non refundable train tickets) are still fully owed to you regardless of delay reasons.

Edited July 15, 2023 by Kyosanto

[IsMiseTusa]

Hi there, apologies if it wasn't clear. I was a passenger on Flight #4. The question was in relation to Recital 15 as it states:

"Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations."

I am then left with a problem, as extraordinary circumstances do exist: an ATMD led to a delay with Flight #2. However, there was a prexisting delay and a subsequent delay, which I believe alone amount to a delay of above three hours. Additionally, Ryanair's original departure delay and the short turnaround time was the real cause for Flight #2's delay, not the ATMD decision which was adjusting to Ryanair's delayed schedule.

The comments regarding the hub are very useful in relation to all reasonable measures, thank you for them. Perhaps it could be claimed it was an entirely business decision to continue to use the already delayed plane that had diverted to Belfast to travel to back to Dublin (empty of passengers who were bused to Dublin), then onwards to the outstation.

If it was a windshear event that effected the diversion, that might make things a little more difficult. It is precedent through Irish court rulings that for an event to be "extraordinary", the event by its nature or origin is not inherent in the normal exercise of an airline. I would argue then: Firstly, it did not affect my flight, and under Recital 14 re meterological conditions it specifies "flight concerned"; Secondly, such events are inherent in an aircraft's operation; Perhaps thirdly the decision to divert was within the airline's control as Dublin Airport continued operation, and as such they do not pass the required 'all reasonable measures taken'.

Thanks for all the info. Sorry for the mass of text, trying to solidify this as best as I can!

Edited July 15, 2023 by IsMiseTusa

[FruitSalad1010]

It might be a sticky wicket to argue that windshear procedures form part of the normal exercise of an airline. The number of windshear go-arounds compared to the number of uneventful approaches to land will be miniscule and therefore arguably not part of the normal exercise of the airline.

The fact Dublin Airport remained open has no bearing on whether all reasonable measures were taken. If there was not sufficient fuel onboard to make a second approach and divert safely then to divert is the only real safe decision following a windshear go-around and even if there was sufficient fuel onboard the Commander can take any action they deem necessary to ensure the safe outcome of the flight.

To clarify airlines cannot dictate with totality the fuel and operational decisions of the Commander, their autonomy is protected by the Air Navigation Order.

That is at least how I would argue against some of your points if I was representing the airline.

Edited July 15, 2023 by FruitSalad1010

[IsMiseTusa]

Thank you for raising these points, I appreciate them and their trickiness to counter. I will do my best to argue against them after some research with the following threefold defence.

With regards to wind shear, I would argue that windshear is an inherent risk in the landing of an aircraft. Air carriers, as a matter of course, must deal with wind phenomena, and as such have sensors included on their aircraft to detect such. Though it is perhaps unexpected: "The Court was satisfied that an unexpected event need not necessarily be classified as extraordinary circumstances, as such events, even though unexpected, may be considered to be inherent in the normal carrying out of the activity of the air carrier concerned."

If the above fails to satisfy, and it is classd as extraordinary, then there is still the applicability of a prior extraordinary event on a subsequent flight to consider. As an established precedent with regards to EU261:"When terms appear in a provision which constitute a derogation from a principle or rule for the protection of consumers that provision is interpreted strictly". Recital 14 offers the line: "meteorological conditions incompatible with the operation of the flight concerned". I would argue a strict, passenger-oriented interpretation (required by the court) excludes meterological occurences which affected the aircraft prior to the passenger's flight (as is the case here).

Additionally an airline: “must establish that, even if it 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.”

Having perused similar cases, spare aircraft at a hub and even contracting third-party aircraft seem to pop-up as being within reasonable measures, and understandably so considering the language of the above. Certainly it would have been logical to use an alternate plane to transport those of Flight #3 and Flight #4 instead of relying on a diverted plane, which knowingly would have been unable to fulfil its timely obligations 7-8 hours before my scheduled departure because of even earlier delays.

I hope all that sounds logical!

Edited July 15, 2023 by IsMiseTusa

[IsMiseTusa]

To clarify my point re wind shear being inherent, I would argue that extraordinary would mean a freak or wholly unexeceptional event, i.e. volcanic eruption. From Evaluating the Effect of Turbulence on Aircraft During Landing and Take-Off Phases : "During any given year, wind shear occurs thousands of times at airports around the world, affecting the arrival and departure of aircraft."

[Kyosanto]

I'd suggest giving up the windshear point, not onky youbare going against safety here but also it is definitely exceptional enough in the eyes of art. 7 (such as storms, which are also considered exemptions). Before that I actually made it up as an example and we don't know exactly what happened to your aircraft. Or do we, did Ryanair state the actual reason? The birden of proof is on them.

Your 2 other points are spot on, Ryanair should have enough aircraft available at it's DUB base to plan for delays and contingencies, and if it doesn't then it cannot argue that all reasonable measures have been taken, since delays are not unforseeable.

Try to see if you can find a judgement where the problem flight was 3-4 flights ahead of the disputed flight. I'd wager that there isn't one, for the above reason, but would be curious to know.

[IsMiseTusa]

Thanks for the reply, very helpful.

Only information provided was "bad weather" and a two-week old YouTube video referencing an old storm... Wind shear seems the most plausible explanation considering it was a weather based go-around, to my knowledge. I will drop any specific weather related points, and with me then I can build on the "flight concerned" and reasonable measures.

I'll certainly have a look for judgments, and I'll come back with relevant updates if they pop up. Thanks again for all the help everyone.

[Kyosanto]

Ok, good to see they invoked "bad weather". I explained roughly in another thread (linked below) how to use the web to grab and decode METAR data. I suggest you do this for DUB airport and your airport for that day for the hours preceeding your flight. Whilst it's not foolproof it will give you a good idea already whether the weather was indeed extraordinary or close to it.

 

 

 

[Kyosanto]

I have stumbled upon this previous judgement from a German court, which unfortunately is not good for passengers:

EUR-Lex - 62019CJ0826 - EN - EUR-Lex

EUR-LEX.EUROPA.EU

Quote In the light of the foregoing, the answer to the fifth question is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that, in order to be released from its obligation to pay compensation to passengers in the event of long delay of flights in arrival, an operating air carrier may rely on an extraordinary circumstance which affected not that delayed flight but a previous flight operated by that carrier using the same aircraft at aircraft turnaround three flights back in the rotation sequence of that aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the long delay of a subsequent flight in arrival, which is for the national court to determine, taking into account, inter alia, the way in which the aircraft at issue is operated by the operating air carrier concerned. So the airline can use an extraordinary delay 3 flights back to deny compensation, but only if there is a direct link, for the court to determine taking in account the way the aircraft is operated... Little bit ambiguous and all that...

[IsMiseTusa]

I will consider that point. It might be argued the direct cause was the organisational decision of the airline to not procure additional aircraft to mitigate the delay.

On that point, if I am to proceed, it would certainly diminsh the "flight concerned" standing, although perhaps still pertinent.

Can anybody offer help on the "reasonable measures"? As far as I can determine, it seems to be focused moreso on avoiding the extraordinary circumstances in the first place. Sandra Dunbar v easyJet focuses on Recital 15, which is in the case of ATM decisions.

[Kyosanto]

Thank you for suggesting that case. It's a really good read. Will put the link here for those interested:

SANDRA DUNBAR AGAINST EASY JET AIRLINE COMPANY LIMITED (scotcourts.gov.uk)

 

As you've already seen from reading it, the onus is on the airline to prove that they did everything they could.

In that case EasyJet did try and go to great length to explain what each of their spare craft was doing that day, and why they didn't have another one left... which in the end did not convince the judge, and they were ordered to pay.

Knowing Ryanair, you're probably going to need to take them all the way to SCC to try and get that explanation from them. It certainly seems worth it.