Safety before punctuality: Bird strikes constitute extraordinary circumstances

The Facts of the Pešková Case

The case regarded a claim for compensation due to the delay of a flight in August 2013 from Burgas, Bulgaria to Ostrava, the Czech Republic. The aircraft, which was operated by Travel Service a.s., was scheduled to fly the following route: Prague – Burgas – Brno – Burgas – Ostrava.

On the first flight (from Prague to Burgas), a valve failed and had to be repaired. This repair took 1 hour and 45 minutes. On the second flight (from Burgas to Brno), the bird strike occurred thereby causing further delay. Thus, there were two events that jointly caused the delay.

After the bird strike, a technical team examined the aircraft thoroughly, but no damage was found. However, at the request of the owner of the aircraft, the air carrier had their own technician from the Czech Republic fly in to have a second opinion. He did not find any damage to the aircraft either. The aircraft then continued onwards from Brno to Burgas and from Burgas to Ostrava; it was on this fourth flight that Ms. Pešková and her travel companion flew.

Due to the accumulated delay following the events on the first two flights, the last flight was in total delayed by 5 hours and 20 minutes.
The passengers then filed a claim of 250 EUR each against the air carrier as compensation for the delay pursuant to Regulation 261/2004. The claim was filed with Prague’s 6th District Court who found in favour of the passengers. However, the ruling was appealed and after having been sent back and forth in the Czech legal system, it ended up again with Prague’s 6th District Court which then submitted a number of questions to the CJEU.

The case was decided by the third chamber of the CJEU, and the court was chaired by the president of the third chamber, Mr. Lars Bay Larsen, a former judge of the Danish Supreme Court.

Bird Strikes Constitute “Extraordinary Circumstances”

In order to decide whether a given event is an extraordinary circumstance, the court applied a three-stage test and thus considered whether a bird strike may be said to be an event, which is:

• Not intrinsically linked to the operating system of the aircraft; and
• by its nature or origin not inherent in the normal exercise of the activity of the air carrier; and
• outside its actual control

The answer to these three questions was affirmative, and on this basis, the court stated that a bird strike qualifies as an extraordinary circumstance.

Moreover, the court stated that it is immaterial whether a bird strike has actually damaged the aircraft. The court specifically stated that when applying regulation 261/2004, it is important that air carriers are not encouraged to refrain from taking all relevant safety measures by prioritizing the maintaining and punctuality of their flights over the objective of safety. Safety comes first.

Air Carriers Must Take Reasonable Measures

The concept of “reasonable measures” is vague, but the premises of the ruling clarify the concept a little bit.

In order to avoid a claim, the air carrier must prove that the extraordinary circumstance could not have been avoided even if all reasonable measures had been taken. The measures that must be taken (besides from qualifying as “reasonable”) are such measures that are likely to reduce or even prevent the risk of the extraordinary event.

Which “Measures” are Relevant?

Firstly, the court stated that only those measures which can actually be the air carrier’s responsibility must be taken into account. The court further stated that measures which are the responsibility of other parties, such as, airport managers or traffic controllers, should be excluded. It is not entirely clear how far this reasoning goes; what would e.g. apply in relation to a measure that sometimes - but not always - is subcontracted by the air carrier to a third party?

The line drawn by the court is not clear here; the key question as to whether a certain measure should be considered taken or not is: Whether the air carrier at the technical and administrative levels under the given circumstances is actually in a position to take certain measures - directly or indirectly.

“Reasonable” – What Does That Mean In Practice?

Secondly, the court also stated that in order to decide whether a certain measure is “reasonable”, one must consider whether the measure in question would require the air carrier to make intolerable sacrifices in the light of the capacities of its undertaking.

This criterion raises some questions which are difficult to answer from a legal point of view. E.g. how little profit – or how big a loss – should an air carrier be expected to accept, before the financial sacrifice may be considered to be “intolerable”?

Different Air Carriers, Different Requirements?

Both in relation to defining which measures are relevant and in relation to defining when a measure may reasonably be required to be taken, the court seems to apply a subjective view; i.e. a different “level” of measures may be expected from different air carriers, depending inter alia on the individual air carrier’s financial capabilities. How this should actually be applied is up to the national courts of each EU member state to decide.

The court calls this concept of reasonable measures “an individualized and flexible concept” - an expression that looks nice on paper, but which will probably as an unfortunate side-effect lead to a new wave of litigation from claims farmers, trying to test the boundaries of which measures that may reasonably be expected from air carriers.

For air carriers, this means that careful efforts should be made in order to be able to actually lift the burden of proof that it has taken all relevant reasonable measures – not an easy task, but on the other hand not an impossible task either. And if a relevant measure is not taken, air carriers must show that the measure in question would have incurred intolerable financial sacrifices.

Several Causes of Delay: Extraordinary Events Should Be Deducted

As mentioned initially, there were two subsequent causes of delay: One due to a technical fault and another due to a bird strike. Only the bird strike was extraordinary.

The court stated that in such situations the delay caused by the first event must be deducted from the total length of the delay at arrival in order to assess whether the delay is long enough for the passenger to be entitled to compensation, cf. Regulation 261 / 2004.

Extraordinary Events On Previous Legs of the Same Flight Also Count

Besides from clarifying that bird strikes are extraordinary, the decision also shows that an event on a flight which forms part of a series of sequential flights may qualify as an extraordinary event in relation to delays of the subsequent flights. This has been a matter of dispute in several cases, but the premises of the Pešková-case have now clarified this.

What Now?

The Pešková-ruling should mean an end to compensation claims in cases concerning delay of flights due to bird strikes. Such claims should be rejected, provided that the air carrier can pass “the reasonable measures test”.

The ruling also clarifies that where the route of an aircraft is divided into several flights, an extraordinary event on a prior flight shall be taken into account, when calculating the length of the delay of the subsequent flight(s).

We will of course keep our aviation clients informed about the further legal development of aviation law. But right now, we would just like to wish all air carriers our sincere congratulations with this important and long-awaited court ruling.