B e f o r e :
| (1) SVEN ROSENBLATT
(2) MIRIAM ROSENBLATT (NEE MARENKE)
- and -
|BRITISH AIRWAYS PLC
Hearing date: 20th April 2016
Crown Copyright ©
This in turn had the effect of causing the Claimants to miss their connecting flight, again with the Defendant, from London Heathrow to Hamburg.
"3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken."
18. For my part, I observe that the word used in "extraordinary" rather than "unexpected", "unforeseeable", "unusual" or even "rare". Extraordinary to me connotes something beyond unusual. I might imagine a collision between two cars on a motorway as unusual but not extraordinary, whereas a collision between a car and a horse on a motorway would certainly be extraordinary.
19. I also observe that Mr Wynne told me in evidence that some airports have adopted measures to disperse birds, such as Manchester, which use a hawk. The implementation of measures to avoid bird strike appear inconsistent with the contention that they are an extraordinary circumstance. Mr Walthall complained, when I pointed this out during the hearing, that this would mean that the use of security measures to reduce or eliminate acts of terrorism might be seen as an admission that such incidents are not extraordinary. I disagree. Some events, though extraordinary in nature, may have consequences which are so devastating that steps need to be taken to protect against them, and terrorism falls within this category. The use of a hawk to avoid bird strike does not.
23. ……There are as many birds as there are human beings, they inhabit the skies at altitudes which are crossed by aircraft which are taking off or landing, they are moving (obviously) and each represents an opportunity for a collision with an aircraft which is unique to air travel, in the sense that such collision do not occur with ground and sea vehicles. They are inherently part of air travel as much the same was as aircraft wear and tear, or ordinary atmosphere hazards such a wind and rain. Bird strikes happen every day, in fact many times a day, and wold hardly be worthy of comment but for the delay which they cause. They do not fall within the same category as, for example, a horse colliding with a motor car, for the simple reason that our skies are populated by birds, whereas our roads are not populated by horses. That is not extraordinary and would hardly prompt an astonished exclamation from a bystander.
24. I am satisfied in this view by the fact that issues of foreseeability, lack of control and lack of blame, are not relevant. I have to ask myself whether bird strikes are an inherent part of aviation. While they might not have been half a century ago, when flights were few and far between, and a bird strike might have been practically unheard of, that simply is not the case in today's world where aircraft take of every few minutes and bird strikes occur multiple times a day (in respect of UK flights alone).
(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.
(15) 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.
However, the Defendant argues it remains significant that the Recitals appear to make a distinction between:
(a) The event or circumstance itself ; and
(b) Controls or steps that might have been taken to avoid the event or circumstance that is proposed to have been "extraordinary".
It submits that the examples at Recital 14 make this distinction clear. Save for the more opaque example of "unexpected flight safety shortcomings", "political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks" "and strikes that affect the operation of an operating air carrier" are all clear examples of events that one would not naturally associate as either within an airlines control or as inherent parts of their business.
Recital 15 seems to provide an even further gloss on the above distinction: the possibility that notwithstanding reasonable steps having been taken by the airline to avoid delays or cancellation, significant delays or cancellations were incurred owing to the "impact of an air traffic management decision" . That is, a step taken by an unconnected third party.
17 It is settled caselaw- that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. Moreover, when those terms appear in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must be read so that that provision can be interpreted strictly (see, to that effect, Case C336/03 easyCar-  ECR I-1947, paragraph 21 and the -caselaw- cited). Furthermore, the preamble to a Community measure may explain the latter's content (see, to that effect, inter alia, Case C-344/04 IATA and ELFAA  ECR I-403, paragraph 76).
It is therefore for the referring court to ascertain whether the technical problems cited by the air carrier involved in the case in the main proceedings stemmed from events which are not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control.
14. However regular, possible or even probable, they are outwith the operation and control of the relevant businesses.
40 It follows that, since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish, in addition, that they could not on any view have been avoided by measures appropriate to the situation, that is to say by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned.
41 That party 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.
In my judgment, it is plain from the Court's answer to questions 1 and 4 that when considering whether there are extraordinary circumstances, the Court has to focus on the source or events which cause the problem, not its resolution. A technical problem may indeed constitute an extraordinary circumstance provided it stems from an event which is not inherent in the normal exercise of the activity of the air carrier concerned and is an event which is outside the carrier's control.
Lord Justice Elias at Paragraphs 35 and 36 summarised the arguments and concluded:
35. In my view, the difference between the two arguments can, without undue distortion, be encapsulated in this way. The appellant is in effect construing the test as follows: "events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier because they are beyond its actual control." The key concept, on this test, is actual control; if the event is beyond control it is necessarily not inherent in the normal exercise of the activity. By contrast, the respondent is saying; "events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier and therefore are beyond its actual control." The defining concept on this test is the notion of what is inherent in the normal exercise of the carrier's activities; if it is not inherent, it is beyond control and vice versa.
36. In my judgment, a proper understanding of the inter-relationship between the two limbs should focus on the concept of "extraordinary circumstances" itself, the language used in Article 5(3). This requires that the circumstances must be out of the ordinary, as the Court noted in Sturgeon. As the CJEU recognised in paragraph 24 of Wallentin-Hermann, difficult technical problems arise as a matter of course in the ordinary operation of the carrier's activity. Some may be foreseeable and some not but all are, in my view, properly described as inherent in the normal exercise of the carrier's activity. They have their nature and origin in that activity; they are part of the wear and tear. In my judgment, the appellant's submissions fail to give proper effect to the language of the exception. It distorts the meaning of limb 1 in defining it by reference to limb 2, and thereby renders it superfluous. It makes an event extraordinary which in common sense terms is perfectly ordinary.
In this case, the exemption is sought by the "air-carrier" and not to an unconnected third party such as an airport authority that controls where an air-carrier lands or takes off. The element of control (that cannot be entirely separated or ignored) has to be applied to the party relying upon Article 5.3 and not others. It would be unfair to import into the test considerations felt appropriate by third parties whose business enterprise is entirely different, even if as coincides with the enterprise of air carriers. Indeed, it fairly could be said that airport authorities have an obligation to take reasonable steps to prevent or discourage bird flight across runways precisely because the airlines in contrast do not have the means to prevent bird strike in the course of landing or take off. To the contrary, the airlines are passive to any possible such presentation. They lack the "actual control" contemplated in Wallentin [Para 23]. A further observation is that air-carriers are subject to the control of the airport authorities in terms of permission to land and take off.
As with any English word, it is capable of meaning more depending upon context and perhaps the age of the deponent. In some contexts, it might well be used to express things that are unexpected, unforeseeable, unusual or rare. That said, the word can also be used simply to describe something that may be different or distinct but not to the extreme of it being unexpected, unforeseeable, unusual or rare; still less freakish. For example, a music critic describing an excellent performance might describe it as having been "extraordinary" but not for one moment intend to suggest it as having been unexpected, unforeseeable or unusual.
I do not therefore accept that unless an event is at the extreme or periphery of expectation, it can never be extraordinary.
On fuller analysis then, the statistical ratio approach can in fact lead to diverging conclusions that are difficult to know how to resolve. Applying this ratio test accurately, it would seem that to decide whether the exemption should apply might depend upon (a) what type of bird struck the aircraft (b) at what altitude and perhaps(c) whether this was unusual for that type of bird. Such a test would clearly be evidentially fraught with complexity.
This latter point seems pure speculation. Given, as I find, the document presents in a rational and informed way, and seems consistent with a logical analysis of the problem, I am unable to apply such speculation further.
For example, in Trustees of the Dennis Rye Pension Fund and Another v Sheffield City Council  1 WLR 840 the Court of Appeal held at 851, in respect to improvement grants under section 101 of the Local Government and Housing Act 1989: "a refusal to approve an application for a grant gives rise to no right to damages. Discretions are also involved, for example section 115 (discretionary approval) and section 118 (determining a specification). However, once an application is approved a duty to pay it arises upon compliance by the applicant with the statutory requirements and the duty is in my view enforceable by an ordinary money claim."
So too in Murdoch v Department for Work and Pensions  EWHC 1988 (QB) Walker J, obiter, considered that the principle in Trustees of the Dennis Rye Pension Fund could be applied in respect of incapacity benefit and income support and that where a legislative provision "imposed a statutory obligation to pay benefit [and] neither those regulations nor any other statutory provision provide an express remedy for the recovery of unpaid benefit. It follows that it is open to a claimant who can prove that there is an award of benefit in his favour which is unpaid to sue for the unpaid amount in the County Court." .