A collision between an aircraft and a bird is an “extraordinary circumstance”, which may exempt the air carrier from its obligation to pay compensation in the event that a flight is delayed significantly due to subsequent controls to check the state of the aircraft. However, where an authorised expert finds after the collision that the aircraft concerned is airworthy, the carrier cannot justify the delay by invoking the need to carry out a second check.
This is the substance of the decision made on Thursday, 4 May by the European Court of Justice (C-315/15), which was approached for a preliminary ruling by the Prague District Court in order to interpret the points in Regulation (261/2004) on the rights of air passengers. This legislative text stipulates that the obligation of an airline to compensate passengers for a flight delayed by more than three hours, unless the delay is due to “extraordinary circumstances”, which could not have been avoided even if all “reasonable measures” had been taken.
In the main case, the passengers of a Czech airline leaving for Ostrava (Czech Republic) had to wait for their aeroplane in Burgas (Bulgaria) for more than five hours due to technical problems (a delay of one hour and 45 minutes) and then due to a collision between the plane and a bird, which required two technical checks. The second check was specifically requested by the airline during the two successive flights bringing the plane to Burgas.
In these conditions, the Czech jurisdiction asked whether the collision between a plane and a bird could be considered as an “extraordinary circumstance” exempting the company from its compensation obligations and which were the residual obligations of the company regarding delays due to the other causes.
In its decision, the Court replied that the first question regarding the collision between a plane and bird effectively constituted “extraordinary circumstances” under the terms of the regulation. On the other hand, it decided that contrary to a plane breaking down or the premature failure of certain parts of an aircraft, a collision between the plane and a bird and the possible damages resulting from it do not constitute an extraordinary circumstance, since such a breakdown remains intrinsically linked to the operating system of the aircraft and therefore are not covered by the scope of the airline and are consequently not the responsibility of the latter.
The Court notes that the air carrier can be released from its obligation to pay passengers compensation if it can prove that the cancellation or delay of three hours or more is caused by an “extraordinary circumstance” which could not have been avoided even if all “reasonable measures” had been taken and that all measures were taken to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight or its delay by three hours or more.
On this point, the Court also notes that the air carrier cannot be obliged to take measures which would require it to make “intolerable sacrifices” in the light of the capacities of its undertaking. However, although the air carrier may be required to take certain preventative measures in order to reduce or even prevent the risks of any collisions with birds, it is not responsible for the failure of other entities (such as, inter alia, airport managers or the competent air traffic controllers) to fulfil their obligations to take the preventative measures for which they are responsible.
With regard to taking “reasonable measures” in this specific case, the Court considers that a second check of the aeroplane following the collision was unnecessary for ensuring the airworthiness of the aeroplane, although the delay resulting from the second check cannot be justified with regard to the obligation to pay compensation included in the regulation.
On this basis, the court holds that, in the event that a significant delay to a flight is caused not only by an “extraordinary circumstance”, which could not have been avoided by measures appropriate to the situation and which was subject to all reasonable measures by the air carrier to avoid the consequences thereof (a collision of the aircraft with a bird), but also by another circumstance for which the air carrier is responsible (a technical problem with the aircraft), the delay caused by the extraordinary circumstance must be deducted from the total length of the delay in arrival of the flight in order to assess whether the part of the delay for which the carrier is responsible is equal or greater than three hours and must therefore be the subject of compensation. (Original version in French by Francesco Gariazzo)