Is it a bird... is it a plane? CJEU confirms that bird strikes are extraordinary under EC Regulation 261/2004

Aviation Legal Update

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Introduction

On 4 May 2017, the Court of Justice of the European Union (CJEU) handed down its judgment in Marcela Pešková, Jirí Peška -v- Travel Service A.S, ruling that bird strikes should be classified as 'extraordinary circumstances' under EC Regulation 261/2004 (Regulation).

The judgment came as a welcome surprise to carriers, who have long argued that delay and cancellation caused by bird strike are both rare and outside of their control. The judgment was far from expected in that it departs from Advocate General (AG) Bot's opinion on the same matter and marks a departure from the approach taken by the CJEU in recent years, which has narrowed the scope of the 'extraordinary circumstances' defence in favour of passengers.

In addition to clarifying the judicial approach to bird strike, the outcome of Peskova will likely have far reaching effects, beyond merely birds, into the domain of adverse weather conditions, particularly lightning strikes.

Background

Peskova concerned a claim for delay of 5 hours and 20 minutes to a flight from Bulgaria to the Czech Republic. The aircraft due to operate the flight suffered a technical fault and a collision with a bird whilst operating the previous flight. This necessitated safety checks before the aircraft was deemed airworthy.

Carriers are exonerated from the obligation to pay fixed compensation to passengers pursuant to the Regulation in the event of flight cancellation or long delay caused by 'extraordinary circumstances' which could not have been avoided, even if all reasonable measures had been taken. The English Courts have placed a high threshold on this defence and each case is determinable on its own facts, causing inherent inconsistencies in first instance rulings.

The question of whether flight delays and cancellations following bird strikes constitute 'extraordinary circumstances' is no exception to judicial inconsistencies encountered at County Court level, and clarification on this point has been long awaited.

The Opinion of Advocate General Bot

Peskova largely came as a surprise in the context of the opinion of AG Bot, which was published in July 2016, stating that bird strikes did not fall within the meaning of 'extraordinary circumstances' under the Regulation. It was anticipated that the final CJEU ruling would follow suit, finding against carriers.

AG Bot's argument centred around the fact that collisions with birds were an inherent risk of flying and not uncommon, therefore falling short of the 'extraordinary' threshold. AG Bot referred to the fact that aircraft manufacturers account for the possibility of bird strikes in the development of engines and aircraft and, in the same way, airports take measures to deter birds on runways. Thus, the risk of bird strikes was stated to be 'certain, known, taken into consideration and present from the moment the plane starts until it lands' and 'inseparable from the aeronautical activity itself.'

In AG Bot's view, bird strikes would only be considered 'extraordinary' if there was something extraordinary about the specific collision, such as a flock of birds preventing an aircraft from flying. Classifying all bird strikes as extraordinary would not, in AG Bot's opinion, offer sufficient consumer protection under the Regulation.

The CJEU's Judgment in Peskova

Contrary to AG Bot's view, the CJEU's final judgement in Peskova confirms that a collision between an aircraft and a bird should be deemed to be an 'extraordinary circumstance' within the meaning of Article 5(3) of the Regulation, thereby exempting a carrier from its obligation to pay compensation in the event of delay or cancellation.

The CJEU stated that a collision between a bird and an aircraft and any subsequent damage is not 'intrinsically linked to the operating system of the aircraft' or inherent in an aircraft's normal activity and is therefore outside the carriers' actual control. Such a collision and any subsequent damage must therefore be classified as 'extraordinary circumstances'.

The CJEU also stated that the courts must assess 'whether, in particular at the technical and administrative levels, the air carrier concerned was, in circumstances such as those in the main proceedings, actually in a position to take, directly or indirectly, preventative measures likely to reduce and even prevent the risks of possible collisions with birds.'

The CJEU added that, due to the Regulation's objective of ensuring a high level of protection for passengers, 'air carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over the objective of safety'.

This does not mean that it is a given that all bird strike cases will be determined in favour of airlines; a carrier must also demonstrate that it took all reasonable measures to avoid it. The CJEU states that a carrier must ensure that the event could not have been avoided by any measures taken which do not require it to make 'intolerable sacrifices in the light of the capacities of its undertaking.'

It is therefore critical that a carrier faced with a bird strike claim can show that it took all reasonable measures to avoid the extraordinary circumstance. There has been discord over the years as to whether the requirement for 'all reasonable measures' relates to the event causing the cancellation/delay or the airline's ability to limit the delay to the passenger once the event has occurred. The English Courts and the Civil Aviation Authority have largely taken the former view.

However, the wording of the Peskova judgment clearly favours the 'reasonable measures' test relating to the event causing the delay, dodging the fourth question referred to it relating to the requirement to build in reserve time. It then awards compensation based on the maintenance checks carried out on the aircraft following the event, on the basis that 'cancellation or delay is not due to extraordinary circumstances when that cancellation or delay is the result of the use by the air carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks have already been carried out by an expert authorised under the applicable rules'.

This analysis at CJEU level lends itself to the argument that the 'reasonable measures' test relates to the avoidance of the bird strike event itself. Since this is fact specific, provided carriers have clear evidence of the steps taken to prevent bird strike so as to overcome the 'all reasonable measures' test, they can now argue that they are not liable for compensation under the Regulation in the context of bird strikes.

Wider Application of Peskova

Reasoning in the Peskova judgment applies equally to other events 'not intrinsically linked to the operating system of the aircraft' and 'outside the air carrier's control and its normal activity.' While an obvious example of a similar event is a lightning strike, arguably the wide definition afforded by the CJEU in Peskova applies equally to other causes of cancellation and delay such as any foreign object debris/damage (FOD) event or meteorological event such as hail storm or wind shear.

Indeed, indications are that lightning strikes are actually less common than bird strikes, making them even more likely to be deemed 'extraordinary'. Furthermore, the point in Peskova regarding carriers placing safety as a priority over flight delays applies equally to maintenance checks required immediately post lightning strike or other events which potentially compromise flight safety.

The decision in Peskova is a stark contrast to the recent approach of the English County Courts to bird strikes and lightning strikes, which have on numerous occasions held that lightning strikes are not classified as 'extraordinary' and have taken to issuing summary judgments against carriers, without an oral hearing. Though not binding in nature, these judgments previously set a precedent for such claims and the anticipated outcome. Peskova provides a fresh outlook on these claims which, if they continue to be brought, will no doubt be vigorously defended by carriers.

Passengers and claims handlers are likely to attempt to distinguish lightning strikes and/or other FOD or meteorological events from bird strikes, in an effort to curtail the wider application of the rationale in Peskova. This could prove challenging for them in light of the wording chosen by the CJEU in Peskova, which draws such events and bird strikes together, given that their effect on aircraft, including the mandatory safety checks following such events, are 'strikingly' similar.

In light of Peskova, the issue of whether 'all reasonable measures' have been taken by carriers will become a more hotly contested issue since, where an event is 'extraordinary', the main recourse for passengers will be to argue that carriers have fallen short of their duties to prevent such events (or, they will argue, their resulting delay to the passenger). As the point is so fact specific, evidence will be key to successfully defending such claims.

A significant proportion of lightning strike claims remain stayed at English County Court level pending the outcome of Christie v easyJet. Peskova has set the stage for Christie to provide guidance on lightning strike claims, albeit at a non-binding level for the time being. In the meantime, at least one of the flock of outstanding questions concerning interpretation of the Regulation has been answered.