Is a bird strike an extra ordinary circumstance according to EU Reg 261/2004? Not according to a recent court case from UK.
Bird strikes can no longer be used by airlines as one of the extraordinary circumstances defences against paying flight delay compensation under EU Regulation 261/2004.
This follows a judgment handed down at Manchester County Court today in the case of Ash v Thomas Cook Airlines.
District Judge Sunil Iyer ruled in favour of Timothy Ash and his family, including a disabled son, awarding the four €1,600 compensation for a flight delay of more than five hours on a flight from Antalya in Turkey to Manchester in 2011.
According to European flight delay regulation EC 261/2004, passengers who have been delayed by three hours or more in the last six years can claim up to €600, as long as their delay was not caused by ‘extraordinary circumstances’.
But what constitutes an extraordinary circumstance has been vague in UK courts, as the regulation does not list specific circumstances that should be considered ‘extraordinary’.
It is widely agreed that passengers cannot claim for acts of terrorism or sabotage, extreme weather conditions, civil unrest, hidden manufacturing defects or industrial action – yet there has previously been confusion around claiming for delays caused by bird strikes.
Judge District Iyer said that bird strikes cannot be considered extraordinary because they happen several times a day.
He said: “For my part I observe that the word used is “extraordinary” rather than “unexpected”, “unforeseeable”, “unusual” or even “rare”. Extraordinary to me connotes something beyond unusual.
“A motorway collision between two cars on a motorway is unusual but not extraordinary, whereas a motorway collision between a car, and say, a horse would be extraordinary.
“Bird strikes happen every day, in fact many times a day, and would hardly be worthy of comment but for the delay which they cause.
“They do not fall within the same category as a motorway collision between a car and my previous example of a horse, which would be extraordinary, for the simple reason that our skies are populated with birds, whereas our roads are not populated with horses.”
The Judge also noted that bird strikes are so common that Manchester airport uses a hawk to prevent other birds from straying into its airspace.
Airlines once used ‘technical problems’ as an excuse not to pay out, but this changed when the Court of Appeal ruled that technical problems were not extraordinary circumstances in the case of Huzar V Jet2.com in June 2014.