Claim EU Compensation When Flight Delay Due to Delayed Incoming Flight?

Claim EU Compensation When Flight Delay Due to Delayed Incoming Flight?

Can You Claim EU Compensation under EC 261 if Your Flight Delay is Due to a Delayed Incoming Flight? TravelSort reader Ed writes “I was on a United flight from Manchester to the U.S. that was delayed by a day, not because of anything wrong with the plane or even weather in Manchester, but because the incoming flight from Newark was cancelled, apparently due to weather in Newark. I wrote to United requesting EUR 600 in compensation, since it was a >3 hour flight of >3500 km., but United is denying my request, claiming that weather is an extraordinary circumstance. What should I do next?”

United, and many other airlines (especially U.S. based ones and budget airlines such as easyJet) are notorious for shirking their obligations to pay EC 261/2004 compensation, even when the facts are against them. A common United tactic is to provide a “customer appreciation token” pittance in the form of a voucher, only valid on United flights, that expires a year from issue, in hopes that passengers will accept it and then not seek all the EC 261 compensation they are due.

Is Bad Weather an Extraordinary Circumstance?

EC 261/2004 states (bolding mine) in Article 5.3 that an airline “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.” While EC 261/2004 doesn't exhaustively detail everything that should be considered an extraordinary circumstance, it does provide examples in 14, bolding mine: “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.”

And 15. notes, bolding mine: “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.”

There are two takeaways here: 1) the bad weather must directly delay or impact the flight for which compensation is sought; and 2) an actual Air Traffic Control decision is considered an extraordinary circumstance, such that no compensation is owed.

There's still the question of what kind of bad weather constitutes extraordinary circumstances. It's clear that ash clouds (such as the Icelandic ash cloud in 2010 that grounded many flights) are extraordinary circumstances, where EC 261 compensation for flight delays/cancellations isn't due, even though airlines still are under a duty of care to reimburse accommodation and meals.

On the other hand, in Evans v. Monarch Airlines, a UK court held in favor of the passengers, finding that lightning strikes are not extraordinary circumstances, so EC 261 eligible delays caused by them are due compensation. Judge Melissa Clarke's opinion noted (bolding mine):

“Damage caused by a lightning strike may well be an unexpected flight safety shortcoming, but that does not make it an exceptional circumstance…an unexpected flight safety shortcoming is only an exceptional circumstance if it is not inherent within the normal exercise of the carrier’s activity

If Weather Only Causes the Delay of the Incoming Aircraft, is EC 261 Compensation Owed?

A key aspect of EC 261/2004, as mentioned above, is that an extraordinary circumstance must be incompatible with operating the flight (a good barometer for this is whether other flights are taking off from the airport in question) that could not be avoided even if all reasonable measures were taken.

On the first point, many airports regularly see rain, some amount of fog, or in the winter, snow and ice, so these weather conditions aren't automatically considered extraordinary circumstances. Flights regularly take off in cold, snowy winter conditions in Chicago, Canada, Russia, Scandinavia and other places, so it's whether the weather is extraordinary for the departure or arrival airport in question that is important, not only the weather in absolute terms.

Concerning reasonable measures, these could include, depending on the circumstances, using one of the airline's other planes and crew, or chartering/wet leasing a replacement aircraft once it's known that the incoming aircraft will be severely delayed or cancelled.

In an unreported case, Jager v. easyJet, the court found that weather as an extraordinary circumstance affecting Jager's incoming flight did NOT constitute extraordinary circumstances for purposes of later flights. In other words, these “knock on” delays were not allowable as extraordinary circumstances, and Jager was due compensation.

Dunbar v easyJet deemed the Jager ruling too broad, but still found that if an airline lacks sufficient spare aircraft and crew ready to cover a “knock on” delay, this isn't a defense if the airline knew or could reasonably foresee that additional aircraft would be needed. In finding against easyJet, Sheriff Livingston wrote “I am not satisfied that everything reasonably possible was done bearing in mind the fact that the delay was known about for many hours.” In Dunbar, the plaintiff's flight wasn't affected by weather, but departed about 6.5 hours late, at 10:26pm, due to the knock-on effects of earlier weather-related delays.

The Upshot

It's clear that Air Traffic Control decisions are considered an extraordinary circumstance, where no compensation is due, per Blanche v. easyJet, (decided in June 2019), so if an ATC decision was responsible for the delay of the incoming aircraft, I wouldn't advise Ed to bother pursuing an EC 261 claim.

If, however, Ed finds that there wasn't an ATC instruction and most other flights were operating out of Newark in the hours around the time his incoming flight was to have departed Newark, United's claim that the EWR to Manchester flight was cancelled for weather reasons is suspect. United might be disingenuously attributing the cancellation to weather, while actually deciding that the passenger loads were too light for United's liking, and taking the risk that few passengers would be savvy enough to see behind this ruse to call United on its weather-as-extraordinary-circumstance claim to demand EC 261 compensation.

Since United often drags its feet in paying EC 261 claims, Ed shouldn't expect to get a positive outcome from his first submission via United's Customer Care form, but persistence may pay off.

United should have provided a hotel and meals to Ed for his overnight in Manchester, but if not, and if he has the Chase Sapphire Reserve, he can claim up to $500 in trip delay reimbursement, for expenses related to his overnight stay (or any delay of 6 or more hours) that weren't covered by the airline. He should first call the Benefit Administrator at 888-675-1461 submit his claim form, receipts showing the CSR was used, a copy of his ticket, and proof that the flight was delayed (write to delayletter@united.com to obtain) and these should be submitted online at eclaimsline.com.

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