If an airline pilot dies hours before a flight, are passengers eligible for EC261/2004 compensation? The European Court of Justice (ECJ) ruled yes, in favor of the passengers, and against TAP Air Portugal, which was refusing to pay compensation.
A 2019 TAP flight from Stuttgart, Germany to Lisbon, Portugal was canceled after the flight's co-pilot was found dead in his hotel room. The flight’s crew was so distraught by the pilot's death that they declared themselves unfit to fly. The flight's passengers only landed in Lisbon 10 hours after their scheduled arrival time and several asked for compensation under the EU’s Air Passengers Rights Regulation. Per EC261/2004 rules, since the STR-LIS flight is 1141 miles and the delay was greater than 3 hours, each passenger was eligible for EUR 400 in compensatio
TAP refused to pay (unsurprisingly, given that TAP and other airlines were forced by the U.S. DoT to pay $622 million in overdue passenger refunds owed from pandemic cancellations), arguing the death of the co-pilot was an extraordinary circumstance that exempted the airline from the reimbursement obligation.
Three passengers filed a complaint in a German court, claiming TAP was violating EU law. The Stuttgart Regional Court referred the case to the ECJ, asking for clarification as to whether a pilot’s death would qualify for an exemption.
The ECJ noted in its decision that “measures relating to the staff of the operating air carrier fall within the normal exercise of that carrier’s activities” and “the absence is due to the unexpected death of a member of staff whose presence is essential to the operation of a flight…is no
different, from a legal point of view, from that in which a flight cannot be operated because such a member of staff has unexpectedly fallen ill shortly before the departure of the flight.”
The court was not persuaded by the airline's argument that the pilot had received a clean bill of health in a recent medical examination, noting “any person, including those who have successfully undergone regular medical examinations, may, at any time, unexpectedly fall ill or die.”
The bottom line, wrote the court, is that “Such a death, whilst tragic, does not amount to an ’extraordinary circumstance’ but is … inherent in the normal exercise of the activity of the airline.”
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