EU261. An actual experience when BA cancelled an EU flight.

[opusman]

I doubt an A319 flight scheduled to arrive to LHR at near 11:00 PM would be next scheduled to operate a10:30 AM flight.

Maybe it was scheduled for some minor maintenance that morning before it’s first flight of the day, but it missed curfew the previous day due to weather?

Not saying it did of course, but if I’ve learned anything from AFF it’s that things can easily be more complicated than they appear!

 

[Austman]

Maybe it was scheduled for some minor maintenance that morning before it’s first flight of the day, but it missed curfew the previous day due to weather?

Yes maybe. But according to the judgment above, weather delays have to be on the actual route flown. All MIL-LHR flghts operated on 31st May. And only BA575 (the return of our cancelled BA574) was cancelled on 1st June.

 

[Austman]

Update from BA:

I’ve reviewed your claim and as previously advised, your flight was cancelled because of adverse weather conditions. We always want to maintain a stable operation. This isn’t only because of the disruption to our customers, but also because of how difficult it is to recover from major disruption. I’m afraid we had no option but to cancel your flight and we’re not liable for a compensation payment when the cancellation is due to weather.

Due to weather conditions, Air Traffic Control had to restrict aircraft operations for safety reasons. Although some flights were able to operate as normal, your flight was one of those we had to cancel.

Article 5.3 of the EU Regulation 261/2004 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances, that couldn’t have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include weather, strike and the impact of an air traffic management decision which gives rise to a long delay. This means you’re not entitled to compensation under the EU Regulation for your cancelled flight.

I realise this will be disappointing for you but I hope this information will help you to understand our decision.
​

My reply:

Dear British Airways,

Thank you again for your email.

But as in the Jager vs, EasyJet ruling in 2013, an airline must prove that adverse weather delays or cancellations must directly impact the route being flown by the “flight in question”. Knock-on effect cancellations are not an acceptable cancellation reason.

There were no adverse weather delays on the LHR-LIN (and MXP) route at any time on 1st June 2018. All BA flights between LHR and MIL other than our cancelled flight operated, and operated on time.

It seems impossible to have cancelled a 10:30 AM scheduled flight at 01:00 AM due to adverse weather conditions on the LHR to LIN route on 1st June 2018.

Should BA refuse our entitled compensation, I will have no option but hand this case to lawyers who specialise in this area. I would expect that would be at eventual increased costs to BA.​

 

[Ansett]

Thank you for the update, what a lot of slippery buggers. Keep fighting

 

[serfty]

Update from BA:

Absolute form letter ... seen just about the same many times posted on the BA FlyerTalk thread - link earlier.

 

[Himeno]

5ish years ago, just after the QF/EK tie up started, I was flying LHR-xDXB-xLHR-PVG (BA-QF-BA).
The aircraft planned for LHR-DXB had a tech issue (inop fuel pump IIRC), causing BA to change aircraft to one inbound from SFO, thus delaying the flight.
BA also refused to check through to QF (this was prior to the PNR check through policy change, but even then, this was on the same PNR and ticket).

Between the departure delay, ATC delays and 'issues' with the DXB transfer desks, by the time I got to the DXB A EK lounge (without a boarding pass), the QF flight was about to board and I was misconnected leaving EK to sort it out. After they couldn't get through to LHR (BA, cause of problem) or HKG (CX, ticket issuer), they got through to QF in SYD who rebooked and a 24 hour delay in arriving at destination.

BAs excuse when claiming EU261 was "unexpected maintenance requirements are extraordinary circumstances", and no amount of debate would get them to change their mind, even citing court cases which determined that maintenance requirements, unexpected or not, are normal expectations of operating an airline and do not count as "extraordinary circumstances" didn't do anything.

Whenever BA gets an EU261 claim, they just pick a reason out of the first contact, pull out a form letter to back up that reason and refuse to budge. When dealing with BA and EU261, nothing short of a court order will get them to pay up.

 

[Austman]

When dealing with BA and EU261, nothing short of a court order will get them to pay up.

So you must always take them to court? I suppose that's the reason for all the legal firms offering the service. Those firms say that only about 2% of pax entitled to EU261 compensation actually claim it.

 

[Himeno]

So you must always take them to court? I suppose that's the reason for all the legal firms offering the service. Those firms say that only about 2% of pax entitled to EU261 compensation actually claim it.

Unless it's something so painfully obvious and clear cut that they agree right at the start, BA doesn't want to cough up any cash. You sort of have to force the issue.

 

[MEL_Traveller]

It seems BA is getting muddled in their response. They’re saying ‘weather’ but what i really think they mean is ‘ATC restrictions’. The latter is an extraordinary reason. If ATC tells BA ‘you have to cut 10 flights’, i’m not sure BA has the choice.

Himeno... you have 6 years to make a claim. worthwhile revisiting if you have any unresolved claims.

 

[Austman]

Due to weather conditions, Air Traffic Control had to restrict aircraft operations for safety reasons. Although some flights were able to operate as normal, your flight was one of those we had to cancel.

They’re saying ‘weather’ but what i really think they mean is ‘ATC restrictions’. The latter is an extraordinary reason. If ATC tells BA ‘you have to cut 10 flights’, i’m not sure BA has the choice.

I wonder how it can even be checked if that was actually the situation? It would have had to have been an advance/predicted weather forecast to cancel a 10:30 AM flight at 01:00 AM?

According to the CAA, there were no cancellations at LHR due to predicted weather events on May 31st or June 1st:

Heathrow Airport
Heathrow required airlines to cancel a proportion of their flights based on forecast bad weather.

The reduction in capacity was to ensure flights could continue to operate safely and airlines could give advance notice to their passengers. The flights shown below were cancelled based on the expected weather conditions and in our view would be considered to be an extraordinary circumstance and not subject to compensation.

The list does not include flights cancelled on the day.
Details of cancelled flights

(There were none for May 31st or June 1st)

Am I entitled to compensation? | UK Civil Aviation Authority
​

And EUROCONTROL has nothing for those days either. They post a map when bad weather events are predicted:

EUROCONTROL (@eurocontrol) | Twitter​

The actual weather at LHR on the morning of June 1st was mild, misty with an occasional drop of rain. The weather in LIN was mild and sunny. The weather en-route was good. But that's all a bit irrelevant if a flight was cancelled due to (predicted?) weather about 8 hours before.

 

[serfty]

no amount of debate would get them to change their mind, even citing court cases which determined that maintenance requirements, unexpected or not, are normal expectations of operating an airline and do not count as "extraordinary circumstances" didn't do anything.

Did you eventually succeed in your claim? If not, then you do have six years to claim; recent case decisions re missed connections would be in your favour.

 

[MEL_Traveller]

Austman... i would copy that back to BA! It’s up to them to prove the cancellations were ATC related. Which it appears they might not be.

Some of these claims can go for some time. We had one that went for a year back and forth. But we’re successful in the end.

 

[Himeno]

Did you eventually succeed in your claim? If not, then you do have six years to claim; recent case decisions re missed connections would be in your favour.

No, I gave up after 3 months and 5 rounds of talking to a brick wall. I did see some of the court cases that would help post on FT shortly after, but I was dealing with other issues at the time and didn't want to throw myself at the brick that is BA at that moment.

The original plan was
BA107 10NOV2013 1245 departure
QF1
BA169
arrive PVG 0925 12NOV

Ended up with a 25 hour delay in DXB and flew
BA107 1415 departure
QF1 12NOV 0225 departure
BA1169
arrive PVG 0610 13NOV

EK wanted to put me on QF8001 (EK1), which would have eliminated any issue (small delay in DXB, but would still make original BA169), but SYD said nope.

 

[MEL_Traveller]

Himeno... I’m confused about the routing and the flights potentially eligible for EU261? Did you fly LHR-DXB-LHR-PVG? And where was the delay caused and by which operating carrier?

 

[Austman]

Austman... i would copy that back to BA! It’s up to them to prove the cancellations were ATC related. Which it appears they might not be.

Some of these claims can go for some time. We had one that went for a year back and forth. But we’re successful in the end.

I did just that. And here is the latest reply:

Dear Austman,

Thanks for coming back to us about your flight to Milan on 01 June.

On the day you were due to travel, there were restrictions in place affecting the aircraft coming in and out of London Heathrow airport. This was a direct result of the severe weather conditions. I’m afraid this was out of our control and caused unforeseen disruption.

When severe weather hits an airport, for safety reasons, Air Traffic Control will often impose restrictions on the number of aircraft that can take-off and land. At a lot of airports where capacity is low, flights can be rescheduled later in the day and the airport is able to cope and can sometimes recover. However, London Heathrow runs at close to maximum capacity. It normally handles more than 1,300 flights a day, hundreds more than any other UK airport. Whenever normal operations are restricted at Heathrow, the lack of spare capacity means that unfortunately, delays and cancellations are unavoidable. While each airline is asked to reduce its schedule on an equal basis, with British Airways being by far the biggest operator at Heathrow, we do have to take the major share of cancellations during any disruption.

Since your flight was cancelled due to adverse weather conditions and Air Traffic Management decisions, under EU legislation, I’m afraid we’re not liable for a compensation payment in this situation.​

Severe weather conditions at 01:00AM (when my scheduled10:30 AM flight was cancelled) on 1st June at Heathrow? Not when I was there at that time in the hotel beside LHR - looking out into the quiet stillness at the parked aircraft! And not according to the MET either. And not for the rest of the day either.

I suppose this is just the back-and-forth nonsense that BA will use.

 

[Danger]

My issue with these airline excuses is the opaqueness of it all. The passenger is supposed to blindly believe whatever the airline says.

My partner and I suffered from a BA delay a few days ago departing IST for LHR. At the gate it was announced the flight was "delayed" by 23h35-odd minutes resulting in an overnight at IST. We managed to get ourselves re-booked on a departure 15 hours later with the original flight ultimately departing just over 24 hours later.

The reason given by grounstaff was that one of the flight crew fell ill. And passengers have little choice but to accept it. I've filed with BA for EU261 compensation but will undoubtedly get the same response at Austman. And what are we to do? To my mind it seems very easy for an airline to claim a circumstance like this that can't be verified by the passenger in order to escape liability.

 

[serfty]

To my mind it seems very easy for an airline to claim a circumstance like this that can't be verified by the passenger in order to escape liability.

They can claim that, but when it comes to eu261/2004, they have to:

1. Prove that it happened, &
2. Prove that it was an extraordinary circumstance.

1. may be possible; 2 is unlikely (in the situation described).

 

[Danger]

They can claim that, but when it comes to eu261/2004, they have to:

1. Prove that it happened, &
2. Prove that it was an extraordinary circumstance.

1. may be possible; 2 is unlikely (in the situation described).

What wold you consider to be appropriate and adequate proof that a member of the flight crew was sick.

@Austman, if I've understood your situation correctly, your flight was cancelled. Apart from fighting for EU261 compensation, BA's T&Cs state they will provide a full refund for cancellations. See 10(b)(1): General Conditions of Carriage | Legal | British Airways. You may need to seek this through QF, though.

 

[serfty]

What wold you consider to be appropriate and adequate proof that a member of the flight crew was sick.

Doctors certificate? It's not for me to decide.

Irrespective, a crew member becoming ill is, IMHO, not an extraordinary circumstance being part and parcel of operating an airline.

 

[Austman]

Apart from fighting for EU261 compensation, BA's T&Cs state they will provide a full refund for cancellations.

Sure, if we had decided not to use the ticket. But we did use the ticket:

Qantas actually then moved our flight to the 07:35 BA564.