UK: Volcanic Ash And Compensation Under Regulation 261

Last Updated: 2 March 2011
Article by Maria Galán

There could scarcely be a better example of meteorological conditions incompatible with the operation of flight than the effects of volcanic explosions resulting in blanket international flight bans affecting every airline. So found District Judge Trent in a recent case concerning flight cancellation due to the April 2010 eruption of Iceland's Eyjafjallajokull volcano.

Marshall v Iberia Líneas Aéreas de España S.A. (Mayor's and City of London County Court, 13 December 2010)

On 14 April Iceland's Eyjafjallajokull volcano erupted. There followed a progressive closure of European airspace and the grounding of most scheduled passenger air traffic within Northern Europe between 15 and 23 April 2010. The Marshalls argued that resulting cancellation of their scheduled flight from Madrid to London did not constitute "extraordinary circumstances" under Regulation 261...

The Marshall family purchased tickets with Iberia for flights from Guayaquil, Ecuador to London Heathrow via Madrid, departing on 17 April 2010. No claim was made in relation to the first leg of the journey from Ecuador to Madrid. However, their Madrid to London flight, scheduled to depart on 18 April, was cancelled. The family elected to make their own travel arrangements to London. Once home, they requested a refund from Iberia for their unused Madrid to London tickets. A refund was duly paid by the carrier. Request on the part of the family for compensation was rejected.

Separate proceedings were issued by Mr Marshall on the one hand and by his wife and children on the other. The legal basis of claim was alleged breach of contract and of Regulation (EC) No 261/2004. The Marshall family sought recovery of their costs of alternative travel arrangements to London, compensation of Euro 250 each (under Article 7 of Regulation 261) and unspecified damages in respect of alleged inconvenience. Following application by the defendant, the claims were consolidated and on reduction of the damages claimed, allocated to the small claims track.

Consideration of the evidence

The heart of the claimants' case rested on Mr Marshall's account of a conversation with an Iberia employee on duty at the customer service desk in Madrid airport on 18 April 2010. Having considered the witness evidence from both parties the judge held that Iberia, by its representative, did not refuse to fly the claimants or fail to offer an alternative flight as soon as one became available. Further, Iberia did not represent to the claimants that they were entitled to reimbursement in respect of their alternative travel arrangements, Iberia's representative did her best to assist the first claimant given his particular circumstances and the total uncertainty surrounding the timing of any opening of European airspace and the carrier's ability to recommence flights.

The legal findings

District Judge Trent found that there had been no breach of contract by reason of flight cancellation alone. Under the Regulation the family had the choice of being re-routed or making their own way home, accepting reimbursement of the unused tickets. They elected the latter. They were not entitled to the costs of their own transport arrangements: nowhere in the Regulation is it stipulated that carriers are obliged to fund passengers' alternative means of transport.

The core remaining issue was whether the claimants were entitled to compensation under the Regulation or breach of other contractual rights arising from the carrier's alleged failure subsequent to cancellation of the scheduled 18 April flight to transport them to London. Compensation under the Regulation is payable unless the carrier can prove that the flight cancellation is due to "extraordinary circumstances".

Mr Marshall argued that notwithstanding submission by Iberia supported by a considerable amount of press and regulatory material concerning the impact of the volcanic ash on European airspace, the defendant had failed to produce any official statement that this amounted to "extraordinary circumstances" under the Regulation. Mr Marshall advanced argument, inter alia, that European airspace had in fact remained open – to propeller aircraft. (Iberia took delivery of its first jet aircraft in 1961 and did not at the material time operate propeller aircraft. Whilst it did historically operate propeller aircraft, those that remain are now museum exhibits.) The judge held: "I have no hesitation in finding, on the balance of probabilities, that the defendant has proved that these circumstances represented known and unavoidable extraordinary circumstances which, by virtue of Art 5 (3) [of Regulation 261] exclude the Defendant from having to pay compensation under Article 7 (1) (a)." The claim was dismissed.

Maria Galan, Associate and Fellow of the Institute of Legal Executives acted for the defendant, Iberia Lineas Aereas de España S.A.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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