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Often, airlines try to take advantage of the "extraordinary circumstances" exemption by claiming all technical issues are "extraordinary circumstances".
However, courts decisions are very clear: a technical issue will rarely qualify as an extraordinary circumstance.
A technical issue, even if it is extraordinary, does not constitute an exemption of liability
Courts stated that technical issues are generally not considered exemptions of liability. Indeed, judges consider that the maintenance of an aircraft is inherent to the normal performance of the activity of the air carrier.
Air carriers are often confronted to various inevitable technical issues due to the sophistication of aircrafts.
In order to avoid endangering passengers' security, aircrafts are on a daily basis submitted to strict security controls. Therefore, the fact that an airline had to resolve a technical issue due to a lack of maintenance is considered to be inherent to the normal performance of the activity of the air carrier.
As a result, technical issues revealed during the maintenance of aircrafts or due to a lack of maintenance do not qualify as "extraordinary circumstances".
The fact that the airline has properly ensured the minimal maintenance of its aircraft is not sufficient to exempt it from paying compensation to passengers
Judges have decided that the fact that the airline has properly ensured the minimal maintenance of its aircrafts is not enough to show that the airline has taken all "reasonable measures".
In order to escape liability, the airline cannot qualify the technical issue as an extraordinary circumstance.
In fact, the airline has to show that the technical issue could not have been avoided even if all reasonable measures, including both financial and material, were taken. In other words, only overwhelming technical issues can qualify as extraordinary circumstances.
Example: failure of an engine
Alitalia had to cancel a flight due to one of the aircraft engines issue. The failure was discovered during a control the day before departure. In order to fix the aircraft, the airline had to convey replacement components and technicians.
The judges held that the failure could have been avoided and therefore it was not an extraordinary circumstance (European Court of Justice, December 22, 2008, case of Wallentin-Hermann).
Read the entire decision here.
When will a technical issue be considered an extraordinary circumstance?
When a technical issue is not inherent to the normal performance of the activity of the air carrier, it can be deemed extraordinary.
Example: if it was revealed that a manufacturer of aircrafts sold aircrafts with hidden defects to airlines, the technical issue would be considered as extraordinary. Another example would be an act of terrorism or sabotage to an aircraft. The airline would therefore not be held liable.
Who decides if the airline is liable?
Only judges can decide whether the technical issue was inherent to the normal performance of the activity of the air carrier.
As a result, judges have to check whether the airline took all reasonable measures in order to avoid the technical issue, namely bearable financial and material measures for the airline.
by Frédéric PELOUZE, Weclaim Founder and Director
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