EU261, “extraordinary circumstances”, and new planesBack to Forum
Anonymous12 May 2016
I recently had my claim for compensation for a lengthy delay (“worth” EUR600) on a certain European airline rejected. Although the airline in question stated that this was due to a technical fault (“broken” APU bleed bellows, requiring replacement), they went on to say that the aircraft (an A350) was only 5 months old, and accordingly the failure was “most probably caused by a mistake in manufacturing or design/engineering process” and therefore falls within the “extraordinary circumstances” exception to EU261 and no compensation will be paid. They have, however, offered a voucher for EUR200, which I have two weeks to accept as full compensation.
Now, I have no idea what an APU bleed bellows is or does – I assume it is something to do with bleed air from the engine, and I do know that when the exhaust bellows on my boat go (as they occasionally do) they need to be replaced but that my boat will still work in the meantime. That’s as far as my technical knowledge goes.
I wondered if more knowledgeable members might have any insights on the technical problem (and how serious it is); and also their thoughts on whether I should fight this?
I am considering using a claims company, but if the claim is likely to fail I would rather take the EUR200…12 May 2016
I’ve heard that XXX are reluctant to pay out under EC261 and I believe that their country (that sounds similar to their name) has no small claims fast track system – any coincidence? 😉
FYI, an APU is an auxiliary power unit (small turbine) used to power the aircraft on the ground, reduce the workload on the engines in flight and provide compressed air to start the engines – I do not know what the bellows do, nor do I think that one needs to, in this context 🙂
I don’t think that merely telling you the fault name is sufficient, did the airline explain why this delayed the flight? Was there no other way to start the engine (i.e. using a ground unit) or was it because the APU is on the MEL (minimum equipment list) and the aircraft could not be despatched with it not working? Even then, it sounds as if the airline may be pushing the boundaries of extra ordinary circumstances, since relying on a manufacturing defect needs more evidence that their opinion – confirmation from the manufacturer of the part seems to be the standard, as I understand it.
Here is what Bott and Co have to say about extraordinary circumstances
You will note that it covers a bleed air failure towards the end.
Here is another comment (I cannot vouch for its weight), mentioning another judgement, which may be relevant.
Here is a more official source, stating the jugment.
It looks to me (remembering that I am not a lawyer, like you are) that the balance of probability is that it was not an extraordinary circumstance, just a unit that failed earlier than anticipated (did the airline provide you with evidence from the manufacturer that the APU bellows failed due to a manufacturing defect?)
I were you, I’d be talking initially with Bott and Co or one of the other specialists in this area, who will give an assessment of your likelihood of success and who practice in this field everyday.
If they say XXXX is on solid ground, you still have the option of taking the voucher.12 May 2016
The fact they are willing to offer €200 comp in voucher form says they know they owe you EU261 claim, but are trying to mitigate the payout. I’d take it further and aim for your €600 cash payment.12 May 2016
I see your point. On the other hand, I’ve always thought these vouchers are clever business, since they are often only redeemable against higher cost services and the face value is rather higher than the cost of the services – plus the pax has to buy another product.12 May 2016
Which means the carrier, rather than shelling out cash, wins because the customer spends again with the carrier…or doesn’t use the voucher at all…Christmas for the airline, smack in the face for the customer!12 May 2016
Aircraft technical faults are NOT extraordinay circumstances. In the Wallentin-Hermann v. Alitalia EU Court of Justice ruling the last loopholes were closed. I’d use one of the no-win-no-fee agencies and pocket 450 in cash (600 minus their fee) rather than 200 in vouchers.12 May 2016
MartinJ – 12/05/2016 11:29 BST
Although most loopholes have been closed, some tech faults can be classed as extra-ordinary, such as problems that cause grounding by aviation authorites and problems caused by hidden manufacturing defects.
The airline in this case is playing the hidden manufacturing defect card and if they can prove that to be true, they won’t be liable for compensation, but that proof will need to be convincing, such as a letter from the manufacturer of the defective component, stating that it was a manufacturing defet.12 May 2016
As a recently retired Commercial Airline Captain, let me give you some insight that might be able to help you claim your compensation.
An APU is designed to provide electrical and pneumatic power. On the ground it will provide pneumatic air to the air conditioning air cycle machines, provide electrical power to the aircraft. It is also used for pneumatic air to start the engines. It is also designed to provide another source of electrical power inflight during ETOPS flights in case of en engine failure or electrical problem.
Not knowing what your departure and arrival points were the APU might have been required for flight. But it can be deferred and the flight re-routed on a non-ETOPS flight plan. For the airline to make a statement as it did is just utter rubbish! The fact the aircraft was 5 months old has no bearing on your claim at all.
Hope that helps.12 May 2016
philsquares – 12/05/2016 12:27 BST
Taking a guess at Ian’s routing, I believe they will pass over some very high terrain – could the APU be on the MEL for such a flight, to reduce loading on the working engine and reduce the driftdown rate in case of in flight shutdown?12 May 2016
IanFromHKG – 12/05/2016 02:19 BST
You might want to have a look at EC261 Article 15
Exclusion of waiver
1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.
2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.
You might be able to have the voucher and the EC261 compo, if you wish 🙂12 May 2016
The APU could be MEL’d for the flight, but the routing would have to change and there could be payload penalties. But, there are plenty of airlines who avoid the high terrain and do just fine.
There is no impact on the loading of the remaining engine and the APU makes no difference to drift down. That is merely a function of gross weight and engine type.12 May 2016
If you want to assess your chances of being able to get money back under EU261, there are a number of internet-based companies that specialize in the field. In Germany, there is flightright, EUClaim, and Fairplane.
They all work based on similar business models: the website checks the validity of your claim as well as the chances you have to receive damages under EU261 against a commission which is only due in case of a successful claim.
Could be worth a try…12 May 2016