EU compensation - fire alarm at the Flight Crew's hotel

Question

I was on-board an afternoon flight from the EU, into the United States earlier last month.

This flight was delayed by about 3 hours, 30 minutes.

As this flight was delayed for over 3 hours, without any explanation provided to me, I contacted the Airline seeking compensation under EC Regulation 261/2004.

I've gotten a response back from them today, explaining that I'm not entitled to compensation as there was a fire alarm at the crew's hotel.
I assume this is the night before.

Is this a valid Extraordinary Circumstances exception under the EU 261/2004 Regulation?

Answer 1

The courts (up to and including the European Court of Justice, which has the final say) have followed a slightly zig-zagging course in interpreting the "extraordinary circumstances" concept, so it is not possible to predict with 100% certainty how they'd deal with a case such as this where there's no explicit precedent. The best one can say is that the ECJ tends to be pretty consumer-friendly in its application of 261/2004 -- but that is not a guarantee.

Originally it appears that "extraordinary circumstances" were intended to speak about Eyjafjallajökull-level calamities that might bankrupt even a well-run airline if they had to compensate for everything. Over time, airlines have gotten away with applying it rather more broadly than that, but the general trend is in your favor. For example, it has been decided that random equipment failures that delay one particular flight/aircraft is not an extraordinary circumstance but a risk of doing business that the airline ought to factor into their fares.

Here's a write-up from a law firm specializing in these claims that looks like a good overview of the binding precedent that exists.

Now, even assuming that you are entitled to compensation in your situation, you may have to sue (or make a credible threat to sue) the airline to collect on it. In principle you can ask the relevant National Enforcement Body for an intervention, but in practice they're pretty toothless when the airline is set on refusing compensation. So you would have to decide whether to

• give up, or
• duke it out yourself in small claims court (cheap but risky if the airline's lawyers can sow enough doubt about whether the circumstances are extraordinary are not), or
• go to one of the many legal agencies that specialize in compensation claims on a no-cure-no-pay basis. They may or may not want to deal with your particular facts, given the legal uncertainty of how "extraordinary circumstances" apply here. On the other hand, even if they think it's an edge case that will be costly to litigate, they might still be willing to do so for their usual cut of compensation, as a loss leader for publicity reasons.
• hire an ordinary practicing lawyer. If you can't get the compensation mills to touch the case, this comes with a great risk of costing you a lot of money for a small and uncertain gain, so be very careful about choosing this. In some countries it's common for home insurances to provide some legal cover, and if that is applicable to you the risk calculation might be different. Where this is available, typically the lawyer will deal with the insurance for you.

Answer 2

As a crewmember, I can explain why I think this is an "extraordinary circumstances".

Crewmembers, especially flight deck crew, while on duty (this includes the time they spent at a destination) is controlled by many rules when it comes to "rest", how long they need to sleep and when can they drink alcohol, etc. Even rules regarding diving and skydiving are controlled as it might affect the crew health.

However, if the crew did not get the minimum required rest before a flight (usually 8-12 hrs of pure rest) they are considered "NOT LEGAL" to fly, as their performance might not be optimum and might cause a catastrophe, especially if the flight is a long haul flight (EU to US for example).

Lack of sleep can lead to something known in the aviation as "unsafe level of fatigue", which is known to be the reason of many incidents and accidents. Therefore, many countries, including the US and all of the EU and many other parts of the world, have very strict rules when it comes to crew fatigue, this is called "fatigue risk management".

I know that it seems "silly" to passengers who were delayed for a couple of hours, but flight crew are usually under great stress when flying and they are responsible for the lives of hundreds of passengers, they know that so they will never take a chance to operate heavy machinery while on an unsafe level of fatigue.

Back to your case, this has happened to me personally, you are sleeping at your room, it's 03:00 after midnight and you have a pickup at 08:00 in the morning, some guest in the hotel decides to smoke, fire alarms goes off, speakers all over the hotel ask the guests to leave the hotel, fire trucks arrive, etc. etc., the whole process will take anything from 1 hour to 2 hours.

The crew goes back to the room, can't get back to sleep, they call the crew control/flight operations and report fatigue, the crew control calculates the rest required and informs the crew, the passengers usually gets informed if the delay is significant and you know the rest of the story.

This is only happens if the crew are spending a night somewhere away from their base, if this happened at a crew base then some other crew will cover the flight.

Now, is this considered an "extraordinary circumstance"? my opinion: YES it is!

Who to blame? well, the guy who smoked? a faulty smoke detector? but for sure not the airline as they were simply ensuring the safety of the passengers.