The Relationship between “Extraordinary Circumstances” and Travel Cancellation/Delay in Air Law

It is not an opinion, but a fact, that air transport is the safest means of travel, allowing the movement of cargo and passengers in a short space of time, and this on the basis of the significant distances that are travelled.

That said, the experience of frequent air travellers is subject to the very constraints of this mode of travel, which means that they are exposed to delays, most of them short but sometimes significant, as well as to unforeseen cancellations of their journey.

Except for certain, proven and weighty reasons that can be alleged (for example, notably adverse and public weather conditions at an airport), when airlines are complained about by passengers due to a delay or cancellation, it is not unusual for them to use as an excuse a brief argument of rejection alleging having suffered “extraordinary circumstances”, even when the affected parties do not know what these alleged circumstances are, of which they have had no notice or, simply, were received at the time as mere rumours in the boarding lounge, without coming from any reliable source whatsoever.

As a general rule, the applicable rules for compensating European passengers are those set out in the European Regulation 261/2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

Regulations that affect Spain, as well as the rulings that are issued in the study and resolution of each case of claims for delay/cancellation that have as their source the national courts, as well as those issued by the Court of Justice of the European Union (CJEU).

In principle, “extraordinary circumstances” are defined as unforeseeable, unavoidable situations due to external factors on the flight, which exempt airlines from paying compensation as force majeure. For its part, the European Regulation 261/2004 considers extraordinary circumstances to be situations that could not have been avoided even if the airline had taken all reasonable measures to avoid them.

This concept is undoubtedly subject to interpretation by the law and jurisprudence that develop it, and must be nuanced, which is why the application or not of this inconclusive concept has been studied case by case, assessing whether it was applicable to the rejection put forward by the airline in question. The onus is on the carrier to prove that these extraordinary circumstances were unavoidable, even if reasonable measures were taken, and that, once they arose, the actions taken were adequate to avoid, as far as possible, the cancellation or delay (both preventive and reactive actions).

Clearly, the reasonable measures to be taken by an air carrier must be technically and economically feasible, based on the fact that routes and flights have been planned to reduce the risks of delay and cancellation.

In short, we must bear in mind that when a passenger is offered a rejection of his right to compensation on the grounds of “extraordinary circumstances” alleged by the airline, the implications behind this allegation are greater than just sending the passenger a catch phrase, without the passenger being able to object to anything in defence of his right.

Therefore, three requirements are necessary: (i) the disruptive event must be qualified as an “extraordinary circumstance”; (ii) there must be a direct causal link between the event and the cancellation/delay; (iii) the event became unavoidable, even if reasonable measures had been taken, and the carrier must take action to avoid the cancellation/delay.

This issue, like many others inherent to the world of transport, highlights the main need in the case of events occurring that disrupt the agreed transport, and that is that a fair balance must always be sought between avoiding airlines being forced to make an evidentiary effort in the course of their daily business when a cancellation/delay event occurs, together with the duty to adequately protect passengers’ rights.