When does a delay become a cancellation?

[A2QFI]

Posting on behalf of a colleague.

Last Sunday we were booked to fly with a well known budget airline from East Midlands to Prague. For reasons I won't go into were told by the Captain that the flight was cancelled and we were all off loaded. We were all then transferred by coach to an hotel in Luton for an overnight stay and loaded onto a flight the next morning from Luton rather than East Midlands. Now we were given a piece of paper by the airline detailing compensation we could claim. One of the claims is in respect of cancellation and we can claim EUR 250 per passenger if a flight is cancelled. Now here comes the sneeky bit; I rang the airline as soon as we got back from Prague and asked how we go about putting in a claim for compensation. They replied over the phone that the original flight wasn't cancelled at all just re-arranged. Now to me the fact that it flew from a different airport on a different day with a different flight number would indicate to me that this was not the original flight. The original flight never left the ground. So battle is about to commence. Any Ppruners experienced any similar problems and how did you resolve it?

[ExXB]

Very good question

From your explanation I would say that your original flight was cancelled and you were re-accommodated on a different flight.

However, that in itself doesn't mean that you are entitled to compensation under the EU Regulation. For very good reasons Compensation doesn't apply in cases of 'extraordinary circumstances', which has no specific definition, but generally means outside of the airline's control.

If, for example, your original flight did not operate because the airport was closed - you are not entitled to compensation.

Now, if you don't mind going into the reasons why the Captain didn't operate as scheduled we may be able to comment if you are entitled to compensation.

The EU Regulation is a 'dog's breakfast' very poorly written with very big holes in it.

Edited to say: "When I say 'you' I mean, your colleague. Sorry!"

[geoff1248]

Further Details

The original flight was an hour late arriving from Spain to East Midlands due to "crewing problems" in Spain so the Captain informed us. We were boarded and the plane left the stand approx. 1hour 10 mins behind schedule. We then "parked up and the Captain informed us that he would be returning to the stand as there was a problem with the air con and as this was a safety issue he could not fly until an engineer had inspected the fault. Within half an hour the fault had been repaired and we all cheered the blast of cold air. However, the Captain then informed us that because the flight crew may possibly be "out of hours" because of these delays a replacement crew was being sought. Within 15 mins. the captain announced that a replacement flight crew was not available so the flight was being cancelled.
We were transfered by coach from East Midlands to Luton for overnight accommodation and finally left for Prague the following morning from Luton.

[radeng]

ExEB

Can anyone find an EU Regulation or Decision or Directive which isn't a dog's breakfast (although one very rough on the poor dog!), often with different meanings in the various languages?

[Kelly Hopper]

'Had a situation on Thai last year when there was a 20 hour tech delay going to Sydney. I got myself checked on the next days flight as I would have to wait in Bangkok for the connection anyway so acheiving nothing. EU regs state quite catagorically a €600 compensation is due to me. Months of fighting Thai and they just stick two fingers up at the regs. Reported them to the EU and they thanked me for letting them know! It's a useless piece of legislation.

[ExXB]

Never a simple answer

Geoff,
What you describe is;

1. Inbound aircraft 1 hour late due to 'crew problems'.
2. Aircraft pushed back, but returned to gate due to problem with air con (which isn't just about cooling the cabin air). This likely was a 'safety' issue. You want air with your flight, don't you?
3. With the delay your crew was close to, or would end up, 'out of hours'. Again a safety issue. (Fatigue being a significant topic of discussion here)
4. Couldn't find a replacement crew. Flight was cancelled.

If this is correct the flight was likely cancelled due to 'extraordinary circumstances'. I doubt that you would have wanted the aircraft to have been operated with u/s air con. and you probably wouldn't want the crew to be operating the aircraft without proper rest. I can tell you I wouldn't.

It appears that the airline did handle the 'care' requirements. i.e. fed and bed you, and rerouted you to your destination. The only real question is if this cancellation warrants compensation.

The airline has also tried to deceive you, which raises the suspicion level. Now it could be some min. wage guy who ise paid only to say no, no, no to every request, but then again ...

What I would do, is to put my complaint in writing to the airline, and copy the AUC (The UK's Consumer Watchdog for the Aviation Industry | AUC Home) who is the UK N.E.B (National Enforcement Body). If you don't get a satisfactory reply in 30 days then follow up directly with the AUC. If the AUC agrees that the airline has an obligation to pay you compensation for the cancellation then they will push. No guarantee though, I would say your case is weak because your flight appears to have been cancelled for safety reasons, but we obviously don't know the full story - which the airline must give to AUC.

You can also consider (after submitting your original request and not getting a good answer) going to EU Claim (EUclaim | Startpage). These guys have always seemed to me to be bottom feeding sharks, they do take a commission, but it might work for you.

I mentioned that the EU regulation is a 'dog's breakfast' because it is poorly written. I should have added that it is also a 'Zebra's lunch' as well because the EC raised SLF's expectations so high that may expect compensation for all flight cancellations. The original intent was to compensate passengers if/when flights are cancelled for commercial reasons - say only 10 pax booked - not to encourage airlines to operate when safety issues suggest that they should not.

Good luck, and keep us in the loop on what happens next!

[ExXB]

Kelly,

Don't complain to the Commission - Implementation of the Regulation is the responsibility of the Member State - the AUC in your case. Brussels has no authority and frankly they have no competence what-so-ever!

However in my post to Geoff I mentioned that the intention of the payment of compensation for cancellations was to dissuade airlines from cancelling flights for commercial reasons. It was never intended that compensation should be paid if the flight was cancelled for technical reasons.

You mention your flight was delayed (for 20 hours) and you chose to rebook yourself onto another flight. The EU regulation does not provide for compensation in case of delays. Since the flight wasn't cancelled the two fingers that Thai showed you, although rude, were correct. Compensation is not applicable in your case.

[Mr @ Spotty M]

The way l read it is as follows.
1. A/C departed late.
2. A/C returned to stand due Tech.
3. Crew then went out of hours or could not operate round trip.
4. Flight cancelled due to shortage of crews (no replacement crew avail), so it was not cancelled due Tech or 'extraordinary circumstances'.
5. If the airline concerned had enough crews on Standby or maybe even one crew on standby the flight would have operated.
Please pray tell how it is not the airlines fault.

[Avman]

Depends if the flight left the gate or not. If the a/c came off the blocks you could argue that it operated, albeit for a short period. As I understand it, pax were given free transportation and accommodation to LTN and put on the next available flight within a (relatively) short period of time. Frankly, under these circumstances I wouldn't even bother to claim as in my opinion the airline did everything possible under the prevailing circumstances. If you want dozens of a/c and crews to be standing by all around the country Spotty M, you might expect fares to increase ten fold!

[geoff1248]

A Little Further Info

Thanks for your responses thus far. On our return to the UK I contacted Easyjet by phone who immediately seemed to adopt a default position and deny everything. It was this that really got my back up. The crux of the matter is that they considered the flight to have been re-scheduled not cancelled. But a flight that has been moved to a different airport on a different day with a different flight number must surely be considered a replacement of a cancelled flight.
The a/c problem is something of a red herring as the Captain confirmed that it had been repaired and they were awaiting a replacement crew.
The solution to the problem was staffing not technical. Get a new crew and off we could have gone.
I have written to Eastjet and await their reply with some interest. Hopefully they will do the "right" thing and bring the matter to an end. However, being retired I have plenty of time to persue this as far as necessary should needs be.

[ExXB]

Every case is unique

I see what you are saying Mr. @ Spotty M, but we don't have all the information to say either it was, or was not extraordinary. For example the operator could have had the same day weather delays, atc delays, headwinds, etc causing them to call on their six or seven stand-by crews, then this one came along and they didn't have an eighth crew. IF that was the case I would say that it was extraordinary for them to require eight stand-by crews.

Situation is obviously different at an airlines hub and a non-hub. At EMA, which is not a hub for Squeezy, the airline won;t have the same level of maintenance support to fix a/c packs and they are less likely to have access to stand-by crews.

Geoff should get a response from Squeezy within the month. If he doesn't like it, or doesn't get it he should then go to the AUC. They will look at all of the facts (and Squeezy has to give them) and determine if indeed compensation is payable under the regulation.

From what we do know it appears to me that Squeezy wanted to operate, made a good effort to operate, but failed because of the circumstances some of which were outside of their control. Do they need to take care of their customers? Yes - and it appears that they did. Now had it been Cryanair ...

[The SSK]

Seems on the face of it that the crew would have been comfortably within hours to operate the outbound but possibly or probably not to do the return trip - requiring aircraft on the ground in Prague while the crew had their statutory rest. Therefore the flight was cancelled for purely commercial reasons. Qed

[WHBM]

Many delays are due to multiple reasons, the example above being typical.

1. Inbound aircraft scheduled for immediate departure again. That's what Low-Cost operators choose to do for their own cost efficiencies. So how can that be "outside the airline's control" ?

2. Mechanical fault, in this case with the AC, but it can be anything. Airlines are fully responsible to provide serviceable aircraft for the flight. So how can this be "outside the airline's control" ?

3. Crew scheduled tightly, so they now cannot complete the trip in hours remaining. No relief crew provided for such an eventuality. This is what Low-Cost operators choose to do. So how can this be "outside the airline's control" ?

4. Carrier chooses, in this case, not to cancel just the return sector, the only one where the crew would actually be out of hours, but the complete round trip, because it is more convenient to them to do so, and avoids costs of the aircraft standing overnight at an outstation. It also minimises any knock-on delays, all of which has to be reported to the relevant aviation authority in the periodic statistics. Better to report one cancellation than multiple delays. But all of this is an operational choice. So how can this be "outside the airline's control" ?

[ExXB]

You may have missed my point.

WHBM and The SSK
You may have missed the point I was trying to make. That was that we, out here in internet land, simply do not have all of the facts. Geoff, the victim doesn't have all of the facts to determine if, or if not, his situation qualifies for Compensation under the Regulation. The only one with all the facts is the airline.

Remember the Regulation is very poorly drafted (a direct quote from the German High Court) and it does not define many of it's terms.

An example. A network airline has an A321 to operate an evening European Flight. Just before departure a technical fault is found with the aircraft which can not be fixed before the airport closes. By chance an A319 is available and the original crew is qualified on this sister aircraft. The challenge? An A321 has 180 seats while a A319 has 124. Let's assume you had a full load of 180 passengers booked.

You are the airlines manager on site. What would you do? Put on the A319 and bump 46 passengers or simply delay the flight to the next morning? The answer may surprise you.

In the first case you deny boarding to 56 passengers and the Regulation does not provide for a extraordinary circumstances defence in such a case. Cost EUR600 x 56 = EUR33,600. These passengers also entitled to a re-routing on next available flight or a refund.

In the second case, you need to cover passengers hotel and meals but not compensation (which never applies in cases of delays). Let's be generous and assume a cost of EUR100. EUR100 x 180 = 18,000.

There is a third choice, simply cancel the flight. Passengers likely not entitled to compensation only a choice between refund or re-routing on next available flight. Those that choose re route entitled to hotac and meal, but no other direct expenses.

Now obviously a reputable airline is hopefully going to decide on the best choice for it's customer - option 1. Although 56 passengers are inconvenienced that's a lot less than 180. But not all airlines see it the same way.

This is one example of how through poor drafting this Regulation is not in the interest of the passenger, I've got others if you are interested.

[mzgoo]

I think you will find the flight was re-scheduled to go form ltn becuase there wasn't enought hotel rooms in the ema area. That is why your flight numbers first number had changed to a 9 from what ever it was before, because it was reschedued.

[The SSK]

ExXB, it's clear that the law assumes that commercial decisions which leave passengers behind on the ground constitutes come form of misconduct, which must be punished through the DBC scheme (and make no mistake - the second DBC package was intended to be punitive, not just compensatory).

What the law overlooks, as in the example you quote, is that a commercial decision to deny boarding may be actually be made so as to inconvenience the smallest number of customers. If you provide a 124-seat aircraft for 180 passengers then you are 46 overbooked and you must bear the full weight of DBC which at its core is an anti-overbooking instrument.

If you provide no serviceable aircraft at all for 180 passengers, then in the spirit of the legislation at least, you haven't overbooked them.

[AlpineSkier]

EU re-writing - or has re-written ? - regulation.

Because of the differing interpretations that airlines have been using for "exceptional circumstances" and the many complaints this has engendered, the Brussels intelligentsia has now clearly stated that aircraft faults/lack of crew etc which are completely controlled by the airline
( whether they can do anything about them or not ) are absolutely not "exceptional circumstances" and compensation is due.

Believe this was in "Der Spiegel" during the past couple of months..

Don't know if their saying it makes any difference or if they have to actually get the regulation re-written.

I would think the OP has a cast-iron case if he wishes to pursue it.

[geoff1248]

Cancellation or not?

Very interesting info. but it still does not answer the question of just what is a cancellation and what is a re-scheduling? Is there a definitive answer?

[The SSK]

In the distant past, when I worked in operatios, every flight had a trip number which, while not unique, was only repeated once every 1000 flights. If a flight was cancelled, that trip number was not used, there was a gap in the sequence.

I have no idea whether that system was peculiar to the (very large) airline I worked for, and whether it is still in use.

[geoff1248]

Update

I have received an e-mail from the carrier in which they refuse compensation and state that the flight was not cancelled but re-scheduled "due to Technical issues".
So the battle lines have been drawn and the following few weeks should be quite interesting.