For Delta, these “extraordinary” circumstances aren’t quite enough

By | May 14th, 2016

Gabi Tanis’ flight from Frankfurt to New York is canceled after a pilot falls ill. Isn’t she entitled to compensation under EU rules?

Question: My husband and I are Delta SkyMiles members and have generally been very happy with flying Delta Air Lines over the years. Unfortunately, last week we were confronted with a flight cancellation out of Frankfurt returning to New York.

Delta says the flight was canceled because one of its pilots fell ill. We had to pay for accommodations and meals in Frankfurt and waited until the next day of our return flight. Aren’t we entitled to some compensation under EU law? — Gabi Tanis, Audubon, Pa.

Answer: Yes, you are. EU 261, the European consumer protection law for airline passengers, should have applied to your flight.

Unfortunately, airlines try to weasel out of EU 261 claims with the extraordinary circumstances loophole, which was supposed to have been closed in 2008. Alas, American carriers continue to thumb their nose at the law.

You filed the right paperwork for an EU 261 claim, and you could have also appealed Delta’s denial to German aviation authorities, specifically the Luftfahrt-Bundesamt.

But it turns out you were more interested in getting some compensation, as opposed to the legally required compensation. That’s understandable.

When I asked Delta to review your case, it stuck to its original position. “This delay was out of our control because there was no way we could have known our pilot would become too ill to work and it isn’t feasible to have a spare crew in every city we fly,” a representative said.

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That doesn’t align with a previous court ruling, which suggested issues such as crew shortages were indeed within an airline’s control and could not be considered an “extraordinary” circumstance. Having an extraordinary circumstance means no compensation is due. I can’t force Delta to see things my way; the only way to fix this is by taking the airline to court. In Europe. That’s something Delta knows you won’t do.

That’s the bad news.

The good news?

“We should have paid for your hotel and meals when you had to stay an additional day in Frankfurt,” says Delta.

Under EU 261 — the part Delta is choosing to follow, at least — when a flight is canceled or delayed over five hours, passengers should be confirmed on the next available flight. Depending on the length of a passenger’s delay, airlines are required to provide care and assistance as follows:

  • Meals and refreshments according to the wait time.
  • Hotel accommodations if necessary.
  • Transportation to and from the hotel.
  • Two forms of communication i.e. telephone, fax, or email.

Delta agreed to cover your lodging and meal expenses, a resolution you were happy with.

Update: Tanis adds the following.

I never asked for compensation from Delta for meals and accommodations since Delta provided all of that to everyone booked on that flight once it was canceled. What I did ask for was compensation according to EU 261. What my husband and I ended up getting from Delta were “bonus” frequent flier miles credited to our SkyMiles accounts, but there was no monetary compensation from Delta.

Thank you for the update.

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  • Harvey-6-3.5

    It sounds like the OP was being very reasonable here, just wanting the hotel and meals covered, not anything else, so I’m unclear why Delta refused, since their alternative would have been to sue using one of the services available and they might well have won more compensation.

  • Alan Gore

    Legally this is the same thing as a mechanical, and involves the same burden of accommodation for the carrier. A much more common example of this category of problem in the US is “crew not available” because they’re not in position for the flight or are “expired” in hours.

  • SierraRose 49

    Disheartening that Delta tried to weasel out of doing what is not only legally required, but the right thing to do as a transportation business. It seems anymore “push has to come to shove” before passengers get what they rightly deserve. Delta caused us to miss a connection in Paris (4 hours; 20 minutes on a tarmac at JFK trying to get the jet fixed) and the next carrier – Air France – bent over backwards to get us on another flight; even gave us 32 euros for lunch. And if they couldn’t get us on board, they were ready to put us up in a nearby hotel with meals and transportation. Imagine – taking care of us for a problem they didn’t create. Delta’s attitude was too bad, so sad, good-bye, good riddance.

  • Steve Rabin

    The ‘extraordinary circumstances’ ploy is garbage. They just want don’t want to pay up, but rules are rules. I fully understand that it would cost them a ton of money, but unfortunately this is the cost of doing business in the EU, and foreign airlines are not exempt (although they do get a break since flights TO the EU on foreign lines do not have to meet these rules, but EU carriers do). If I were the OP, I would still go after them for the 600 euros/head…I doubt strongly the German government would consider pilot illness extraordinary…it happens.

  • just me

    It is a fallacy that you need to take Delta to court in EU. Nearly any Court in the USA has the authority (jurisdiction can be based on where you are, or where the Delta lands near you) to hear the case and our laws give judges authority to apply EU law to the facts – you just need to bring the law and EU court rullings for the judge to learn and apply. Your local small claims court would be perfect.
    But I would start with a claim sent to German regulator (so called National Enforcement Body):

    Luftfahrt-Bundesamt (LBA)
    DE – 38144 Braunschweig
    Tel.: +49 531 – 23 55 115
    Fax: +49 531 2355 1197
    fluggastrechte@lba.de
    http://www.lba.de

    The list of all EU enforcers of EC 261/2004:
    http://ec.europa.eu/transport/themes/passengers/air/doc/2004_261_national_enforcement_bodies.pdf

  • The Original Joe S

    Good informative post.

  • joycexyz

    Seems like anything and everything is “extraordinary circumstances” to the airlines. So…what are “ordinary circumstances”???

  • Realitoes

    While you may be able to file a case, the Seventh Circuit Court of Appeals in Volodarskiy v. Delta, has already ruled their is no standing to enforce EU 261 in a US Court, either as a breach of contract or a direct claim:

    “…EU 261 is not incorporated into Delta’s
    contract of carriage, so the claim is not cognizable as a breach
    of contract. The plaintiffs concede the point and press only a
    “direct” claim under the regulation. But a direct claim for
    compensation under EU 261 is actionable only as provided in
    the regulation itself, which requires that each EU Member State
    designate an appropriate administrative body to handle
    enforcement responsibility and implicitly limits judicial redress
    to courts in Member States under the procedures of their own
    national law..”

    “Accordingly, for the foregoing reasons, we conclude
    that EU 261 is not judicially enforceable outside the courts of
    EU Member States.”

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-10/C:13-3521:J:Sykes:aut:T:fnOp:N:1532328:S:0

  • AAGK

    This is wrong.

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