Last week the Court of Justice of the European Union (CJEU) decided, in LE v Transport Aereos Portugueses SA (Case C-74/19), that a carrier is not liable for flight delay caused by an unruly passenger (a violent one, in this case) in instances in which the passenger’s behaviour can be characterised as extraordinary circumstances not inherent in normal air carrier activity and all reasonable measures were taken to limit the resulting delay (to the blameless passenger).
The facts and the points referred
The underlying claim was brought in Lisbon by LE who had made a reservation for a flight with TAP from Brazil to Oslo, via Lisbon, on 21 and 22 August 2017.
His arrival in Oslo was delayed by almost 24 hours as he had missed the second leg of the trip due to the first being delayed because the TAP aircraft’s previous flight from Lisbon to Fortazela had an unplanned diversion to Gran Canaria to disembark an unruly passenger who had assaulted other passengers and crew members.
Both legs of the trip were covered by the Denied Boarding Regulations (EC Regulation 261/2004, which also applies in Norway because of its agreement with the EU), meaning LE would ordinarily be entitled to compensation under the regulations (articles 5 and 7 in particular). TAP refused to pay and argued that the delay was due to extraordinary circumstances.
LE therefore brought proceedings against TAP in Lisbon and the local Tribunal Judicial de Comarca referred the following questions to the CJEU for a preliminary ruling:
- Does the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, fall within the concept of ‘extraordinary circumstances’, referred to in recital 14 of Regulation (EC) No 261/2004?
- Is an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger (the applicant in this case) has boarded?
- For the purposes of Article 5(3) of Regulation No 261/2004, does the analysis carried out by the airline (the defendant in this case), which concluded that sending another aircraft would not avoid the situation of delay and therefore the transfer of the transit passenger (the applicant in this case) to a flight scheduled for the following day, since the airline operates only one daily flight to the passenger’s final destination, correspond to conduct by the airline in which it took all reasonable measures, even if it was not possible to remedy the delay?
What the CJEU decided (its judgment can be found here.)
On the first, the CJEU’s starting point was recital 14 of the regulation: “As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” It then noted that case law has established that an “extraordinary circumstances” are matters which by nature or origin are not inherent in the normal exercise of the activities of the air carrier and is outside the carrier’s actual control (Germanwings C-501/17 and Finnair C-832/18).
The unruly behaviour of a passenger, such that it causes the pilot to divert the flight, is not inherent in the normal exercise of the activity of the carrier and is outside its control. However, if the carrier had allowed a passenger on board who was already displaying unruly behaviour before or during boarding, that should not be classified as an “extraordinary circumstance” because the pilot would have had authority to refuse to carry, or to disembark, that person as being a risk to the safety of the aeroplane or its occupants.
On the second, the CJEU noted that nothing in recital 14 or 15 or within article 5(3) of the regulation prevented the carrier from relying on ”extraordinary circumstances” affecting a previous flight operated by the same aircraft provided there was a direct causal link between the “extraordinary circumstances” and the delay or cancellation to the subsequent flight.
With regard to the third question, the CJEU determined that rerouting a passenger to arrive the day after originally scheduled would be a “reasonable measure” only if: either no other direct or indirect flight was available from that carrier or another carrier arriving earlier than the original carrier’s next scheduled flight, or where rerouting earlier than its next scheduled flight would amount to “an intolerable sacrifice for that air carrier in the light of the capacities of its undertaking at the relevant time” [a widely-cast formulation which certainly carries echoes of ‘would be unreasonable in light of all the circumstances of the case.]
It would appear from the decision in LE that unruly passenger behaviour can fall within the “extraordinary circumstances” defence available to carriers under the Denied Boarding Regulations and the Montreal Convention, but only where the passenger is not displaying any signs of the behaviour before or during boarding.
If a passenger is displaying unruly behaviour at any point before take-off, it is arguably within the pilot’s control and authority to disembark the passenger. But if he or she is not removed and goes on to cause a delay to the flight or injury to another passenger or crew member, it is unlikely the air carrier would be able to rely on the “extraordinary circumstance” defence. It is also clear that carriers must show they have used all endeavours available to them to attempt re-route a passenger and reduce the potential delay to their flight, which includes making enquiries with alternative carriers.
Although the Denied Boarding Regulations will no longer directly apply to the UK following the end of the EU implementation period (when the effects of Brexit take full effect at the end of December 2020), passengers from the UK will still be able to claim from carriers using the regulation if they are travelling to an airport in a Member State and their flight is delayed (subject to the threshold periods and flight durations specified in the regulation).
Written by Sandeep Aujla, Solicitor at BLM