Our pilot’s sudden illness caused a flight diversion. Is this an “extraordinary circumstance?”

A sick pilot is definitely an unusual circumstance on a flight. But is it an “extraordinary circumstance” that would exempt the airline from having to compensate the passengers, such as Frederick Brodzinski, for expenses and losses?

Virgin Atlantic thinks so.

EU 261, the European Union law governing consumer protection for air travelers, doesn’t have clear language applying to Brodzinski’s situation. So we’re asking you to help us decide if he deserves more compensation.

Brodzinski and his wife were flying from Newark Airport to Heathrow Airport in London, and onward to Singapore, where they were supposed to begin a cruise vacation. The ship was sailing from Singapore through Malaysia and Thailand, and the Brodzinskis had prepaid for transportation from the Singapore airport to the ship, as well as for tours in Kuala Lumpur, Malaysia.

Unfortunately for the Brodzinskis, their flight to London was diverted overnight to St. John’s, Canada, when the captain became ill. This caused the Brodzinskis to miss their connection to Singapore and the beginning of the cruise. And that, according to Brodzinski, led to assorted other problems that forced him and his wife to incur over $1,700 of expenses.

Brodzinski wrote a long letter to Sir Richard Branson, founder of Virgin Atlantic, detailing the troubles he and his wife endured as a result of the diversion. Here are excerpts:

No one told us what the problem was on the aircraft. We landed in St. John’s and no one had an idea as to what we were doing. We sat in the plane for 4 hours. First, we were told another plane was coming to get us and we had to wait. Finally, they told us to get off the plane.

Then we were told there were school buses to take us to a hotel. This took over an hour and a half of standing in line. Then we got to the hotel and another hour and a half in line to get a room. Almost nine hours passed by the time we got to our room. All of us were lacking sleep, upset and hungry. Then we were told we could spend $10 for breakfast and $15 for lunch. Given the prices in the hotel, there was no way to have a decent lunch for $15.

We called [Virgin Atlantic’s] customer relations from St. John’s and notified them we would need transport to the next port of call in Kuala Lumpur and that there was a Malaysia Air [flight] scheduled that would get us there in time to board the ship. When we arrived in London your representative greeted us and handed us tickets to Singapore. We clearly said over the phone [that] our ship was already gone. We spent another two hours to change the tickets.

I asked [the representative] if we should secure our luggage and he informed us that Heathrow had a “very sophisticated baggage system” and our bags would be transferred and we had nothing to worry about. [He] arranged tickets on the much cheaper Air Malaysia flight — terrible airline, very small uncomfortable seats, poor service, horrible food, and we landed in Kuala Lumpur. We were informed that our luggage was still in London but it would be there by 7 p.m. However, our ship departed at 6 p.m. We informed Air Malaysia that our luggage would have to be shipped to the next port of call.

Given that we were in the same winter clothes and boots for four days and would not get our luggage for at least two days, we had to purchase basic clothing for the climate we were now in, appropriate dress for dinner, toiletries and personal hygiene. We request reimbursement for that expense. Also, we had to pay [a] port fee to claim our luggage. We ask that [this] fee be reimbursed. One of our suitcases was damaged in transport. The wheel on the bottom was pushed in and cracked and no longer was operational.

We are willing to compromise. We will accept the 600 euros per person we are entitled to according to European law because of the length of the delay. Additionally, you must train your staff how to operate during a crisis. We were deeply hurt and unfairly treated.

But Brodzinski didn’t get the resolution he was looking for. We reached out to Virgin Atlantic, but we were told that the airline considers the pilot’s illness an extraordinary circumstance under EU 261.

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Here’s what EU 261 has to say about “extraordinary circumstances”:

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. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.

This language is ambiguous as to whether a diversion caused by a pilot’s illness would qualify as “an air traffic management decision in relation to a particular aircraft on a particular day.” It’s arguable that a pilot with a medical condition that would require him to be removed from a flight should never have been allowed in the cockpit in the first place, but it’s also arguable that the onset of illness can be extremely sudden, and that it would qualify as an “extraordinary circumstance” if it forces a pilot to divert an aircraft in flight.

Virgin Atlantic’s conditions of carriage indicate that in the event of a delay,

9.2 Delay
9.2.1 For operational reasons or unusual or unforeseen circumstances, delays may occur, but we will take all reasonable measures to avoid delay in carrying you and your Baggage. In the exercise of these measures and in order to prevent a flight cancellation, at our discretion we may arrange for a flight to be operated on our behalf by another carrier and/or aircraft.
9.2.2 If we reasonably expect a flight operated by us to be delayed beyond its scheduled time of departure for four hours or more where you hold a Confirmed Reservation for the flight, have met the applicable check-in deadline and are not precluded from boarding by reason of application of Articles 7.1 or 11.3 or for what we consider to be other reasonable grounds, you will be offered any applicable rights and remedies under any applicable laws.

The conditions of carriage also allow for liability for the damaged baggage for up to 1,131 Special Drawing Rights per passenger. Brodzinski could make a claim for the damage to his luggage for 2,262 SDRs (approximately $3,000).

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But his letter is a sterling example of how not to self-advocate. First, he sent it to Sir Richard Branson, the founder of Virgin Atlantic, rather than starting with an executive at the customer service level, giving that person a week to respond, and then escalating up the corporate hierarchy to the CEO, Craig Kreeger. (Executive contact information for Virgin Atlantic is available on our website.)

Then there’s the letter itself. It contained a laundry list of complaints, accused Virgin Atlantic’s personnel of “incompetence,” and mentioned threats to “write an article regarding our experience and publish [it] in every social media and travel magazine” (a suggestion that he attributes to his daughter, a lawyer). I doubt Branson or anyone else at Virgin Atlantic read the letter, let alone would have been moved by it to assist Brodzinski.

And although he found Virgin Atlantic’s staff to be “incompetent,” they did pay for a night in a hotel room, as well as meals and refreshments, which they weren’t required to do under EU 261 or their conditions of carriage. But was that enough, given all the problems the Brodzinskis experienced as a result of the diversion?

Should Virgin Atlantic have provided more compensation to the passengers aboard Frederick Brodzinski’s flight?

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Jennifer Finger

Jennifer is the founder of KeenReader, an Internet-based freelance editing operation, as well as a certified public accountant. She is a senior writer for Elliott.org. Read more of Jennifer's articles here.

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