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.

  • LDVinVA

    I voted yes because the airline clearly was responsible for the delay. HOWEVER, it seems to me that the LW should not have planned to arrive in Singapore so close to the time the ship was scheduled to depart. Even flying in the US it is smart to build in some slack time for delays when travelling to cruises.

  • Jason Hanna

    Don’t see any difference between this and if it were a passenger who had a heart attack or otherwise became ill. So, for the EU 261.. Yeah, it’s extraordinary. Should the airline have done more? Most likely.

  • NearSeattle

    If they were given vouchers for breakfast and lunch, then it’s likely the flight was delayed at least 24 hours. I think that suggests that the OP had planned air travel to arrive a full day before the cruise departure. I hope we haven’t gotten to a point where we now recommend cruise passengers arrive TWO days early!

  • Bill___A

    What you have to do is to work out what a problem could cause in the way of delays. For example, if I were flying to London, and there was a problem, I would know that the delay could be a day because that’s when the next bunch of flights go, whereas if I were flying to a nearby city, unless it is weather, we are generally talking about hours. Rather than thinking it is “unreasonable” for a two day pre-arrival, one has to think of the actual logistics of the matter and the costs thereof. It is all a matter of personal risk management, of which they did not succeed in mitigating and suffered a loss because of it.

  • Alan Gore

    In general we are supposed to avoid putting a laundry list of complaints in our letters to Customer Service. But what if, as in this case, there really was a laundry list of problems on that specific carrier on their delayed flight? The only step the customer could have taken to avoid this mess would be putting in padding days before the cruise.

  • LDVinVA

    For travel halfway around the world, I do not think 2 days early is unreasonable. Within the US one day would probably suffice, unless it is January and you are flying from the snow belt.

  • Bill___A

    When there is a problem, it is acceptable to get the airline to help you but they are not babysitters. For example, on a delay, I might ask the airline if they can get me a better rate at a hotel or something. The pilot getting sick wasn’t the airline’s fault either.

  • pauletteb

    Once the OP started with the threats, he lost my sympathy.

  • Maria K. Telegdy

    A decent lunch meal for $15……what this person usually feeds on “four gras”? Just asking because a burger usually is around $8 even in a Hotel.

  • greg watson

    I voted NO, as the OP didn’t handle his request in a polite or thoughtful manner & never followed the chain up the ladder. It was vinegar vs sugar for me & he came across as being ‘entitled’. As for the other passengers, I couldn’t say. I don’t know their stories.

  • James

    Not everyone has unlimited vacation.

  • James

    It is not clear if these are American or Canadian dollars (15 CAD = 11.94 USD) I know of many places where $11.94 could not purchase a burger.

    Plus, a burger does not qualify as a decent lunch for people who do not eat beef, or may have other diet limitations.

  • MarkKelling

    Looking at the hotels around the St. John’s airport and there is not much selection. Since they did not mention the hotel in the article, anything is a guess about where they ended up.

    But looking at the various hotel selections, I see most state the price of morning breakfast average CA$20. I use Marriott as a good middle of the road price guide for hotel food and the last time I stayed at a Marriott near an airport, a burger and fries at the bar was US$16 plus drink, tax, and tip. That was one of the lower priced options too, with only a cheese pizza being less if you wanted hot food. So while the amount offered by the airline was helpful, it probably would not cover the total cost of those 2 meals at any of the hotels in that areas.

  • LDVinVA

    Of course not. But a trip from Singapore is likely to be a trip of a lifetime, so the last thing I’d want to do is risk missing part of it by not taking an extra day. Heck, even when we lived in central Florida we drove to Lauderdale a day early for cruises. Once we got stuck on the Florida Turnpike which has many miles between exits. We were SO glad to have allowed an extra day.

  • James

    But there is no evidence that it is a “trip of a lifetime” or the like.

    There is evidence that an airline set a schedule, and was unable to meet it. Saying that someone should plan an extra day, or two, (or more, when the next delay turns out to be three days) puts the burden on the traveler, and takes it off the airline. The focus should be on the airline meeting its published schedule, or providing adequate compensation when it fails to do so.

  • Carchar

    Would travel insurance likely have helped in this case? I always get a policy for foreign and/or prepaid travel.

  • sirwired

    I’d be willing to slot this under the “unexpected flight safety shortcomings” category…

  • michael anthony

    It’s one thing to be delayed to your cruise, but the laundry list of poor food, standing in lines, etc, kind of put me off.

    Pilots are medically monitored under strict schedule. Thus when a pilot falls ill onboard and The plane diverts, its almost always serious. Usually a heart attack or similar. And to me, since you can’t reliably predict a heart attack or other serious illness, its an unforseen circumstance. How can a carrier be responsible for this delay? They don’t have planes and crews in every city along a route, “just in case”.

    Unless someone can explain how a sudden and most likely life threatening illness can be planned for, I can’t disagree with the carrier. They couldn’t very well have continued across the Atlantic. Could they have done more? Sure, but considering where they diverted, their beginning options were not huge. Had it not been serious, most carriers turn around and at least get back to say Boston. Them diverting to St John’s, tells you alot.

  • Maria K. Telegdy

    It practically pains me to see this kind of people taking advantage of any little situation that is out of everybody’s control. I have had occasions, when not everything went according to my plan, but I never felt I need to take advantage of every little situation, because “situations” do accur, and savvy travelers should be prepared to deal with it. I love to travel and I take it, some peope just feel “wronged” beyond unforseen circumstances and they want to take advantage of every little aspect of reward then can milk out of the airline. Seems like this family knew very well what to DEMAND from the airline, but didn’t know how to deal with the circumstance. Period.

  • Maria K. Telegdy

    Plus I have a feeling they were prepared very well, how to make demands, but prepared very little how to deal with a situation that was out of everybody’s control. Would have been better, for the piloot to dive that airplane into the ocean and everybody perish, because this complainer can’t deal with a s ituation that was out of aveybodies control. And sir,(with all due respect) if you can eat airline food on the airplane, you can eat a burger too. Period.

  • Maria K. Telegdy

    But in their complaints letter almost forgot about the trip, they were hanged up on the breakfast and lunch allowance.

  • joycexyz

    On the advice of his daughter the lawyer. Sounds like her primary approach is intimidation–not very wise.

  • joycexyz

    Well, at least they didn’t claim their vacation was “ruined!”–an all-too-frequent complaint about relatively minor glitches.

  • LonnieC

    And my advice since retiring after nearly 40 years of practice: never threaten to sue unless you’ve already retained a lawyer, because once the threat’s been made, you’re not getting anything without going to court. Most threats to sue are made be very recent law school graduates.

  • Alan Gore

    If your vacation time is too limited to accommodate two padding days for a cruise that starts halfway around the world, then you should consider a cruise from one close gateway.

  • Maria K. Telegdy

    That’s why I just found it ridiculous that the food allowance was the main complaint, when their vacation wasn’t completely ruined. When it comes to travel so many things can go wrong, and nothing is written in stone. Travelers have to be flexible, and this situation is one perfect example, why I do not do “organized trips or cruises”……

  • Maria K. Telegdy

    OOPS, I did that myself once and I learned it is not the best approach to get results.

  • joycexyz

    Flexibility is always a good idea–anywhere in life. Why dwell on what you have no control over? We travel on cruises and go on organized tours because we prefer them. Occasionally things do not go as planned, but we know stuff happens. And we have so many happy memories.

  • Maria K. Telegdy

    Aug. 6th leaving for Argentina, returning Nov. 19……….will things go not as planned, but of course, but there are other possibilities. I just had to make my luggage 3 times so far according to the weather and the weather predictions, but as long as I will be prepared I’m sure I will enjoy it, especially since this is my second time there. So looking f orward to it.

  • joycexyz

    Long trip! And you’ll be there in 3 seasons–winter, spring and summer. The climate also depends on where you’re going (much warmer in the north than the south). My advice is dress in layers anticipating some cooler weather, and be prepared to shed. Beautiful country! We’ve been several times visiting family and look forward to going again soon. Bon voyage!

  • cscasi

    One good reason to plan one’s vacation and if one cannot allow the extra time, perhaps choose elsewhere to go. I realize that most times nothing goes wrong, but the Captain got sick and that is unfortunate . Nothing could be done in such a short period of time.

  • cscasi

    And there is no evidence that it wasn’t.

  • Maria K. Telegdy

    You are so righ. willl catch 3 seasons. Last time I was there was the same…..Going to Patagonia first…..To El Calafate/ElChalten from there up north. In the S. even if it is cold, at least is not as rainy…I’ve been there 5 years ago summer/autumn….did the winery tours and this time since it is going to be winter/spring I want to go to ESTEROS DEL IBERA, when the grass is low the animals can be seen better. Iguazu falls is on my list again, and of couse Colonia del Sacramento in Uruguay. I do dress layered, I have 2 of the “wicking” athletic shirts, those are indisposable for any travel. Thank you for all the advice. And if you’re going soon, Bon Voyage as well. Nice changing info here with you.

  • jsn55

    Never a good idea to take a lawyer’s advice when writing a letter of complaint.

  • jsn55

    What a frustrating mess. It seems odd to me that an airline has not put together a procedure to deal with a pilot who becomes ill. They’re not indestructible, so why should everything fall apart if they get sick? It must happen on occasion. If the plane must interrupt its journey, the airline should be able to deal with it far better than leaving passengers on the plane for hours. Obviously, and as usual, communication is always an issue. Rarely are problems like this handled well by an airline; and passengers suffer, seemingly needlessly. Surely a pilot could be dispatched by private jet from London or New York so the flight could proceed as soon as possible. Offload the plane, bring in some pizza and drinks, and make the passengers comfortable while you figure it out. Instead, passengers are treated with silence and inertia.

    Laying all the blame on Virgin, however, is not right. Travellers need to pre-think their itineraries. If you’re catching a cruise or group tour half way around the world, plan to arrive a few days, yes: more than 2, early. Be proactive, assume that bad things might happen and plan your itinerary so your entire trip is not ruined. Budget some money for meals, a hotel room and a taxi so you can just take care of things without the extra frustration.

    The last thing a passenger should do is write an impassioned, rude letter to Sir Richard. I can guarantee that it was not read past the first paragraph. Do a little research before you fire that rocket off; a businesslike approach may result in some relief.

  • Lindabator

    travel insurance would have worked wonders as well – but no mention of course (book an Asian cruise without it? I don’t think so)

  • Lindabator

    can still do those, but need to add enough buffer time for oopsies, and take out travel insurance — which would have covered him for these issues

  • Lindabator

    haha – agreed — or a salad, or a sammy, maybe some soup….lots of options

  • Lindabator

    but as it was a goodwill gesture, they are lucky they could take $25 bucks off the cost

  • Lindabator

    yep – especially with additional costs, the baggage snafu, and getting him caught up to the cruise – sad people can travel across the globe and not take it!

  • Lindabator

    +1000!

  • Lindabator

    again – they cannot “plan” for a heart attack, aneurism, stroke, etc

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