Timothy Delaney was on his way to his mother-in-law’s funeral in Addis Ababa when he encountered an unexpected delay: His Emirates flight from London to Dubai was canceled after a de-icer accidentally rammed his jet.
“Luckily, they managed to schedule another flight the next day,” he says. “However, I arrived more than 24 hours later than planned and had to spend nights in London and Dubai — on Emirates tab, but with some hassle.”
Emirates was correct to accommodate Delaney during this mechanical delay. But is he entitled to more?
His rights are outlined in EU Regulation 261/2004, the controversial European law that protects airline passengers.
“I would be entitled to up to 600 euros if I read correctly,” he says. “I was expecting that they would at least offer me some miles and or a free flight or upgrade.”
But Emirates did nothing, other than apologize and point out that it had already taken care of him.
In its response, which was definitely no form letter, Emirates painstakingly laid out all of the things it had done for passengers that day — including paying for an upscale hotel and hot meals. It added,
Our staff worked extremely hard under challenging circumstances and many worked double shifts with little or no breaks in an effort to assist our passenger as much as possible during this disruption.
In other words, we bent over backwards to help you for an event that we had no control over. It also says further compensation would violate its own contract with passengers.
This flight cancellation was due to a “Force Majeure” situation, which was beyond the control of Emirates.
According to our Conditions of Carriage, which may be viewed on our website www.emirates.com, “Force Majeure” means unusual and unforeseen circumstances which cannot be controlled and the consequences of which cannot be avoided by taking reasonable care.
Emirates believes it owes him no compensation because the de-icer accident was an event beyond its control. In addition to its conditions of carriage, there’s a provision in EU 261 that exempts airlines from any responsibility when that happens.
Delaney doesn’t buy it.
I’ve been delayed and cancelled plenty of times in my life for weather related issues and I accept terming these cases “Force Majeure” but I did not realize that the incompetency of ground crew could be termed in this way as well.
Using this excuse in this situation, I could make a reasonable argument for anything as “Force Majeure” (pilot showing up drunk, someone forgot to change the oil, etc.).
I agree with Delaney’s interpretation of EU 261. And while there’s no doubt that Emirates tried its best to accommodate the stranded passengers in London, I think it’s sidestepping EU law. A European court in 2008 drafted a specific definition of “extraordinary” circumstances. It included defects revealed by the manufacturer or acts of sabotage or terrorism, but alas, no de-icers.
But how to fix this?
Delaney already tried the brief, polite email appeal to Emirates and got nowhere. I contacted Emirates, too, but it didn’t even bother responding to my inquiry.
As I see it, he has three choices:
1. He could sue Emirates in a European court. That could be expensive and may require him to travel. It might also take more time than he’s willing to spend. But he would almost certainly win.
2. He could send an appeal to a supervisor at Emirates. In the past, such appeals have been very successful. Managers do read their messages, but there’s still a chance the higher-ups might side with Emirates’ wrong interpretation of EU 261.
3. Delaney could try one of the new third-party mediation services like EU Claim that charge a commission and fees to negotiate EU 261 cases.
What would you do?
That would have been my first instinct, too. But Delaney went for door number three. Emirates paid up.
(Photo: Ear kle/Flickr Creative Commons)