The European Court of Justice on Thursday ruled that the sudden and unexpected death of an airline co-pilot was no excuse for Portuguese flag-carrier TAP Air Portugal to get out of paying passengers compensation for the subsequent delay to their flight.
The case was brought by a claims company which goes after airlines on behalf of passengers who have suffered a delay or cancellation after a TAP Airport Portugal flight from Stuttgart to Lisbon was delayed by nearly 13 hours when the co-pilot was found dead in his hotel room.
Under long-established European rules, consumers are entitled to compensation in the event of a significant delay, but airlines can get out of paying if they can prove the disruption was caused by an “extraordinary circumstance”.
In this incident, some of the passengers sought to obtain €400 each in compensation from TAP Air Portugal under the so-called ‘EC261’ regulations. The airline, however, denied the compensation claim, arguing that the sudden death of the pilot was an extraordinary circumstance.
The 17th July 2019 flight was scheduled to depart Stuttgart at 6:05 am, but the co-pilot had been found dead in his hotel room less than two hours before departure. The entire crew declared themselves unfit to operate the flight because they were so shocked by what had happened.
TAP Air Portugal had to find an entirely new set of crew to operate the flight, and it wasn’t until 11:25 am that a rescue crew departed Lisbon. The flight arrived in Stuttgart at 3:20 pm and then didn’t depart for Lisbon until 4:40 pm.
The claims company took the case against TAP Air Portugal to the Stuttgart Regional Court which referred the matter to Europe’s top court in a bid to establish whether the unexpected death of a crew member could be deemed an ‘extraordinary circumstance’.
Over the years, the definition of ‘extraordinary circumstance’ has been tested in the courts, and it is generally accepted that a delay or cancellation caused by a crew member suddenly falling ill is part and parcel of operating an airline and, therefore, not an extraordinary circumstance.
In its ruling, the European Court of Justice concluded that the sudden death of a crew member was no different.
“Such an absence is inherent in the normal exercise of the operating air carrier’s activity and therefore does not fall within the concept of ‘extraordinary circumstances’. It follows that the air carrier is not exempted from its obligation to compensate passengers,” the court ruled.
“The Court points out that, however tragic and final it may be, the situation of an unexpected death is no different, from a legal point of view, from that in which a flight cannot be operated when such a member of staff has unexpectedly fallen ill shortly before the departure of the flight,” the ruling continued.
Despite the fact that pilots undergo regular medical assessments, the court also dismissed this as grounds for appeal, ruling that a pilot could expectedly fall ill or die even if they’ve been given a clean bill of health in a recent medical assessment.
