How can laypeople investigate airlines' allegation of 'extraordinary circumstances'?

Question

Some airlines allege 'extraordinary circumstances', e.g. to deny liability and shirk compensating under Recital (14) of Regulation (EC) No 261/2004:

(14) 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.

1. How can passengers cost-effectively check if the airline's telling the truth, without and before a lawsuit? Doing so after the lawsuit looks foolish. as:

   2. a lawyer's fees can easily outstrip the quantum;

   3. a judge may not grant your subpoena/witness summons;

   4. if you learned that the airline were truthful only after filing the claim, then you'd lose and must pay legal costs (e.g. in Canada, England & Wales);

   5. the airline can falsify its records without a layperson's knowing it.

Answer 1

I'm unsure how much of it applies to travel instead of law. But we do have some court precedents here regarding EU compensation for delayed/canceled flight. Notably the EU top court ruled that technical problems cannot be considered such. I suggest checking this ruling, since it explains a bit how the process works.

For example the airline cannot just "claim" the circumstances, it needs to prove that the "extraordinary circumstances" happened to the Court's satisfaction. Now where it gets to the court, we're limited to certain jurisdictions (I have no idea how courts work in other places), so let's limit them to USA, the state of California - which is one of G7 countries you asked about:

• Q1 (and Q2): Here we have small claims courts where you do not need a lawyer. Fees are reasonable (and you can motion to get them back), and issuing a subpoena is free. If you go through regular court, the costs of subpoena become the court costs, which you can ask the Judge to grant if you win the case.

• Q3: Here the subpoenas are not granted by a judge. You bring them to the Court and the clerk just rubber-stamps them. The judge is only involved if there's an objection to subpoena (such as motion to quash) - in this case both parties go to a hearing before the Judge. And if the airline claimed extraordinary circumstances in the answer, I don't see how a Judge would quash the subpoena regarding this.

• Q4, legal fees: in the USA the "American rule" is that each party pays their own legal costs (there are few exceptions which shouldn't be applicable in your case), so you cannot be liable to their legal costs. Where this is not the case, the actual amount of fees is subject to court approval, and judges here are quite reserved in granting those. I do not know how those things work out in Canada or UK.

• Q4, filing: The majority of cases are filed 'on information and belief', and the evidence is collected during the discovery phase. This is normal practice; it is also normal to settle or dismiss the case in this phase (stats say the majority of cases filed are never trialed). So it is not foolish nor foolhandy.

• Finally Q5: IMHO record falsification should be the least of your concerns. First, the records for the circumstances described in your post would be largely outside the airline's control. Second, presenting a Court with a known false record is a separate crime - and the one the Court would take much more seriously than the original claim. Risk are too high.

Again, from personal experience I have filed five claims for delay/cancellation laws in last two years. Four claims were approved by airline, and only for one I had to sue in small courts - which was an easy case.

Answer 2

As far as EU Passenger Rights are confirmed, 2016/C 214/04 states:

Where the air carrier seeks to rely on the defence of extraordinary circumstances, such proof should be provided free of charge by the air carrier to the national enforcement body and the passengers in line with national provisions regarding access to documents.

I actually just filed a legal complaint with our national enforcement body because an airline claimed extraordinary circumstances but did not want to substantiate that claim.

Answer 3

This is getting heavily into law, and insisting on an answer that is generally applicable to G7 makes it even harder to answer. And on top of that, you haven't stated what the airline's claims are. Obviously checking whether there's been political instability is going to be different from checking whether the weather precluded safe operation on an aircraft.

But regardless, first step should of course to simply ask the airline what they are basing their claim on. They will probably give you some answer, although likely not to your satisfaction. If they do provide documentation, then that settles the issue. If they don't, and you later sue them, well, I'm not a lawyer, but it seems like common sense that if a party refuses to provide exculpatory evidence prior to a lawsuit being filed, the court should look dimly on them relying on that evidence during the proceeding, especially if they're asking for legal fees that they would not have incurred if they had simply disclosed the evidence.

Once you've given them a chance to resolve the issue informally, if you are trying recover expenses paid by a credit card, you can dispute the charges, at which point they will have to present their evidence to the credit card network if they wish to pursue payment.

Answer 4

Having worked as a Station and Ticket Agent for a commuter airline that shuttled domestic and international passengers between PGV and RDU airports in North Carolina - a state in a G7 country. Announcing flight delays were verbatim explanations for the disruption in service given by Flight Operations. Whether "extraordinary circumstances" resulting the delay were erroneous or intentionally inaccurate is a pattern identifiable. Before indulging costly litigation. The process that leads up to declaring disruption of service and resumption of service is documented and accountable via aviation regulation and individual Air Carrier policies published. I am no lawyer. I exercise this point base on experience learned doing the following:

As a layperson in the US know the details of your rights: https://www.transportation.gov/airconsumer/fly-rights

1. Here are an example and link to an article detailing how a layperson/traveler received compensation for delay and disruption of a US Carrier inbound international flight from Milian without litigation: https://qz.com/779914/how-i-got-american-airlines-to-pay-me-e600-for-a-delayed-flight/

To avoid litigation cost. Do your homework. Try to qualify flight delay(s) declared by the suspect carrier for pattern confirming "extraordinary circumstance."

2. Use the Freedom of Information Act (FIOA) for example. This tool enables an individual to petition the regulatory body that governs commercial air carriers that fly in US airspace for specific statistical information. Use these links as a starting point for research:

   • https://www.transportation.gov/foia
   • https://www.transportation.gov/aviation

3. Consider consulting Air Help or Flightstats to learn about options for filing for compensation from and verifying up to date flight performance for a given air carrier.

   • https://www.airhelp.com/en/
   • https://www.flightstats.com/

Answer 5

Just to add on other jurisdictions, China has a formalized procedure to inquire about the reason for a flight delay or cancellation from the Civil Aviation Administration, according to 《航班延误取消原因确认工作程序》 (Operating procedure to confirm the reasons for flight delay/cancellation) under certain circumstances:

1. The demand must be submitted by the passenger or a person authorized by the passenger; the authorized person must present a proof of authorization;
2. The passenger needs to submit proof of seat reservation or boarding;
3. The demand needs to include the accurate flight number, date of flight, ports of departure and destination;
4. The flight concerned must be a domestic/Mainland carrier flight, or a flight operated by Hong Kong/Macau/Taiwan or foreign carriers with the port of departure or any layover at an airport in Mainland China;
5. The passenger must provide valid contact information;
6. The demand must be made within one year of the flight date shown on the ticket.

It can be done online via the CAA Centre for Consumer Affairs at http://www.caacca.org.cn/ or by calling 010-64287798. They will inform and confirm to you the reason of delay/cancellation of your flight within three days (usually).

The procedure is mostly done in Chinese though, so you might need to find a Chinese-speaking friend to help.