CANCELLATION OF A FLIGHT DUE TO THE UNEXPECTED DEATH OF A CO-PILOT DOES NOT RELIEVE AN AIRLINE OF ITS OBLIGATION TO COMPENSATE PASSENGERS

#97Cancellation of a flight due to the unexpected death of a co-pilot does not relieve an airline of its obligation to compensate passengers

On 17.06.2019, TAP Portugal was due to operate a flight between Stuttgart (Germany) and Lisbon (Portugal) at 6.05 a.m. At 4.15 a.m. on that day, the co-pilot of the flight in question between Stuttgart and Lisbon died. The crew of the flight in question declared themselves unfit to fly because they were shocked by the sudden death of the co-pilot. For that reason, TAP Portugal cancelled the flight. The passengers who were due to fly at 6.05 p.m. were to be transported to Lisbon on an alternative flight, which was not scheduled until 4.40 p.m.

Many passengers exercised their rights arising from the cancellation of the 6.05 flight between Stuttgart and Lisbon. However, TAP Portugal refused to pay the passengers the compensation for flight delays provided for in Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. TAP Portugal argued that the unexpected death of a co-pilot constitutes an extraordinary circumstance which exempts the air carrier from the obligation to pay compensation.

The parties therefore applied to the Regional Court of Stuttgart, which asked the Court of Justice to interpret Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

The Court of Justice has held that measures relating to the staff of the operating air carrier, such as those relating to the scheduling of crews and the working time of staff, fall within the normal course of the carrier's business. Accordingly, the unexpected absence of one or more members of staff, even shortly before departure, must be regarded as an integral part of the normal course of the operating air carrier's business and therefore does not fall within the concept of extraordinary circumstances. For the reason that sickness or death is linked to the issue of crew planning and the scheduling of staff working time, which is part of the normal conduct of the business of the operating air carrier. It follows from the above that the air carrier TAP Portugal is obliged to compensate passengers for flight delays as provided for in Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

According to the Court of Justice, an unexpected death is not legally different from a situation in which a flight cannot take place for reasons other than the unexpected illness of a crew member shortly before departure. Accordingly, the mere absence of a crew member, for whatever reason, constitutes an event inherent in the normal course of the carrier's business and, therefore, that carrier must, when planning its crews and the working time of its staff, take account of the occurrence of such unforeseen events and the absence of one or more crew members from the flight to be operated.

As regards the fact that the crew member in question had passed, without restriction, the prescribed periodic medical examinations laid down by the applicable legislation, the Court adds that that conclusion cannot be called into question, since anyone may fall ill or die unexpectedly at any time.

In conclusion, we note that the death or illness of a crew member of a flight to be operated and the subsequent delay of the flight give rise to a right of passengers to compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.