Bird strikes and runway debris: extraordinary, but only for the time it actually caused

Where a flight is cancelled, and where it arrives at the final destination at least three hours late, Regulation (EC) No 261/2004 may give a right to financial compensation. The exception is in Article 5(3): the operating air carrier escapes paying only if it can prove that the disruption was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The Court of Justice applies two conditions, both of which must be met: the event must not be inherent in the normal exercise of the carrier's activity, and it must be outside that carrier's actual control.

The bird strike was examined in Case C-315/15, Pešková and Peška v Travel Service, where the Court's Third Chamber held on 4 May 2017 that a collision between an aircraft and a bird is classified under the concept of extraordinary circumstances. The background was a flight from Burgas to Ostrava carried out on 10 August 2013 with a delay in arrival of five hours and twenty minutes.

Debris and spillage on the runway have also been examined by the Court. In Case C-501/17, Germanwings v Pauels, the Court held on 4 April 2019 that damage to an aircraft tyre caused by a foreign object lying on an airport runway falls within the concept of extraordinary circumstances: damage that is solely the result of such an object, which the carrier must prove, is not inherent in the normal exercise of the air carrier's activity, and since the carrier is not responsible for clearing the runway, the circumstance is outside its actual control. In that case a screw was found in a tyre of the aircraft due to operate the flight from Dublin to Düsseldorf on 28 August 2015. In Case C-159/18, Moens v Ryanair, the Court reached the same conclusion on 26 June 2019 for petrol on the runway which led to the runway being closed, but the ruling rests on an express condition: the petrol did not originate from an aircraft of the carrier that operated that flight.

The fact that an event is extraordinary does not mean the whole delay is protected. The Pešková judgment contains a rule that is easy to miss: where a delay has more than one cause, the part attributable to the extraordinary circumstance must be deducted from the total length of the delay in arrival, and only then is it assessed whether what remains reaches three hours at the final destination. The deduction requires the carrier to prove that this part of the delay was due to an extraordinary circumstance which could not have been avoided, and that it took all reasonable measures to avoid the consequences. If it has not done so, that time counts too. The three-hour threshold itself does not come from these judgments but from Joined Cases C-402/07 and C-432/07, Sturgeon and Others, where the Court held on 19 November 2009 that a loss of time equal to or in excess of three hours on arrival at the final destination may give the same right to compensation as a cancelled flight.

The same judgment also sets a limit on what the carrier may attribute to the bird strike. Where an expert authorised under the applicable rules has already checked the aircraft after the collision, and the carrier then has fresh safety checks carried out by an expert of its own choice, the Court holds that the second check cannot be treated as a measure appropriate to the situation; the delay it causes is not due to extraordinary circumstances. The Court also ruled on the second limb of Article 5(3): the reasonable measures include control measures preventing the presence of birds, provided that the carrier can actually take them, that they do not require it to make intolerable sacrifices in the light of the capacities of its undertaking, and that the carrier shows that those measures were actually taken as regards the flight affected by the collision. Only measures that are actually the carrier's own responsibility count, not those for which, for example, the airport or air traffic control is responsible. In Case C-159/18, by contrast, the Court held that a runway closure of that kind had to be regarded as a circumstance which could not have been avoided even if all reasonable measures had been taken.