Travel Law

Delayed flight after bird strike – no right to compensation

Germany’s Federal Court of Justice has ruled on passengers’ rights to claim compensation for a delayed flight where a plane hits a bird.

Delayed flight after bird strike – no right to compensation  © ferkelraggae-Fotolia

Delayed flight after bird strike – no right to compensation © ferkelraggae-Fotolia

Compensation for delayed flights

In a conjoined case, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) handed down judgment on passengers’ rights to claim compensation for delayed flights where a plane hits a bird.

The facts

The first case involved a passenger who had booked a flight from Frankfurt am Main to Banjul (Gambia) via Brussels (case ref.: X ZR 160/12). The second case concerned a passenger who wanted to travel from Fuerteventura to Hannover (case ref.: X ZR 129/12).

The first passenger had intended to travel from Banjul to Frankfurt on 18 January 2010. The plane was supposed to be arriving from Brussels. However, during landing the plan hit a bird and suffered severe damage to the turbine. As the plane could not be repaired in time, the airline was forced to send a replacement plane from Brussels. The replacement landed in Banjul on 19th January 2010. The passenger was able to fly that evening and landed in Frankfurt the next day.

The second passenger’s plane was cancelled as a bird had also hit the turbine. The passenger travelled with a second airline the next day and arrived 24 hours later than planned in Hannover.

BGH decision

The lower courts rejected both claims and the passengers therefore appealed. The BGH rejected the first passenger’s appeal.

It ruled that a bird strike is an extraordinary circumstance under article 5(3) EU Regulation (EC) No 261/2004, which regulates passengers’ claims for compensation where flights are delayed or cancelled.

The judges stated that bird strikes are external events, which airlines can neither foresee nor control. Taking measures to clear birds from a flight path is not something for which airlines are responsible, but airport operators.

The court added that the lower court had correctly decided that an airline cannot be expected to keep a replacement plane at the ready in Banjul and that there were no reasonable measures the airline could have taken in order to avoid the resulting delay.

The BGH set the second judgment aside and remitted the case to the lower appeal court to be heard again. The court stated that the appeal court had not reached a conclusion in the second case and so it was not possible to reach judgment on whether the airline had taken all reasonable measures to avoid the flight being cancelled following the bird strike.

The result of the case is awaited with interest.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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