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I was on-board an afternoon flight from the EU, into the United States earlier last month.

This flight was delayed by about 3 hours, 30 minutes.

As this flight was delayed for over 3 hours, without any explanation provided to me, I contacted the Airline seeking compensation under EC Regulation 261/2004.

I've gotten a response back from them today, explaining that I'm not entitled to compensation as there was a fire alarm at the crew's hotel.
I assume this is the night before.

Is this a valid Extraordinary Circumstances exception under the EU 261/2004 Regulation?

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    You got the usual answer. This is normal. Just insist, but do not lose too much time. Prepare documentation for country authority. By insisting, you get from 10% to 60% probabilities to get compensation. With country authority you get 95% They just try to discourage people on valid cases.
    – Giacomo Catenazzi
    Commented Sep 16, 2019 at 15:54
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    Did the ground crew or flight crew truly not say anything about the reason for the delay? Regardless, you are entitled to evidence from the airline establishing that there really was an alarm and an explanation of why it delayed the flight. Do not believe anything they tell you unless it is supported by evidence from another source, preferably from a public authority like the fire department. As the article in Henning Makholm's answer points out, they have to give you the evidence to avoid paying the compensation; they can't get out of it just by making unsupported claims.
    – phoog
    Commented Sep 16, 2019 at 16:05
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    Airlines have standby crews (and aircraft). The level of standby crewing is set by economic factors (obviously related to the number of services that airline runs from an airport). I'd argue that if their standby provision is inadequate to avoid a service delay, that's the consequence of their business decision and they have to compensate. (The exception might be if it's a remote airport for that carrier where they run one flight a day or similar).
    – Rich
    Commented Sep 17, 2019 at 21:38

2 Answers 2

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The courts (up to and including the European Court of Justice, which has the final say) have followed a slightly zig-zagging course in interpreting the "extraordinary circumstances" concept, so it is not possible to predict with 100% certainty how they'd deal with a case such as this where there's no explicit precedent. The best one can say is that the ECJ tends to be pretty consumer-friendly in its application of 261/2004 -- but that is not a guarantee.

Originally it appears that "extraordinary circumstances" were intended to speak about Eyjafjallajökull-level calamities that might bankrupt even a well-run airline if they had to compensate for everything. Over time, airlines have gotten away with applying it rather more broadly than that, but the general trend is in your favor. For example, it has been decided that random equipment failures that delay one particular flight/aircraft is not an extraordinary circumstance but a risk of doing business that the airline ought to factor into their fares.

Here's a write-up from a law firm specializing in these claims that looks like a good overview of the binding precedent that exists.

Now, even assuming that you are entitled to compensation in your situation, you may have to sue (or make a credible threat to sue) the airline to collect on it. In principle you can ask the relevant National Enforcement Body for an intervention, but in practice they're pretty toothless when the airline is set on refusing compensation. So you would have to decide whether to

  • give up, or
  • duke it out yourself in small claims court (cheap but risky if the airline's lawyers can sow enough doubt about whether the circumstances are extraordinary are not), or
  • go to one of the many legal agencies that specialize in compensation claims on a no-cure-no-pay basis. They may or may not want to deal with your particular facts, given the legal uncertainty of how "extraordinary circumstances" apply here. On the other hand, even if they think it's an edge case that will be costly to litigate, they might still be willing to do so for their usual cut of compensation, as a loss leader for publicity reasons.
  • hire an ordinary practicing lawyer. If you can't get the compensation mills to touch the case, this comes with a great risk of costing you a lot of money for a small and uncertain gain, so be very careful about choosing this. In some countries it's common for home insurances to provide some legal cover, and if that is applicable to you the risk calculation might be different. Where this is available, typically the lawyer will deal with the insurance for you.
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    The article you link to suggests to me that the fire alarm would constitute an extraordinary circumstance, since it's not "inherent in the normal exercise of activity," but that the passenger is entitled to and should request evidence supporting the claim that there was a fire alarm and an explanation of why a fire alarm at that time delayed the crew.
    – phoog
    Commented Sep 16, 2019 at 16:06
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    I would always first try to make the claim myself, then try the national enforcement body and only use a "enforcement website" as a last resort. While you cannot force the airline to pay without a lawsuit, many will simply pay up when they see the you won't let go and the odds are against them. (Also the burden of proof is on the airline, not on you).
    – averell
    Commented Sep 17, 2019 at 6:24
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    I think the key to random equipment failures is that it covers equipment owned or at least maintained by the airline itself. It would be undesirable to reward sloppy maintenance, so it makes sense to assign that risk to the airline. But a fire alarm in a hotel? That's not under control of the airline.
    – MSalters
    Commented Sep 17, 2019 at 8:27
  • Can this sort of claim not be made through a small claims procedure, which is designed to encourage claims without the use of a lawyer, and where each side bears their own legal costs? (at least that is how it would be in the UK, and I believe throughout the EU). Recommending hiring a lawyer for such a small amount might be overkill, given that the costs would probably outweigh the gain. Also given that this is a relatively simple claim that a reasonably competent layperson could probably handle.
    – JBentley
    Commented Sep 17, 2019 at 10:58
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    @HenningMakholm I agree, but still, costs are always an important consideration too. Where the amount of the claim is small, and the court rules provide for each side bearing their own costs, using a lawyer is highly risky and probably not advisable. If it will cost you 5000EUR to recover 500EUR, and you can't recover your costs, then there are no circumstances in which it makes sense to use a lawyer. You are better off bringing the case yourself even with a lower chance of winning. An astute layperson can still mention the relevant cases, and the judge in such courts will act fairly.
    – JBentley
    Commented Sep 17, 2019 at 13:02
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As a crewmember, I can explain why I think this is an "extraordinary circumstances".

Crewmembers, especially flight deck crew, while on duty (this includes the time they spent at a destination) is controlled by many rules when it comes to "rest", how long they need to sleep and when can they drink alcohol, etc. Even rules regarding diving and skydiving are controlled as it might affect the crew health.

However, if the crew did not get the minimum required rest before a flight (usually 8-12 hrs of pure rest) they are considered "NOT LEGAL" to fly, as their performance might not be optimum and might cause a catastrophe, especially if the flight is a long haul flight (EU to US for example).

Lack of sleep can lead to something known in the aviation as "unsafe level of fatigue", which is known to be the reason of many incidents and accidents. Therefore, many countries, including the US and all of the EU and many other parts of the world, have very strict rules when it comes to crew fatigue, this is called "fatigue risk management".

I know that it seems "silly" to passengers who were delayed for a couple of hours, but flight crew are usually under great stress when flying and they are responsible for the lives of hundreds of passengers, they know that so they will never take a chance to operate heavy machinery while on an unsafe level of fatigue.

Back to your case, this has happened to me personally, you are sleeping at your room, it's 03:00 after midnight and you have a pickup at 08:00 in the morning, some guest in the hotel decides to smoke, fire alarms goes off, speakers all over the hotel ask the guests to leave the hotel, fire trucks arrive, etc. etc., the whole process will take anything from 1 hour to 2 hours.

The crew goes back to the room, can't get back to sleep, they call the crew control/flight operations and report fatigue, the crew control calculates the rest required and informs the crew, the passengers usually gets informed if the delay is significant and you know the rest of the story.

This is only happens if the crew are spending a night somewhere away from their base, if this happened at a crew base then some other crew will cover the flight.

Now, is this considered an "extraordinary circumstance"? my opinion: YES it is!

Who to blame? well, the guy who smoked? a faulty smoke detector? but for sure not the airline as they were simply ensuring the safety of the passengers.

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    I don't think "Who to blame" is a very useful question to ask when considering whether circumstances are extraordinary or not. For example, it is settled that a bird strike is not an extraordinary circumstance, and there definitely isn't anyone to blame for that.
    – hmakholm left over Monica
    Commented Sep 16, 2019 at 21:42
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    'As a crewmember, I can explain why is this "extraordinary circumstances"' I'd lose that sentence. You do a great job of explaining why the plan couldn't fly with a crew who hadn't had their statutory rest break, but then simply (and by your own admission) opine that it's an extraordinary circumstance within the meaning of the directive.
    – MadHatter
    Commented Sep 17, 2019 at 5:52
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    You explain well what could have caused the delay, but that does not automatically make it an extraordinary circumstance. Courts have ruled, for example, that when a part of the airplane breaks, it is not extraordinary: It is a thing that will happen sooner or later, and the airline needs to be prepared for that. On the same line it is possible that a court would rule that the airline should be organized in a way that they can get a replacement crew in time...
    – averell
    Commented Sep 17, 2019 at 6:05
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    The fire alarm is extraordinary circumstances. But only for the crewmembers and the hotel. The airline generally can prepare for lack of crew or working plane by having replacements (feasibility depends a bit on the airport in question). The circumstance of a missing crew is not much different from a plane breakdown. Henning's answer references a volcanic eruption as an example, where the airline could not reasonably prepare - there simply is no replacement for the sky available.
    – Chieron
    Commented Sep 17, 2019 at 9:14
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    This does not answer the question - it explains why the flight was delayed, not whether the airline can use that as an excuse to avoid paying compensation.
    – Nick C
    Commented Sep 17, 2019 at 9:24

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