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Flight Delay and Cancellation
A very difficult concept-beware of over-simplification.
You may have already seen the complexity
of the “extraordinary
circumstances” defence contained within EU 261/2004.
The other great area of potential contention within EU 261/2004
relates to the difference between a delay and a cancellation.
Airlines will seek to argue (when it suits
them) that a flight continue to be delayed, even if this “delay” extends
12 hours, overnight, 36 hours or even more.
Passengers and other allied interests (including some judges)
have taken the view that after a period of time (and/or) intervening
factors that a delayed flight can exhibit the characteristics
of a cancelled flight.
Much as with extraordinary circumstances some very deep analysis
is required to explore the relationship between a delay and a
cancellation. Some of this debate verges on the philosophical.
As with extraordinary circumstances to understand this subject
requires patience and not a little effort.
Grandfather’s
axe-beware of labels!
Flightmole.com strives to unravel some of these intricacies.
The “flight delay and flight cancellation conundrum” can,
on a certain simplistic level, be compared with “grandfather’s
axe”.
This is an English/British concept-perhaps it is called something
else in other countries. It relates to the continuing labeling
of the old axe in the tool-box that used to belong to your grandfather.
The axe that delights in being called “grandfather’s
axe” has over the years had 3 new handles and 2 new chopping
heads.
So what is still called or labeled “grandfather’s” axe
was not the same tool that your grandfather used. The constituent
parts have changed but the label remains.
Thus it is with an airline flight. The label
(in the simple form of the Flight number label) can still be
applied to the
flight but is the original flight still in being? If the constituent
parts or qualities of a flight change, the overall character
of the flight might be sufficiently changed such that the “eventual” flight
can not logically by the same “flight” as was original
scheduled.
This is an airline’s version of grandfather’s axe.
An airline can call the eventual flight “grandfather’s
axe” but it may not be logically correct to say that the
flight shares sufficiently with the “original” flight
to describe the flight as simply a delayed version of that flight
that was originally intended.
Much has been suggested concerning the most
obvious label applied to a flight –its flight number.
It is sometimes the case that when a flight
is delayed considerably that the airline labels it with a new
flight number. Much emphasis
has been placed upon this labeling as providing evidence that
the original flight has been replaced by a “new” flight
and hence the original flight has been replaced and de facto
has been cancelled.
Other commentators have placed great emphasis upon the time
delay of the flight and the presumption that after a certain
period of time a flight should be presumed to have been cancelled.
However are there any other constituent qualities inherent within
a flight that could be altered by circumstances and/or by an
airline which could alter the original qualities of a flight.
Flightmole believes there could be a great many such qualities
related to a flight that could support or militate the respective
arguments as to whether a flight has been delayed or merely cancelled.
Some of these are relative straightforward-some of these more
complex.
For example, if an airline delays a flight but at the same time
decides that it will book additional passengers on-board this
flight has it changed the character of the flight irrevocably?
Has the character of the flight altered
if the manifested number of passengers increases during the
currency of the flight delay?
Flightmole would argue that this could vary the character of
the flight considerably and create a “new flight”
What if the flight crew is substituted/changed or the type of
aircraft or the routing of the flight has been changed?
The flight number is just one label or marker. Many other factors,
including but not limited the time of the delay, may be significant.
There has been recent reference to the European Court to attempt
to determine some of these difficulties.
Until clear and unequivocal judicial guidance is provided, or
indeed that EU 261/2004 is amended to provide more specific demarcation,
the difficulties of the delay or cancellation conundrum will
remain.
However, as with “extraordinary circumstances”,
just because an airline labels a flight as delayed does not mean
that it is rightly classed as cancelled any more than an airline
relies on “extraordinary circumstances” which on
an objective assessment are fair from extraordinary.
Flightmole will provide an expert review of your case and advance
this on a no-win no fee basis.
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