A guide to the Peskova and Peska vs. Travel Service A.S case

Case facts

Claimant: Marcela Peskova and Jirí Peska

Jiri and his wife, Marcela were delayed by more than five hours when travelling on-board a SmartWings flight to Ostrava in the Czech Republic. The disruption was caused by the combination of a technical fault and precautionary safety checks carried out following an earlier bird collision.

  • Flight Number: QS 1379
  • Aircraft: Boeing 737
  • Route: Burgas (Bulgaria) – Ostrava (Czech Republic)
  • Flight distance / duration: 1065km (1 hr 35 min)
  • Scheduled flight departure date: 10 August 2013

Defendant: Travel Services AS (SmartWings)

SmartWings is the low-cost subsidiary of Czech airline, Travel Service AS. The Prague-based carrier schedules flights to numerous short-haul European destinations.

Courts:

  • Obvodní soud pro Prahu 6 (Prague 6 District Court), Czech Republic
  • Městský soud v Praze (Prague Municipal Court), Czech Republic
  • Ústavní soud (Constitutional Court), Czech Republic
  • European Court of Justice, Luxembourg
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What happened?

Flight delay circumstances

Marcela Peskova and Jirí Peska were over five hours late arriving in Ostrava due to a combination of factors. The claimants’ delayed SmartWings flight was the final leg of a scheduled circuit route which involved the aircraft flying from the Czech city of Prague to Burgas in Bulgaria, before heading to Brno in the Czech Republic and returning to Burgas again to take passengers to Ostrava in the Czech Republic.

A technical fault was found during the flight from Prague to Burgas, which took engineers at the Bulgarian airport approximately 1 hour and 45 minutes to repair.

In addition to this, SmartWings alleged that a bird had struck the aircraft while it was descending towards Brno Airport on the second leg of the journey. This necessitated lengthy safety checks, which were carried out by a specialist technician flown in from Slaný. No damage or traces of the bird were found during these checks and the pilot was subsequently given clearance to fly the aircraft back to Burgas as planned.

The knock-on effect of this disruption caused the flight carrying Peskova and Peska to depart several hours behind schedule. The pilot was unable to make up for the time lost during the flight and the passengers on-board arrived at Ostrava Airport 5 hours and 20 minutes late.

Legal action

On 26 November 2013, Mr. Peska and his wife initiated legal proceedings by submitting a joint claim to the Obvodní soud pro Prahu 6 (Prague 6 District Court), seeking compensation to the sum of €250 in accordance with EU Regulation 261/2004.

Obvodní soud pro Prahu 6 (Prague 6 District Court)

The court sided with the passengers, and on 22 May 2014 the presiding judge ordered Travel Service AS (owner of SmartWings) to pay the compensation requested. In explaining his decision, the judge reaffirmed his belief that the facts of this case could not be construed as ‘extraordinary circumstances’ due to the fact that the procedures followed by SmartWings’  representatives in the aftermath of the bird strike were as much to blame as the collision itself. The airline’s lawyers were unable to convince the court that it had done all it could to prevent a delay of this extent from occurring – in particular, the carrier’s decision to wait for a technician to be flown in from another airport was called into question and deemed unnecessary.

Městský soud v Praze (Prague Municipal Court)

On 2 July 2014 Travel Service officially lodged an appeal to the decision made by Obvodní soud pro Prahu 6 (Prague 6 District Court). However, two weeks later it was dismissed by Městský soud v Praze (Prague Municipal Court) as inadmissible and the original decision was upheld.

Ústavní soud (Czech Republic Constitutional Court)

A month after their initial appeal was dismissed, Travel Service decided to submit a further appeal to the Ústavní soud (Czech Republic Constitutional Court). Their appeal was granted and on 20 November 2014, the court reversed the original district court ruling on the basis that Travel Service’s right to a fair hearing before a statutory court was infringed when the district judge failed to refer the case in order to seek guidance regarding the classification of bird strikes.

However, the case needed to go back to the Obvodní soud pro Prahu 6 (Prague 6 District Court) for further consideration before a final ruling could be passed. The following questions were posed at the subsequent hearing:

  • Should bird strikes should be classified as ‘extraordinary circumstances’?
  • Are bird strikes inherent in the operation of a commercial airline, or beyond their reasonable control?
  • How is a delay to be assessed if it has been caused by a combination of factors?

Due to its complex nature, the case was referred on to the European Court of Justice for a preliminary ruling.

European Court of Justice

The European Court of Justice made its judgment on the Peskova and Peska vs. Travel Service AS case on 4 May 2017.

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Decision

Advocate General Yves Bot firstly reiterated that a technical fault (in this case, the premature failure of a valve component) does not constitute ‘extraordinary circumstances’ beyond the flight operator’s control because such components are inherent to the operation of an aircraft and the airline has a responsibility to ensure the aircraft remains in fully functional by implementing the appropriate maintenance procedures.

However, he went on to rule that the bird collision element of this case should indeed be considered as ‘extraordinary’ given that a bird strike (along with any damage it may cause) is not inherent to the operation of an aircraft and consequently cannot be construed as being within the carrier’s control.

Even if no damage is apparent following a collision, Travel Service AS was obligated to ensure the absolute safety of passengers. Bot concluded that carriers must not be encouraged to forego passenger safety by prioritising flight punctuality: “The air carrier cannot be obliged to take measures which would require it to make intolerable sacrifices.”

The delay caused in waiting for a specialist Travel Service engineer to be flown into Brno to conduct a further aircraft assessment was then considered by the court. It was subsequently ruled that Travel Service AS was within its rights to opt for a second safety check (carried out by Travel Service personnel) after dismissing the authorisation given by local third-party engineers.

In answering the question about combined delay factors, Advocate General Bot advised that any delays caused by unavoidable circumstances (e.g. bird strikes) must be deducted when calculating the overall delay duration for the purposes of determining claim eligibility.

After considering all of the above, the court concluded that SmartWings’ owner, Travel Service AS, would not be liable to compensate passengers. When deducting the time lost as a result of the ‘extraordinary’ elements of the delay (bird collision and subsequent safety checks), the total delay duration falls below the 3-hour threshold defined by EU Regulation 261/2004. Therefore the European Court of Justice ruled in favour of Travel Service AS and no compensation was due to Marcela Peskova and Jiri Peska.

Case significance

Peskova and Peska vs. Travel Service AS currently serves as a precedent case for all other EU ‘bird strike’ claims to follow.

It is a landmark ruling because it contradicts recommendations made by Advocate General Bot less than a year prior to this decision. Previously, Yves Bot had advised courts to consider bird strikes as inherent to airline activities due to the frequency in which such incidents occur. Bot’s previous recommendations had been followed by judges in numerous UK cases including Ash vs. Thomas Cook Airlines in April 2015, which saw the court rule in favour of the claimant after a delay was caused by a bird collision at a Turkish airport. When summarising at Manchester County Court, District Judge Iyer commented: “Bird strikes happen every day, in fact many times a day, and would hardly be worthy of comment but for the delay which they cause. They do not fall within the same category as a motorway collision between a car and my previous example of a horse, which would be extraordinary for the simple reason that our skies are populated with birds, whereas our roads are not populated with horses.” There is certainly a lot of logic in Judge Iyer’s statement, particularly as some airports (including Manchester) have gone to the extent of deploying birds of prey to deter other birds from flying into the surrounding airspace.

Ramifications

In 2015 alone, over 1,600 confirmed bird collisions took place in UK skies, as well as 267 near misses and in excess of 800 unconfirmed incidents. The European Court of Justice’s ruling therefore represents a huge blow to thousands of passengers that could have previously claimed compensation for bird-related flight disruption. Some legal experts have suggest that the Peskova and Peska vs. Travel Service AS case may have saved the airline industry as much as £60 million based on the number of claims that were dismissed in the wake of the judgement made in Luxembourg by Advocate General Bot.

It is therefore apparent that Airlines will benefit the most from Bot’s ruling given that they now have grounds on which to legitimately reject bird strike claims. The judgement was met with praise from several aviation organisations. Airlines for Europe (A4E), a trade association that represents the five largest European air carriers label it a “positive decision” – Head of Communications, Aage Dunhaupt, said: “The are certain things ‘we’ (airlines) cannot control. The first line of defence for bird strikes is the airport managers and air-traffic controllers taking preventative action." Although pleased with the court’s verdict, it is clear that A4E believe more needs to be done to protect European airlines. The representative body, which was formed in January 2016, has called for EU lawmakers to come up with “a more precise set of rules”.

Clearer guidelines may in fact benefit passengers as well as Europe’s airlines. The European Commission does have long term plans to amend the legislation but this has been put on hold while the row between Great Britain and Spain regarding Gibraltar Airport continues.

Making a claim

If additional factors were responsible for your flight delay, you may still be able to obtain compensation - contact Flight Delay Claims 4 U today and a dedicated claims advisor will examine the facts surrounding your case and use their expert knowledge of EU regulations to explore the legal options that are open to you.

There is no obligation and no initial fee; we give all of our clients the opportunity to claim on a ‘no win, no fee’ basis, with all costs recovered from the defending airline.