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Hi all,
I’d previously posted about this on here, with people advising that my claim should be accepted. My flight from Bologna was delayed by nearly six hours due to damage caused by a luggage container being incorrectly loaded, and needing the plane to be signed off as airworthy after the container had been removed. Having not heard anything since I submitted, I queried again with BA this week, and have now received this response:
“Your claim’s been refused because BA0543 on 31 August 2023 was delayed due to damage caused during loading in Bologna.This service is provided by a third party and I’m afraid this meant we had no option but to delay your flight.”
Just wanted to check if anyone in a similar situation has had any luck further following up something like this, and if so what would advise I do? To have a six-hour delay with no compensation whatsoever seems a little cheeky!
Thanks,
Rich
I didn’t see your previous post but I can see where BA is coming from – if the plane developed a fault which required maintenance, that would be on them, but they have no control over the loading of cargo, presumably that is done by a 3rd party at Bologna? So the damage in this case was beyond their control, though of course that’s just my 2 cents!
You should have been able to claim for any meals you had to buy and other essential expenses occurred during the delay period.
Well, this is one of those cases that could go either way depending on the very specific circumstances, who was responsible and their legal relationship with BA. Your friend is an old CJEU case from 2014 – Siewert and Other v Condor Fulgienst Case [ref C-394/14] involving a similar situation with steps damaging the aircraft.
You will almost certainly need to escalate to CEDR or MCOL to determine the matter. The former is preferable in that you don’t want to pay a court fee only to find that BA’s ‘extraordinary circumstances’ defence is accepted but on the other hand CEDR is perhaps more likely to swallow BA’s story.
In essence, the people/company responsible for the incident were most probably BA’s agents so the airline shouldn’t be able to shake off responsibility that way. They may argue that it was a freak incident sufficiently rare to constitute ‘extraordinary circumstances’ and/or that it wasn’t BA’s decision to await airworthiness sign off but a regulatory/legal requirement outside their control as a matter of fact and timing.
@RichJ – one additional thing is that if you write a letter before claim, it’s probably worth including that you intend to apply to the court for specific disclosure as to whetter BA has paid delay compensation to any passenger from any jurisdiction in respect of this flight. It will concentrate their minds. If you proceed to MCOL, you can add this at the end of your particulars of claim (even though that’s not strictly the right place to ask). You can also ask in your CEDR submission but there is no obligation for BA to respond.
It might also be interesting to ask for disclourse as to whether BA was compensated by the 3rd party and/or specific insurance for the issue and did any payout include loss of revenue due to the flight not flying.
It might also be interesting to ask for disclourse as to whether BA was compensated by the 3rd party and/or specific insurance for the issue and did any payout include loss of revenue due to the flight not flying.
It would be a serious mistake to ask for that disclosure – it will be dismissed as it is not relevant to the OP’s claim. It is very important neither to overstate one’s claim nor ask for things that make the claimant seem vexatious. Focus on the prize, not just trying to cause trouble.
Well, this is one of those cases that could go either way depending on the very specific circumstances, who was responsible and their legal relationship with BA. Your friend is an old CJEU case from 2014 – Siewert and Other v Condor Fulgienst Case [ref C-394/14] involving a similar situation with steps damaging the aircraft.
You will almost certainly need to escalate to CEDR or MCOL to determine the matter. The former is preferable in that you don’t want to pay a court fee only to find that BA’s ‘extraordinary circumstances’ defence is accepted but on the other hand CEDR is perhaps more likely to swallow BA’s story.
In essence, the people/company responsible for the incident were most probably BA’s agents so the airline shouldn’t be able to shake off responsibility that way. They may argue that it was a freak incident sufficiently rare to constitute ‘extraordinary circumstances’ and/or that it wasn’t BA’s decision to await airworthiness sign off but a regulatory/legal requirement outside their control as a matter of fact and timing.
Thanks JDB, this is extremely helpful. I suspect they will claim that the luggage handlers in Bologna are not their responsibility, and that it’s an extraordinary circumstance. In any case, thanks again for the advice, and I’ll certainly have a look at that case you quoted to see if there’s any potential overlap.
I’m surprised by this rejection by BA. If the baggage handling company is external to BA’s operations and caused the damage then the cost of repairs to the plane would be an insurance claim against the baggage handling company. Therefore BA could simply include the EC261 compensation claims in the wider insurance claim.
And it is not unknown for ground handling incidents to occur which damage aircraft. While they may be unusual the do occur during the normal course of operations. So I can’t really see how BA can say this is extraordinary circumstances.
Several years ago I worked at LSG Skychefs and one of our catering trucks hit a brand new Qatar Airways plane that had flown its inaugural flight into LHR. The cost of re-accomodating passengers on any other flights plus hotels and meals for those unlucky enough to be delayed overnight was all billed to LSG. The plane was grounded for 2 weeks and the parking fees plus of course the repairs to the plane together with the recertification to fly were also billed to LSG. The figures were eye-watering.
.
Focus on the prize, not just trying to cause trouble.
Lol !
@RichJ – one additional thing is that if you write a letter before claim, it’s probably worth including that you intend to apply to the court for specific disclosure as to whetter BA has paid delay compensation to any passenger from any jurisdiction in respect of this flight. It will concentrate their minds. If you proceed to MCOL, you can add this at the end of your particulars of claim (even though that’s not strictly the right place to ask). You can also ask in your CEDR submission but there is no obligation for BA to respond.
Can you ask for specific disclosure with Aviation ADR?
@Richie – the simple answer is no. There is not really a proper basis for asking for any disclosure within the small claims track but I suggested it as, in the specific circumstances of the OP’s case, it was something that might just unlock his slightly unusual case. I rather regret that now as it was followed by a rather bizarre and incredibly twattish comment that risked compromising people’s cases as well as exposing them to the risk of costs if his ‘advice’ were followed.
If you are planning a submission to AviationADR there is nothing to stop you referencing potential information the airline could be asked to provide to the adjudicator in order to assist your case. Such requests need to be fairly specific and clearly relevant to your case to have any prospect of success. A general fishing expedition is likely to backfire.
Thanks @JDB noted.
Following the excellent advice on here (thanks @JDB!) I replied to BA’s original refusal, citing the case that was suggested. TO be honest I had given up any hope of this working, and have been meaning to file the CEDR claim for a couple of weeks (just never got around to it). Then today I received this:
“We’re sorry you’re unhappy with the outcome of your claim and we understand why you needed to get back in contact with us about this.
I’ve had another look at your claim for compensation and I’ve taken time to make sure our response is accurate and up-to-date. Upon further investigation, I’m pleased to advise you’re entitled to compensation for the delay to your flight…”
What a result! So thank you again for everyone’s comments, and here is the evidence of a positive outcome from initial refusal.
Excellent result Rich J!!!
Hopefully the funds will be with you soon 🙂
@RichJ – really pleased to hear that; thanks for letting us know, and well done!
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