Know your rights when your flight is delayed

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The television weather forecasts were showing swirls of white across the northeastern US. It may have been spring, but snow was on its way.

At John F Kennedy airport, British Airways was warning that our flight to London was delayed because of the high winds.

Almost three-and-a-half hours after our scheduled departure, BA announced we were leaving — but the winds had prevented ground staff from opening the hold doors. As a result, our luggage had not been loaded. There was also no food or drink on board.

Everyone was pretty good natured, given that most had had no more sustenance than a hastily grabbed snack and many of those with connecting flights would miss them.

The winds meant that we landed at Heathrow just short of three hours late — which I thought at the time was clever of BA because three hours is when compensation claims kick in.

Whether you can get compensation for flight delays depends on what side of the Atlantic you are. The US transportation department says airlines are not required to compensate passengers for delayed domestic flights and you may not have much luck claiming on international flights.

Bad weather and technical issues can delay flights and there is often not much carriers can do. “Airlines don’t guarantee their schedules, and you should realise this when planning your trip,” the department says. In other words: stuff happens. Get over it.

It is different in the EU, where a 2004 regulation aims to ensure “a high level of protection for passengers” and provides for compensation of up to €600.

As the US is usually depicted as a more compensation-happy culture, this difference is surprising. Perhaps the robust US attitude to flight hassles reflects America’s frontier-extending past — or possibly a more company-friendly regulatory culture.

But even the European regulation, which applies to all flights from the EU and those into the EU on an EU airline, does not make claiming compensation easy.

Airlines do not have to pay if the delay results from “extraordinary circumstances” which could not have been avoided if they had taken all reasonable measures.

These include political instability, security scares, strikes, air traffic restrictions and the weather. So my fellow BA passengers and I would not have been able to claim compensation even if we had arrived more than three hours late.

Airlines often used to refuse to pay out if the flight was delayed because of a problem with the aircraft, saying this was an extraordinary circumstance. However, two recent court decisions have changed that.

In the UK in 2014, the Court of Appeal decided in favour of a passenger called Ronald Huzar, who was delayed for 27 hours on a Málaga-to-Manchester flight with the airline

The company said that the cause of the delay was a wiring defect which it could not have spotted during aircraft maintenance or by visual inspection.

The judges disagreed. “The fact that a particular technical problem may be unforeseeable does not mean that it is unexpected,” the court said.

In September, the European Court of Justice reached the same conclusion over a KLM flight from Quito to Amsterdam that was delayed by 29 hours after one of the engines failed to start.

The court said the engine fault was not an extraordinary circumstance. “Since the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course . . . with such problems,” the court said.

This did not mean a technical fault could never be an extraordinary circumstance. It could happen if a hidden manufacturing defect affected an entire fleet. The court said the KLM aircraft appeared to be the only one affected by the problem.

People will have different views on whether it is right to claim compensation in these circumstances. Some might consider themselves happy that the airline puts safety ahead of getting them home on time.

But if you do decide to claim compensation, it is worth persevering. The UK Civil Aviation Authority said last year that some airlines were wrongly refusing to pay out.

And the EU regulation makes it clear that you do not have to accept a voucher. You are entitled to cash.
Twitter: @Skapinker

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