Europe’s judges strike a blow for the airlines

Planes are late for all sorts of reasons. On Thursday a colleague and I flew on separate delayed BA flights from Heathrow.

Mine, to Palma, left mildly late for reasons which were never explained; hers, to Miami, was delayed by 45 minutes because, passengers were told, an electronic device had to be retrieved from the hold. At a time when passengers flying from six Middle Eastern and North African countries to the UK are instructed to place electronic devices in the hold, this was baffling.

Both of us were well short of the three-hour delay in arrival which could qualify for compensation under EU passenger-rights rules. On the same day, the European Court of Justice (ECJ) was addressing one aspect of these regulations. The judges ruled that if your flight is late due to a “collision between an aircraft and a bird”, you can expect no compensation.

Their decision surprised some experts. Kevin Clarke, who spends his professional life pursuing claims against airlines as head of the Flight Delay Team at solicitors Bott & Co, told me that morning: “There really is no precedent for this and it has taken us very much by surprise today. The judgment itself provides us with absolutely no clues or information.”

All the significant ECJ verdicts on passengers’ rights had previously gone against the airlines, obliging them to pay out for technical delays and occasions when the plane has returned after take-off. The prevailing message from the court to the airlines has been: it might not be your fault, but it is your responsibility.

The airlines will sense that the tide is turning. Random events such as a bird being ingested into a jet engine are already difficult and expensive enough to sort out, thank you, without having to write out hundreds of cheques to travellers. With compensation running as high as €600 (£508) per passenger, an errant gull (the most frequent victim) could in theory cost a carrier £250,000.

Most of the time, though, bird strikes cause harm only to the unfortunate creature that finds itself in an unequal contest for airspace.

I have worked through the flock of bird-strike statistics from the Civil Aviation Authority (CAA) so you don’t have to. The highlights: confirmed bird-strike reports are filed twice daily on average by UK airlines, but only about one in 12 involves damage to the plane. Only one flight in 50,000 is directly affected by a bird strike, though of course there are knock-on delays when a plane is damaged.

The propensity for a bird to cause damage depends, understandably, on its size. Second only to gulls in the frequency of collisions is the swallow. Over five years, the CAA recorded 715 of the delicate Hirundo rustica meeting a premature demise after contact with an Airbus or Boeing— but only three caused any damage.

One swallow doesn’t usually make a summer holiday delay. And while no planes were harmed in encounters with meadow pipits over the same timespan, 164 of these poor creatures were lost to the world.

The vast majority of bird strikes happen while the aircraft is at a low level, typically shortly after take-off or before landing – as was the case with the potentially catastrophic bird strike on US Airways flight 1549 in 2009. The Airbus encountered a flock of Canadian geese while climbing from La Guardia airport in New York, causing “an almost complete loss of thrust in both engines” according to investigators.

Captain “Sully” Sullenberger successfully ditched the stricken aircraft in the Hudson River, in what became known as “the miracle on the Hudson”.

It was no miracle: the lives of everyone on board were saved by calm professionalism.

Twenty-first century air travellers enjoy unparalleled levels of safety and unprecedented value – in my view, more than enough compensation for the occasional delay, whatever the cause.