Gahan v Emirates [2017] EWCA Civ 1530; Buckley v Emirates [2017] EWCA Civ 1530
Court of Appeal, England and Wales
Facts
Miss Gahan
[8] The appellant in the first appeal, Miss Thea Gahan, made a single booking with Emirates to travel from Manchester to Bangkok via Dubai. Her flight from Manchester to Dubai (flight 1) (a distance of some 5,652.02 km) was delayed so that it arrived in Dubai 3 hours 56 minutes late. She missed her connecting flight (flight 2) and arrived in Bangkok 13 hours 37 minutes after her originally scheduled arrival time.
[9] Miss Thea Gahan sought compensation under Regulation 261, Article 7 for the delay. District Judge (DJ) Benson dismissed her claim. Emirates accepted that flight 1 fell within Regulation 261 but contended that was the only flight within the scope of Regulation 261. The judge took the view that flight 2 had to be viewed separately from flight 1. He followed the decision of Proudman J in Sanghvi v Cathay Pacific Airways [2012] 1 Lloyd’s Rep 46. Emirates offered to pay €300 by reference to the delay on flight 1. DJ Benson agreed that no further compensation was payable. Ms Gahan appeals from that order.
Mr Darren Buckley, Mrs Karen Buckley and Mr Jordan Buckley
[10] Mr Darren Buckley, Mrs Karen Buckley and Mr Jordan Buckley (together the Buckleys) made a single booking with Emirates to travel from Manchester to Sydney via Dubai. The first flight (flight 1) to Dubai was delayed 2 hours 4 minutes with the result that the Buckleys arrived in Dubai only 46 minutes before their connecting flight. They were automatically rebooked on to a flight the following day (flight 2). After a further delay of 16 hours 39 minutes, they arrived in Sydney.
[11] The Buckleys brought proceedings for compensation under Regulation 261, Article 7. Emirates again contended that only flight 1 was within the scope of Regulation 261 and that, since that flight was delayed less than three hours, no compensation was payable. DJ Baldwin disagreed and awarded the Buckleys compensation of £505.31 each, being the sterling equivalent of the compensation provided for by Article 7 on the basis of flights 1 and 2. DJ Baldwin noted that Regulation 261 referred to “flights” rather than “journeys”. On the other hand, it also referred to “final destination” (Article 7(2)). He carefully analysed a number of decisions of the CJEU, and he rejected Emirates’ argument that flight 2 should be disregarded because it started and ended outside the EU and because to take it into account would give Regulation 261 extra-territorial jurisdiction. He accepted the argument for the Buckleys that the delay on flight 2 was merely the consequence of the delay on flight 1, which departed from an airport within the EU, which brought it within the scope of Regulation 261. That Regulation was aimed at protecting passengers and so should be interpreted to give effect to that purpose. Emirates appeals from the order of DJ Baldwin.
Issue(s)
At [5]:
The principal issues are (a) whether the right to compensation against a non-Community carrier is available at all if the flight is to a destination outside the EU, and (b) whether the right to compensation can take account of delay on a connecting flight starting or ending outside the EU. The Liverpool County Court, from which both appeals come, reached conflicting views on these questions.
Discussion
At [73] to [75]:
[73] The CJEU has held that the liability for compensation for delay depends on the delay in arriving at “the final destination”. Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours’ or more delay. This is established by Sturgeon and Folkerts (see paragraphs 44 and 45). While the Interpretative Guidelines are not an admissible aid to interpretation, they are consistent with my reading of the judgments of the CJEU. Moreover, that interpretation is also consistent with the conclusion of the Cour de Cassation in X v Emirates (paragraph 58 above). In the case of directly connecting flights, travelled without any break between them, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight.
[74] This conclusion is not undermined by Schenkel, which was concerned with the question whether a booking of an outward and return flight meant that both those flights had to be taken together. Schenkel does not decide that flight 2 is irrelevant and is distinguishable for the reasons given by Mr MacDonald (paragraph 62 above).
[75] Sanghvi (see paragraph 34 above) could not in any event have given rise to compensation for delay if the flights from London to Sydney were treated together, following Folkerts, as the total delay in that case was less than three hours. The reasoning in the decision, being a decision of the High Court, is not binding on us. Mr Pomfret accepts that there was also no denied boarding claim in that case because the claim arose outside EU airspace.
At [76] to [80]:
[76] Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU. Regulation 261 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction. It does not help Emirates to argue that the delay on flight 2 has to be caused by a delay on flight 1 within EU jurisdiction: that does not of itself show that the territoriality principle has been contravened. It follows that I would reject IATA’s submission that Regulation 261 cannot apply where the destination on flight 1 is outside the EU.
[77] The basis of jurisdiction asserted over non-Community carriers is territorial. I agree with Mr Pomfret that there is no need for EU law to rely on the effects of delay. It is sufficient if flight 1 begins in the EU, as Article 3(1)(b) requires. There are two reasons why this is in my judgment so.
[78] First, this is a case where the measure uses an activity outside the jurisdiction not to claim jurisdiction but to quantify a sanction imposed within the jurisdiction. Reference has been made to the decision of the CJEU in ETS on the EU emissions trading scheme. In brief, what happened in that case was that the EU Aviation Emissions Directive 2008/101/EC required an operator using an EU airport to surrender emissions allowances calculated on the basis of the whole of the flight. AG Kokott and the CJEU rejected the argument that that involved a breach of the extraterritoriality principle essentially for the reasons given at paragraphs 68 and 69 above (though the EU subsequently took what was known as the “stop the clock decision” to suspend the scheme temporarily following international protests). The Aviation Emissions Directive applied to an operator because it chose to land or depart from an EU airport. So too in the present case, Regulation 261 applies to a non-Community carrier because they use EU airports. It is rational for the EU legislature to measure delay by reference to the final destination where there are two or more flights which are directly connecting as that is likely to be the best measure of the inconvenience to the passenger.
[79] Second, contrary to the submission of Mr Marland, the conclusion is supported by the decision of the House of Lords in Holmes. As the CAA point out, “category (2) cases” as defined by Lord Bridge were held not to offend against the extraterritoriality principle, and they are more closely analogous to Regulation 261 since they concerned “carriage involving a place of departure or destination or an agreed stopping place in a foreign state and a place of departure or destination or an agreed stopping place in the United Kingdom or other British territory.”
[80] Inevitably there will be cases where the remedies conferred by Regulation 261 produce some odd results. For example, it is possible that there is no compensation for delay on a flight which starts outside the EU and has several “legs”, some of which take place in the EU. Thus if in Folkerts the passenger’s flights to Asúncion had been Moscow, Bremen, Paris, Sao Paulo and Asúncion, it is possible that Regulation 261 would not have applied if for the purposes of Regulation the relevant flight is treated as starting in Moscow and the carrier was a non-Community carrier. On the other hand, it is also possible to find striking examples of coherence in the system of remedies if Mr Pomfret is right. For example, rights on cancellation operate by reference to the final destination, so that they include compensation for any connecting flight that is cancelled and not re-routed so as to arrive within three hours of the original scheduled time of arrival at the final destination.
Useful for
Irrelevant under EU261 that delay caused in third or non-EU country
