Any experience with European Union (EC) Regulation 261/2004 claims?

[Jakob]

I was booked at a flight with Delta Airlines departing from Stockholm Arlanda to New York JFK airport. Two hours after boarding the flight was canceled. I was re-booked on a flight leaving two days later. In my opinion, I am entitled to a €600 cash compensation for the cancellation according to European Union (EC) Regulation 261/2004 regarding flight cancellations. Delta however, regards the mechanical failure of the flight to be caused by unforeseeable events, hence, the regulation does not apply to this scenario. However, there is a precedent set by the European Union court of the fourth chamber (C-549/07) where they conclude that a mechanical failure does not constitute an unforeseeable event, unless "...that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control."

I spoke with Delta airlines about this matter but they were not forthcoming to my claim. I then sent my claim to The National Board for Consumer Complaints in Sweden (ARN), where the event took place (http://www.arn.se/Other-languages/English/). I received their ruling yesterday that said that they shared my view and that Delta should immediately pay me the sum of €600. Unfortunately for me, ARN, can not force a company to comply with their ruling, only urge them to following their ruling. What's more is that Delta Airlines never bothered to respond to their inquiries, even after a reminder being sent. What can I do to make Delta respect EU regulations and honor my claim? Does anyone have experience taking Delta to a small claims court in the US using European Union (EC) Regulation 261/2004?

Any advice is greatly appreciated.

[jimworcs]

This rule is only enforceable against EU based airlines. You can try and take them to small claims court, using the findings to support your claim. Seems that the only solution otherwise is never fly US based airlines from Europe if you want your rights enforced. You can also contact EU Claim on www.euclaim.co.uk. They are based in the Netherlands, but will pursue a claim from any EU. Country. They will charge a success fee, but as you have exhausted your statutory options, what do you have to lose?

[Jakob]

Thanks for the tip. I'll proceed with submitting my case to EUclaim and see what happens. I'll post any development in this thread.

[jameskgriffin]

EU Regulation 261 2004 applies to all airlines' flights departing from EU countries, plus all EU based airlines' flights. Consequently a Delta flight from Stockholm is subject to the regulation.

I had a similar experience with Delta from Milan to NYC, went through all their denials, refusals, and excuses, but I eventually collected €1200 for me and my travelling companion. I dealt with the Italian National Enforcement Board, ENAC (Ente Nazionale Aviazione Civile) which, like the Consumer Board to which you refer, cannot force an airline to pay the passenger, but can fine the airline (and a whole lot more than the 261 2004 compensartion if they wish). I was ready to go Small Claims Court, handled in Italy by the justices of peace (Giudice di pace), but Delta paid before I had to. I visited the EUClaims website, but figured I could do whatever they could, and didn't want to split any award with them.

At the end, you collect pennies per hour, but I enjoyed the challenge, and learned alot about transportation law (and airlines' behaviour in the process).

Good luck, and be persistent if you go down this route!

J K Griffin

[Jakob]

Thanks for the information Mr. Griffin. I already went ahead and submitted my claim through EUclaim, but I'll post updates with the case as they arrive in this thread. I completely agree with you, Delta's resilience to make their own interpretations of law fuels my interest far more than any cash compensation at this point. Thanks also for the words of encouragement.

Sincerely,

Jakob T

[Jakob]

I heard back from EUclaim and since this event took place almost one year ago to the date, they could not proceed to take on my case.

As I see it, two options remain. I can either go to small claims court or file a lawsuit in Sweden.

There are two things I fear from going to small claims court here in the US. That the judge will tell me that I waited too long or that I should address the matter where it took place, in Sweden.

Filing a lawsuit in Sweden seems slightly more cumbersome simply because I don't live there, however, language is no barrier because I'm originally from there.

Any advice or ideas are greatly appreciated.

[jimworcs]

Check and see if you can file a smalls claim in Swden online. You can do this in the UK, so it may e possible there. I doubt a claim in the US would succeed..it is the wrong forum as the flight originated in the EU

[jimworcs]

Here s a link that might get you started, but can't find info on online filing...

http://ec.europa.eu/civiljustice/sim...e_en_claim.htm

[jameskgriffin]

Perhaps because I was successful with the NEB in Italy, I recommend that you use the same approach. Also, given that so much time has already passed, it could be that involving another entity could lead to the "you're too late" response. You've already notified the consumer protection guys in Sweden and so you're not too late with them.

Nobody likes to be ignored, and from what you've written, Delta ignored their finding, and has not even acknowledged what they've found. I'd go back to the board in Sweden and state what's happened and ask what they recommend you do now. (If you can do it in Swedish, that's even better. I communicated with the Italian guys in Italian - not perfect, but understandable - and got the result I wanted.)

Try to get the individual's name who is handling your case, and, if you can, contact him/her by phone - Skype if you are a subscriber; this saves money!

The national enforcement boards deal with the local Delta people, the ones who know exactly why your flight was cancelled. These guys are more reasonable, flexible, and less bound by "corporate policy" than the Atlanta people.

The Stockholm Delta people and the consumer board people may already know each other, and they would prefer to have a friendly relationship, and not an adversarial one.

Above all (and from what you've written, it seems you know this), keep to the facts, explain to Delta how you plan to proceed, and no threats!

I think that if you persist, you will get what you are entitled to.

Again, good luck!

[HoustonFlyer]

You can bring your small claims case in New York. The governing law is the Montreal Convention of which almost all countries including the United States and the EU are signatories. The EU regulations are a convenient means of seeking redress for those passengers who can bring themselves within those regulations, but the Montreal Convention is supreme law for international carriage by air.

Article 33 which I have quoted below allows you to opt for the juirisdiction in which you will bring your claim.

One of the options is the destination, and for a journey from Stockholm to New York, the destination New York is one of the options. Another is the place where the contract was made, that is where you were physically when you made the purchase of the ticket, another is the place where Delta has it's principal place of business, which would be Atlanta. You will note that for a claim under the Montreal Convention, the place of departure (Sweden) is not one of the jurisdictions for this claim, unless it was that it was a return ticket and you were returning New York to Stockholm, which would make Sweden the destination.

Small claims cases are easy to file for a small fee and be sure to mention in your papers that the Consumer Complaints Board in Sweden ruled in your favour. The New York court will not be bound by that ruling but they will surely be persuaded by it. The New York small claims courts take a no-nonsense kind of approach with defaulting airlines, so they are your best bet.

Article 33. Jurisdiction

1. An action for damages must be brought, at the option of the plaintiff, in the territory
of one of the States Parties, either before the court of the domicile of the carrier or of its
principal place of business, or where it has a place of business through which the contract

has been made or before the court at the place of destination.

[HoustonFlyer]

The other thing is you did not wait too long. You have two years to bring a claim under the Montreal Convention. Article 35 is quoted below

Article 35. Limitation of Actions
1. The right to damages shall be extinguished if an action is not brought within a period
of two years, reckoned from the date of arrival at the destination, or from the date on which

the aircraft ought to have arrived, or from the date on which the carriage stopped.

[jameskgriffin]

EU Regulation 261 2004 is not subordinate to the Montreal Convention and, in fact, there are articles in it that have been cited by IATA amd ELFAA as inconsistent with the Montreal Convention. There is a comprehensive article on this in "Shipping and Transport Lawyer", late in 2005 or early 2006. I quote one paragraph (of about 20) from the article.

"On 10 January 2006 the European Court of Justice delivered its judgment on the challenge brought by IATA and ELFAA to EC Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding, cancellation and long delay of flights, rejecting the challenge on all grounds."

A part of the judgment follows, verbatim:

‘Any delay in the carriage of passengers by air, and in particular a long delay, may, generally speaking, cause two types of damage. First, excessive delay will cause damage that is almost identical for every passenger, redress for which may take the form of standardised and immediate assistance or care for everybody concerned, through the provision, for example, of refreshments, meals and accommodation and of the opportunity to make telephone calls. Second, passengers are liable to suffer individual damage, inherent in the reason for travelling, redress for which requires a case-by-case assessment of the extent of the damage caused and can consequently only be the subject of compensation granted subsequently on an individual basis.

It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay.

It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors of the Convention intended to shield those carriers from any other form of intervention, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.

Since the assistance and taking care of passengers envisaged by Article 6 of Regulation No. 261/2004 in the event of a long delay to a flight constitute such standardised and immediate compensatory measures, they are not among those whose institution is regulated by the Convention. The system prescribed in Article 6 simply operates at an earlier stage than the system which results from the Montreal Convention.’

If you have the time and interest in transportation law (as I became to have during my successful attempt to be compensated), you might want to read the entire article.

EU Regulation 261 2004 allows you to file your complaint in several locations: airline's principal place of business (Atlanta), place of planned flight departure or arrival (Stockholm or New York), or your place of residence (the USA, I presume).

Moreover, there is no requirement that you must choose one approach and not another, i.e., you can try Small Claims in NY and enforcement board in Sweden concurrently. Or Small Claims both in NY and Sweden...

I would suggest that you don't get involved with the Montreal Convention, because its parameters are different from those of the EU regulation: individualized fines vs. standardaized compensation, physical damage, for example to baggage, vs. inconvenience to passengers, variable awards vs. fixed amount compensation, etc.

Keep us posted on developments!

[HoustonFlyer]

Sorry, --------------------

[Jakob]

Thank you for all this valuable information.

Mr. Griffin, when you filed your claim against Delta via Italy's enforcement body, where did you send your claim to? Was it to Delta's corporate headquarters in Atlanta, GA, or to the customer care center in France?

Thank you again

[jameskgriffin]

I filed the claim on-line at www.delta.com/exitEU. When I visit this site it appears in Italian. I think from your computer's URL they know where you are located and select your language, and so you'll probably see it in English (or Swedish).

If you are mailing the claim (I advise against this), or sending them a followup letter (which you'll probably have to do), their US address is

Delta Airlines, Inc.
P.O. Box 20980
Atlanta, GA 30320-9908

Attention: Exit EU

Let me know if I can help in any other way.

J K Griffin

[Jakob]

Ok, I'm sorry for using the wrong nomenclature. What I meant to ask was what the mailing address is for the lawsuit/small claim. I'll go ahead and use the Atlanta, GA address.

I did already send a claim form about a year ago via that website that you mentioned. After which my claim was denied multiple times via email.

Thanks,

Jakob T

[jameskgriffin]

Actually, I visited, in person, the Giudice di Pace (Justice of the Peace) in Italy. Given that your flight was supposed to originate in Stockholm, the GdP here would not be the appropriate one for you; it would have to be one in Sweden. Alternately, one in New York, or, perhaps, and I haven't thought of the implications of this, one in Atlanta.

If I were you, I'd search the web for filing a small claims case on-line, or at least to find the address of the small claims court you'd prefer to use.

There is another alternative: the EU level court, but from what I've read, this can take forever, and there is the risk that they require you try locally first.

Another is the EU ombudsman, but like the consumer groups, I don't think he can force the airline to pay, just "find" for you (or the airline), and then announce his findings.

I would still suggest you go back to your consumer protection guys in Sweden, and ask for their advice on how to proceed. I've always felt that local people, close to the action, are the most likely to know the best route to success.

Your situation has gotten me curious: again, don't give up, and keep us posted on developments, please!

[Jakob]

Sirs

My brother helped me file a law suit in Stockholm, Sweden, directed at the local Delta Department on August 11th. Today (9/13) I have a check in my hand for $953.76 from Delta for the cancelled flight as well as my expenses filing the suit.

Thank you for your invaluable experience ,input and help.

Sincerely,

Jakob T

[jameskgriffin]

Grattis till ditt goda arbete. Jag visste att du skulle bli framgångsrik.

J K Griffin

[jimworcs]

Fantastic....perserverance pays. Now write to the morons who denied your claim from Delta and let hem know you prevailed. Delta are utterly unscrupulous.