Compensation Clinic: Claiming EU Compensation After Airline Denies Responsibility – Case Avianca Misconnected Flight

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This week’s Compensation Clinic comes from a long dispute with Avianca regarding a misconnection I experienced last year, and claiming compensation -per EC261/2004 rules- after the airline initially declined any responsibility.

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To summarize my case: I booked BCN-BOG-CTG on Avianca for a work trip I had in October 2018. The outbound flight was scheduled to depart at 16:50H but departed with a delay of 1h52min due to a (very) late arrival of the incoming plane. This delay made me misconnect in BOG, where I was forced to overnight as I missed the last possible scheduled connecting flight. Avianca ground staff in Bogota provided me with hotel accommodation for the night including dinner/breakfast vouchers and rebooked me on a flight departing at 6:00H the following day.

Overall, I arrived at my final destination 7 hours and 40 minutes later than the original schedule, and as being an itinerary departing from an European airport, EU protection rules (EC261/2004) fully apply to this case. My first claim was directed to Avianca through a contact form on their website. This was the text of my claim:

Dear Sir/Madam,

I am writing to you regarding flights AV19 connecting to flight AV8850 on October XX, 2018. My booking reference for this flight was XXXXXX eTicket #134XXXXXXXXXX.

This flight was scheduled to depart from Barcelona to Bogota on XX/10/2018 at 16:50, connecting to Cartagena at 22:13 and arriving at 23:45 . However, the flight was delayed and did not arrive at Bogota until 21:58 (original scheduled arrival time was 21:00), making me miss my connection to Cartagena. I was rebooked on flight AV9756 departing from Bogota on XX/10/2018 at 06:17 and arriving at 07:25  meaning I arrived to my final destination 7 hours and 40 minutes late.

The judgment of the Court of Justice of the European Union in Tui & others v CAA confirmed the applicability of compensation for delay as set out in the Sturgeon case. More recently, on May 2018 the Court of Justice of the European Union ruled on Claudia Wegener v Royal Air Maroc SA (Case C-537/17) that the right to compensation for long delays of flights applies to connecting flights to third States with stopovers outside the EU, and that a change of aircraft during the stopover does not alter the fact that two or more flights booked as a single unit must be considered a single connecting flight   As such, I am seeking compensation under EC Regulation 261/2004 for this delayed flight.

I am seeking compensation of €600, due to the fact that the scheduled length of my flight was over 3500 km and the delay on the arrival to final destination was longer than 4 hours.

I look forward to hearing from you and would welcome a response within 7 days.

In under two weeks from submitting my claim, I got a response from Avianca denying my claim because, according to them, the delay was due to a technical inspection due to a foreign object damage (a “valid” reason to deny compensation in case of delays). Here is Avianca’s response:

Avianca would like to inform you that your request under case number: 181XXXXXXXXXX has been handled. Please find below your case details:
Date of resolution: 2/11/2018 2:22 p.m. 
Resolution: In our customer service department, we have received your request about compensation for the delay on your flight AV19 Barcelona – Bogota last October XX, 2018.

Initially, we want to inform you that for Avianca, it is very important that our passengers and flights arrive at their destination at the estimated time, however, the flights are subject to change, which can be derived as a consequence of an internal or external cause to the company, showing up before, during or unexpectedly at the last minute. We would like to explain that although it is not common, there are some scenarios where the itineraries might present operational irregularities that might prevent us to confirm our client’s boarding. Such scenarios are related to multiple factors, such as flight cancellations, accommodations, the aircraft’s weight and balance, external reasons, etc.
On this occasion, the AV19 was affected because the aircraft needed a last minute inspection due to a foreign object damage (FOD) impacted it. Our mission as an airline is to take you to your destination in optimal conditions, which is why we may be forced to reprogram these itineraries looking for the welfare of the operation and all of our travelers as is stipulated in our contract of carriage signed by both parties https://www.avianca.com/co/en/contract-of-carriage.

Additionally, with respect to your request for the UE regulation compensation, in this case does not apply, as the affectation is considered external cause from the airline. Our staff performed the relocation for your connecting flight from Bogota – Cartagena, according to the availability shown at that moment. We consider pertinent to mention that everything was handled within the parameters of the Aeronautic guidelines.

We apologize for the inconveniences and discomfort caused. We guarantee that every day we work to minimize as much as possible the effects on our travelers due to these events. We hope that this situation, will not be an impediment to continue assisting you in your future travel plans, and allow us to change the perception that is taken from our service.

Avianca intentionally chooses not to mention that the incoming plane arrived at Barcelona 1 hour late and discharges all responsibility on a FOD incident rather than in their own operational mess.

Knowing that they had a slim (at best) case that probably didn’t hold further scrutiny, I decided to escalate my claim and appeal to the Spanish Civil Aviation Agency (AESA). I presented my claim last May:

Download (PDF, 184KB)

Last week I got AESA’s ruling on my case. Avianca did not produce any evidence supporting their claim the delay was due to a FOD event, hence AESA ruling on my favor and requesting the airline to pay me compensation according to EC261/2004 passenger protection rules, in this case 600€ due to the total distance and length of the delay. Here’s AESA’s ruling:

Download (PDF, 196KB)

Conclusion

Airlines lie! When it comes to compensation, they are sneaky, and they will try to discourage you to pursue your rightful claims. In this case, escalating the claim to the corresponding civil aviation agency did the trick, as Avianca could not provide evidence of their claim that delay was due to a FOD and not because of a late incoming flight. Let’s see how long does it take to pay me off!

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