Earlier this week I wrote about a case of SWISS denying compensation to a traveler, absurdly blaming an Airbus A330 mechanical issue on a Boeing 737 problem from two decades ago. I figured SWISS would do the right thing and pay out compensation, but thus far it is digging in with an outlandish new claim that a mechanical problem on an aircraft constitutes an “extraordinary circumstance” if it occurs at an outstation.
Another Absurd Claim From SWISS Concerning Compensation: Mechanical Issue = Extraordinary Circumstance
Recall from my earlier story:
- On May 15, 2024 LX23 from New York (JFK) to Geneva (GVA) was canceled
- The aircraft cancellation was blamed on a “technical fault” with the Airbus A330-300 aircraft
- Switzerland is not part of the European Union, but SWISS is regulated by EU261/2004, legislation that mandates cash compensation in case of delays within the airline’s control
- SWISS denied EU261/2024, blaming a Boeing 737 rudder issue
- The passenger followed up, pointing out SWISS does not have any 737s in its fleet
- The note back doubled down on the “737 main rudder servo valve” being an issue for the delay
The passenger escalated the issue and has heard back again from SWISS:
Thank you for your message of 6 June 2024, which has been assigned to me for handling.
I regret to learn of the circumstances you encountered in connection with the cancellation of your flight LX23 from New York to Geneva on 15 May 2024. On behalf of SWISS and its cooperation partners, I reiterate my sincere apologies for any inconveniences you encountered as a result. I gather from your message that you are not satisfied with the handling of your claim and do not agree with the decision taken in declining your request for compensation.
Your case has therefore been reviewed and I would like to inform you that this flight irregularity was caused by an unexpected flight safety shortcoming affecting the rudder servo. For this reason, the scheduled aircraft, which was an Airbus A330-300, had to undergo an immediate technical inspection and to be removed from further operations. I apologise the oversight of the previously wrongly mentioned aircraft type.
Safety is SWISS first priority and despite a costly and careful maintenance of our aircraft technical faults can occur at short notice. We consider the described flight cancellation necessary and the irregularity to be extraordinary circumstances. These could not have been avoided even if all reasonable measures had been taken.
Furthermore, considering the fact that this situation did not develop in our hub in Zurich but abroad where a replacement aircraft was not available in a timely manner, I must deny your claim for compensation in application of regulation EC261/2004.
In case of flight irregularity, SWISS of course contributes to the direct costs incurred by its quests (e.g. for meals, beverages, accommodation if required). From our records I note that you have been offered a refund of the costs incurred to the amount of EUR 62.83. The compensation link sent to you is still valid in order for you to collect the compensation, either in cash or in form of an advantageous voucher.
Since I am aware of the circumstances encountered and the delay suffered, I have attached to this email, as a gesture of goodwill, two SWISS travel vouchers to the amount of USD 200.00, each. The vouchers can be redeemed for future flights on swiss.com
Despite the unfortunate experience on this occasion, we hope you will give us the opportunity to regain your confidence in our airline. It would be our pleasure to welcome you again on board SWISS in the future.
Yours sincerely
Stefanie Bach
Consultant
Core Customer Care
So, to summarize, SWISS is still blaming a “rudder servo” issue and making the concerning and absurd claim that a mechanical issue constitutes an “extraordinary circumstance” (one of the exceptions, under EU261, to avoid compensation). Instead, SWISS offered a $200 travel voucher per passenger.
The passenger has already responded:
Good afternoon Stefanie,
Thank you for reaching out concerning the wholly unprofessional conduct of your customer service agents, who are clearly using Al prompts to generate responses to customer concerns without even error-checking them. This is a new low that has been recognized by the aviation press.
Unfortunately, I must inform you that your response is similarly disappointing and inadequate, and does not
meet the standards of the SWISS brand. It is simply beyond the pale for an airline customer service agent to blatantly refuse legally-required compensation by lying and obfuscating the facts.EU261/2004 is exceptionally clear that aircraft maintenance issues do not qualify as extraordinary circumstances, this is legal precedent and not a matter of debate. Furthermore, the location in which the issue developed also has zero bearing on the applicability of EU261/2004, as SWISS is an EU/Swiss-based airline. The law is exceptionally clear on this matter.
SWISS’s continued assertions to the contrary are demonstrably false. I strongly urge SWISS to reconsider and remit the legally-mandated payment of 1200 Euro, in addition to the incidental expenses incurred. No amount of bouncing emails back and forth will lead to me accepting anything less than the legally-required compensation from SWISS.
This matter is already causing significant harm to SWISS’s reputation, and I will continue to enthusiastically exercise my options to draw attention to this matter, both from the press, and from regulatory authorities, until the proper legally-required compensation is provided. This matter has already been publicized in several high-
readership aviation blogs, as well as Twitter/X, Reddit, and FlyerTalk. Additional publications are writing
about this matter as I type as well.Again, I urge SWISS to follow the law and remit the legally required EU261 payment due to this maintenance issue.
It’s a nice response.
Hopefully, like a crooked insurance company that automatically denies for several rounds before it ever actually looks at the case, SWISS will now do the right thing and pay out the owed compensation.
In any case, we will continue to hold SWISS accountable.
> Read More: SWISS Denies Compensation Claim With Outrageous Lie
There is some confusion about whether “aircraft technical issues” constitute “extraordinary circumstances” under EU261/2004.
The answer is both simple and complex in that it depends. It does not automatically qualify as such, and it does not automatically not qualify as such.
The specific test to be applied is “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. It explicitly states that “the onus is on the party seeking to rely on (the extraordinary circumstances defence) to establish… that they could not on any view have been avoided by measures appropriate to the situation, that is to say by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned”.
Furthermore, notwithstanding the ruling in Wallentin-Hermann v Alitalia (2008) which established the above test for EU domiciled carriers claiming the defence, that judgement is NOT binding as a precedent on Switzerland who retains the right to interpret the regulation independently as per its original text. While I am unaware of any cases that specifically tested Wallentin-Hermann as a precedent in Swiss courts, those courts have explicitly rejected Sturgeon v Condor (2009) as a precedent in similar cases using EC judgements as a basis for claim in Swiss jurisdiction.
The matter is never as straightforward as “tech issues are not covered” unfortunately, and Switzerland in particular is an outlier as well.
@Sean … Everyone was safe . The company’s caution served a greater good than this PAX’s hurt feelings . Lawyers can relax and go home to mommy .
Exactly. And it sounds like this was due to an airworthiness directive from a national/EU/etc body – not because the part just “broke”. The key to that is that they reference taking it out of service for inspections, rather than for repairs.
If it’s due to an airworthiness directive or similar, there is ZERO chance they could’ve taken reasonable steps to prevent it because by definition an airworthiness directive can require an immediate removal from service with zero warning to the airline.
I find it surprising that Matthew seems to think there is no chance in which a mechanical issue is an extraordinary circumstance, because courts have been clear that they can be.
There was no such directive that I could find:
EASA Safety Publications Tool (AD/SD/SIB)
A mechanical issue is not an “extraordinary circumstance” (van der Lans v. KLM, Case C-257/14) unless a widespread manufacturer defect.
The ECJ found that the defective component parts in KLM’s aircraft were not the type of technical problems for which the “extraordinary circumstances” defense applied. The ECJ stated that, while the “premature malfunction of components of an aircraft constitutes an unexpected event…such a breakdown remains intrinsically linked to the very complex operating system of the aircraft” and that it is understood that “no component of an aircraft lasts forever.” Thus, a technical defect, even if it is “unexpected,” is both routine and in the “control” of the airline.
Although this is only persuasive authority in CH, I am confident a Swiss court would come to the same conclusion absent some systemwide directive for this aircraft (which does not seem to exist).
@Matthew – No, that’s not what the court ruled in Van Der Lans. The court took great care (as have all judgements on this issue) to simply cite examples such as manufacturer defect, but not to exclude other extraordinary circumstances.
The extraordinary circumstances defence continues to be used to defend in circumstances where the test outlined in Wallentin-Hermann is applicable, and then too only in the EU jurisdiction (ie. not in Switzerland).
We are really arguing unnecessarily here. I never limited the scope of extraordinary circumstances nor did I call the ruling binding.
Even so, have you seen an A330 directive that would excuse SWISS from canceling this flight at the last moment? I have not been able to find anything.
Don’t stress and hand over the case to one of the numerous companies specialized on suing the airlines for exactly this compensation. I am not associated with any of these companies but try flight right, air hell, etc. While annoying that you have to give them a share (c30%) , it gets it sorted if they don’t pay.
PAX was right in pressing the issue when the company absurdly blamed the fault on a 737 . However , now the PAX is left with merely the satisfaction of exposure in the media. The matter ought now be forgotten . Life continues .
Entirely incorrect. The pax can and should challenge this in court. Every airline does that – they come up with bogus excuses to not pay until someone actually fights back.
My response would have been shorter, more legal points.
What a specious Swiss reply. With that logic, they could claim that the vast majority of flights are not severely late so any late or cancelled flight is truly unusual and extraordinary. Ha!
The Supreme Court should start allowing execution by wild dog pack attack so that it is no longer unusual and, thus, allowed?!
@derek … Company’s final response was correct . Better safe than sorry . The wild dog pack attack example are better analogies for the pile-on of victimless accusations against Trump , or the recent crimes of Hamas against the Israel young people at a festival .
@Alert: it’s a non-sequitur to conflate safety (a baseline assumption of any airline) with whether the issue was within the control of SWISS. Notwithstanding the points that SeanM has brought up, a mechanical issue cannot be seen as extraordinary given how many there are and how this is part and parcel of running an airline. The SWISS defense fails.
Thank you for your thoughtful reply . I , as a mere lay observer , can merely point out my happy satisfaction that the Captain Pilot Decides what is safe , and whether to fly . ( Not the inconvenienced pax , not the bean counters , and not the staff lawyers .) Cheers .
Typical Lufthansa Group reply.
Lufthansa blamed a cancellation from Beirut on United as the operating carrier
I must disagree. Stefanie’s answer does meet the standards of Swiss customer service.
In fact, there are more Powerball millionaires than Swiss customers that actually received a compensation. There are even more convicted US Presidents than compensated Swiss customers.
LOL.
SWISS recently denied my claim for compensation as well after canceling my flight from ZRH to SFO and I got this absolutely hilarious reason in my official email correspondence with them, which at least makes the whole thing a good story:
“The aircraft scheduled for rotation suddenly had an odor of dirty socks, which is why the aircraft had to undergo an immediate inspection. In view of the fact that our replacement aircraft were already in use elsewhere and therefore no replacement aircraft could be made available promptly.
Therefore. I have to reject your claim for compensation in accordance with EU Regulation 261/2004. Although I realise the inconvenience you had, I count on your understanding that I am unable to give you a different answer.”
(Luckily, the relevant authority (BAZL) sided with me and got SWISS to pay the 600 EUR.)
Lolz
Oil fumes are often described as smelling like “dirty socks,” or as being musty, moldy, or foul
Dirty sock smell is the description that is in my Flight Operations Manual.
Sean M.’s comments are right on the money.
Assuming the pax only travelled from the US to Switzerland (and not an EU destination), then EU261 only applies as interpreted by Swiss courts. Any findings by EU courts regarding mechanicals as not counting as extraordinary circumstances in the context of EU261 are irrelevant, since they are not binding on LX on an itinerary not touching the EU. As long as no Swiss court decides that mechanical issues are never an extraordinary circumstance, SWISS will continue to argue this way where it can to avoid paying. This is a strategic business decision taken after evaluating financial vs. reputational impacts. Customers are not required to approve of it.
If you are right, I hope the passenger will take this to Swiss court.
I too had issue with Swiss about a year ago where I had a missed connection on a route via ZRH where my first flight was delayed. While Swiss happiliy rebooked me same day with Air France via CDG from ZRH to my final destination (though my checked luggage too 4 days to arrive), they too denied my EU261 claim aa they said my initial aircraft was delayed due to their handling agents in ZRH being slow to dispatch the outbound flight and claimed this was an “extrodinary circumstance”. I did not accept that was the case and rather than wramgle with them I just instructed a lawyer to deal with the matter. Swiss ignored my lawyers initial correspondence so my lawyers issued a notice to issue Court proceedings, which Swiss then acknowledged within days and they conceeded and paid the correct EU261 compensation.
I would say that to refuse with a creative reason seems to be the Swiss way of doing things however when threatened with Court action they cave pretty quick when they are clearly in the wrong.
Arguing about customer service standards and reputational damage isn’t going to get you anywhere.
The case should simply be escalated to SÖP, the alternative dispute resolution service (aka ombudsman) that Swiss are signed up to. They will make a decision that is binding on Swiss but which the passenger can choose to reject (if they’re unhappy with it). No cost, no need to go to court or get a lawyer.
The huge problem with EU261 (not just when dealing with Swiss) is that there are no penalties for non-compliance. Airlines routinely deny claims knowing fully well that they are at fault — they play the numbers game, making the claim process so exhausting that only a minority of customers take it to the end.
I have had to claim against Lufthansa, Eurowings and KLM: all took many months of back-and-forth emails with threats of legal action before the airline conceded and paid out. KLM blatantly used every time extension period possible under the ADR process, down to the very last hour, and the whole thing eventually took more than 3 months – for a straightforward airline cancellation!
Just like when you get a traffic ticket, if you pay it immediately it’s cheap, if you appeal and lose it costs more — so there should be hefty penalties for airlines who abuse the ADR process to hide from compensation. Regulators need to step in here.
By the way, speaking of accountability and the contempt that LX shows its customers, whatever happened to your debacle with the F award on Aeroplan? We would love an update on that situation, I am hoping that LX were made to eat humble pie by the DOT, as they are arrogant beyond belief and I fly AF whenever I can, even if I am based in GVA.