For the air carrier’s liability for delays or cancellations, exceptional circumstances, which exclude such burden, are events which, by their nature or origin, are not inherent in the normal operation of the air transport business. By formal summons of March 15 2021 Fr.Al. appealed against the judgment of the Court of Bergamo n. 781/2020, published on September 29 2020, with which it was rejected his request to obtain compensation pursuant to art. 6 and 7 Reg. EC No. 261/2004 due to the delay of the flight Ry. (…) Alghero – Bergamo.
Appearing in Court Ry. Dac (already Ry. Limited), has asked for the dismissal of the appeal and the confirmation of the appealed sentence that has correctly considered working art. 5, paragraph 3, of Regulation 261/2004 because of the exceptional and unforeseeable nature of the so called “bird strike”, that is, the impact with birds recorded by the aircraft in the flight prior to the one that has been delayed. In application of the higher principle of law, it must be concluded that the collision between an aircraft and a bird must be classified as an “exceptional circumstance” within the meaning of Article 5.3 of Regulation No 261/2004.; and, in fact, the collision between an aircraft and a bird and any damage caused by that, are not intrinsically linked to the operating system of the apparatus, and, therefore, are not inherent in the normal operation of the air carrier by reason of their nature or origin, escaping its effective control. On the other hand, as stated by the Court of Justice in its judgment, it is completely irrelevant that the “bird strike”, basically, caused damages to the aircraft in question.
Finally, it should be noted that the exception provided for by art. 5, paragraph 3, of Regulation No. 261/2004 operates in the presence of “exceptional circumstances” that could not have been avoided even if all the necessary measures had been taken; as mentioned above, the interpretation given by the Court of Justice with regard to the adoption of all the measures in the case is based on the so called principle of proportionality, so that intolerable discomforts cannot be imposed on the air carrier in the light of the abilities of its undertaking.
In the light of the foregoing considerations, the Court fully agreed on the conclusion reached by the Peace Officer of Bergamo, having been correctly considered that the “bird strike” occurred to the aircraft during the flight prior to the one in which the delay occurred, integrates an exceptional circumstance that pursuant to art. 5, third paragraph, EC Regulation No. 261/2004 exempts the air carrier from recognizing the compensation.