Portuguese carrier TAP is not relieved of its obligation to compensate passengers for a flight cancelled after the death of a pilot, European judges have ruled.

The first officer of the Stuttgart-Lisbon service, on 17 July 2019, was found deceased in his hotel room about 2h before the scheduled departure and, in response, the whole crew declared itself unfit to fly.

But this meant the flight had to be cancelled because a replacement crew was unavailable locally, and a new crew had to be flown out from Lisbon. Passengers were re-allocated to a flight which left about 10h after the original planned service.

While German local and regional courts held TAP liable for compensation, a Dutch court had separately held that unexpected crew illness amounted to an event beyond the airline’s control.

TAP Airbus-c-TAP

Source: TAP

Staff absence arising from illness or death, the court ruled, is not an extraordinary circumstance

But the European Court of Justice has ruled that, despite the “tragic” circumstances, the carrier is not exempt from its responsibility to pay compensation.

It says the death of a crew member – like an unexpected illness – is not an extraordinary situation as defined by compensation legislation.

“Measures relating to the staff of the operating air carrier, such as those concerning crew planning and staff working hours, fall within the normal exercise of that carrier’s activities,” the court says, adding that management of unexpected absence is “intrinsically linked” to such planning.

It points out that the death of a crew member, from a legal standpoint, is no different from an individual’s absence owing to sudden illness – the central issue is the absence, not the medical cause.

“Such an absence is inherent in the normal exercise of the operating air carrier’s activity and therefore does not fall within the concept of ‘extraordinary circumstances’,” the court states. “It follows that the air carrier is not exempted from its obligation to compensate passengers.”