February 15th, 2021
A decision of the pilot to divert due to adverse weather conditions at the destination airport cannot be overruled by court ex post.
In general adverse weather conditions are accepted as extraordinary circumstances under Art. 5 (3) of Reg. (EC) 261/2004. In order to defend weather cases successfully it is required to prove the actual weather situation as well as the fact that a safe landing or departure was not possible under these given conditions. Some courts request detailed explanations on visibility, wind and all other relevant metrological factors and the consequences for the operation of the flight, and, in addition, an expert opinion to prove all of these explanations. In situations, however, where the aircraft is on approach and the pilot decides to go around or divert, the courts also insist on testimony of the pilot to explain in detail the immediate decisions taken. Now, the Local Court in Dortmund has accepted the mere reference to the pilot command decision under Art. 3 (1) German Air Traffic Regulation to release the airline from liability under Art. 5 (3) Reg. (EC) 261/2004. Hence, the question whether the actual weather conditions from an objective perspective prevented safe operations were not reviewed by the court. The court held that the pilot has a scope of discretion how to react. Courts may only verify this reaction to a limited extent ex post. It therefore suffices to present a METAR that is eligible to prove the adverse weather situation and then refer to the pilots command decision.The fact that the pilot decided to divert and the additional comments on the actual weather situation convinced the court to accept the airline’s defense and dismissed the passenger’s compensation claim.
AG Dortmund 01.09.2020 file ref: 425 C 1320/20