Gahan v Emirates

For directly connecting flights, entitlement to compensation for long delay under Regulation (EC) No 261/2004 is assessed by the delay in reaching the passenger’s final destination. The component flights are taken together where they are travelled without a break.

This applies to a non-Community carrier where the first flight departs from an EU airport, even though later flights and the final destination are outside the EU. The territorial connection is the carrier’s use of the EU airport. Delay outside the EU is relevant only to quantify the compensation. National courts are bound by CJEU authority on the compatibility of Article 7 compensation with the Montreal Convention.

The passengers each held a single Emirates booking from Manchester via Dubai to a destination outside the EU. Emirates was a non-Community carrier.

Miss Gahan’s Manchester-to-Dubai flight arrived 3 hours and 56 minutes late. She missed her connection and arrived in Bangkok 13 hours and 37 minutes late. District Judge Benson dismissed her claim, treating the flights separately.

The Buckleys’ first flight was delayed by 2 hours and 4 minutes. They missed their connection and arrived in Sydney 16 hours and 39 minutes late. District Judge Baldwin awarded each passenger Article 7 compensation calculated by reference to the final destination.

The central issues were whether directly connecting flights should be assessed together and whether compensation could be awarded against a non-Community carrier for delay measured at a final destination outside the EU.

1. Miss Gahan’s appeal was allowed and Emirates’ appeal was dismissed. The court unanimously held that the delay relevant to Article 7 compensation is the delay in reaching the passenger’s final destination.

2. Regulation (EC) No 261/2004, as interpreted in Sturgeon and Folkerts, requires directly connecting component flights to be considered together when assessing delay. The final destination is the destination scheduled at the end of the last component flight. Schenkel, which concerned whether outward and return flights were one flight, did not decide that a later connecting flight was irrelevant. Sanghvi was not binding and would in any event have involved a total delay of less than three hours.

3. Article 7 applied although Emirates was a non-Community carrier and the later flight and final destination were outside the EU. The relevant jurisdictional connection was Emirates’ use of an EU airport for flight 1. The Regulation imposed a contingent liability at that point. Taking the subsequent delay into account quantified the sanction; it did not assert jurisdiction over the later flight. That approach was supported by the territorial analysis in ETS and by the analogous category of carriage considered in Holmes.

4. The court was bound by Dawson. CJEU authority on the nature of Article 7 compensation and its compatibility with the Montreal Convention governed the issue under EU law, regardless of whether the carrier was a Community carrier. Article 7 compensation lay outside the Convention’s regime for individual damage caused by delay. The contrary domestic-law argument based on Sidhu therefore could not be applied to determine the meaning of the Regulation. Sidhu remained relevant where the Convention itself fell to be interpreted as domestic law.

• Court of Appeal (Civil Division): In this judgment, [2017] EWCA Civ 1530, allowed Miss Gahan’s appeal and dismissed Emirates’ appeal.
• Liverpool County Court, District Judge Benson: Dismissed Miss Gahan’s compensation claim by treating the two flights separately.
• Liverpool County Court, District Judge Baldwin: Awarded the Buckleys Article 7 compensation calculated by reference to their final destination. That decision was upheld.