Some Birds Fly High: The Disappearance of Force Majeure Doctrine in European Aviation Tort Law

34 Pages Posted: 16 Feb 2017

See all articles by Ciarán Burke

Ciarán Burke

University of Jena - Friedrich Schiller Universität

Alexandra Molitorisova

University of Bayreuth, Faculty of Life Sciences; Masaryk University - Faculty of Law

Date Written: February 14, 2017


Force majeure doctrine, a common defence in strict liability cases and a general principle of EU law, is traditionally characterised by three elements: externality, unpredictability and uncontrollability. This article observes that the enormous amounts of data now being collected and stored within businesses, organisations and governments as well as particular characteristics of modern industries as objects of regulation pose challenges to each of the components within the defence. A recent interpretation of the concept of ‘extraordinary circumstances’, as suggested by AG Yves Bot, according to which a collision between a plane and a bird that causes a delay of more than three hours does not exonerate the air carrier from its compensation obligations under Regulation (EC) No 261/2004, provides a good example pointing in this direction. This article closely inspects AG Bot’s opinion delivered on July 28 2016 in case Pešková and Peška (C-315/15). In a comprehensive re-examination of the concept of ‘extraordinary circumstances’, the article critically evaluates the cumulative application of the two parts of the Wallentin-Hermann test as performed by the CJEU and AG Bot, and analyses it against the three components of the force majeure doctrine. Although the findings of the article are limited to a particular legal background of a lex specialis of a lex specialis (tort law – transport law – air law), the general observations made on the basis of this analysis draw a number of conclusions concerning the use of statistical analysis in combination with casual observations. In this respect, it is observed that different legal interpretations are prompted by different formats of presenting probabilities, overweighting rare events or neglecting base rates, and that caution should be exercised. It can thus be seen as questionable to found a legal interpretation upon the use of available statistical data in a manner that reinforces the coherence of the view of a non-expert casual observer. The article defends the role of force majeure as an equitable solution to risk allocation in non-contractual liabilities, which allows for rapprochement of the sphere of risk to the sphere of control of a tortfeasor, although it does not close the gap between the two completely. The complex risk mitigation systems based on risk assessment, ergo predictability, and the creeping frontier of human control over natural, external, forces show that the interpretative interdependence and cumulative application of the controllability and predictability criteria, within force majeure as well as the extraordinary circumstances defence, have become especially problematic. A question remains as to how to formulate liability rules on equitable grounds concerning damage resulting of random (individually unpredictable) events and how to approach the assessment of control exercised over such random events. The article suggests that the element of externality, the concept of absolute liability, or a very high standard of unpredictability could provide guidance towards a solution to this unresolved but pressing problem.

Keywords: Tort law, Aviation law, Force Majeure, Extraordinary Circumstances, Strict Liability, Defences

JEL Classification: K13, K39

Suggested Citation

Burke, Ciarán and Molitorisová, Alexandra, Some Birds Fly High: The Disappearance of Force Majeure Doctrine in European Aviation Tort Law (February 14, 2017). Available at SSRN: or

Ciarán Burke

University of Jena - Friedrich Schiller Universität ( email )

Furstengraben 1
Jena, Thuringa 07743

Alexandra Molitorisová (Contact Author)

University of Bayreuth, Faculty of Life Sciences ( email )

Masaryk University - Faculty of Law ( email )

Veveri 70
Brno, 61180
Czech Republic

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