The Heathrow Power Outage

The recent closure of Heathrow Airport due to a power outage earlier this year was a timely reminder to the industry about what the closure of one airport can have for any aircraft trying to reach its destination.

All airports have diversion policies in place when an incident occurs. When a fire occurred at an electricity substation near the airport – Heathrow Airport would have implemented its aircraft diversion procedures as soon as the extent of the fire and its impact became apparent. Plan 39 as it is known, would have been invoked by the National Air Traffic (NATS) Terminal Control – as soon as an unexpected event occurred – which could lead to multiple diversions. Plan 39 outlines the number, type and Airlines which each airport has agreed to pre-authorise and accept and which might be diverted without any further consultation. Any additional diversions are then coordinated between the AODM and ATC.

The Impact on Airlines and Passengers

There were 120 flights in the air when Heathrow put Plan 39 into operation. Some of the flights were able to turn around and were returned to their point of origin. Some of the diverted aircraft were able to land in nearby Gatwick and slightly further afield in Cardiff. Other aircraft were a little unluckier and ended up in Shannon, Ireland and Charles de Galle airport in France.

For passengers flying out of the UK or coming into the UK from the EU, Iceland, Norway or Switzerland, there are clear routes to compensation against carriers. For the carriers affected by events at Heathrow, matters are not as clear cut.

Force Majeure Clauses

Most contracts with airports and terminals will contain force majeure clauses. In English Law, this is not a standalone doctrine. It is determined by express contract clauses. Standard force majeure clauses excuse or suspend the performance of a contract for the duration of an event – when an event beyond the parties control severely hinders performance or renders performance impossible. If there is no force majeure clause in the contract – then the parties have to fall back on the legal doctrine of frustration.

If there is a force majeure clause – then its wording needs to be interpreted very carefully. Many clauses will list specific trigger events like war or embargoes and then include a more generic phrase or a catch-all phrase like ”to any other event beyond a party’s reasonable control” English courts interpret these clauses very strictly and spend time focused on the precise wording of the clause as well as its commercial context.  There is a difference drawn between the impossibility of performing a contract and mere financial convenience. It can be difficult to bring an event within a force majeure clause unless the wording of the clause is very specific.

Key Takeaways for Aviation Contracts

The events at Heathrow should encourage parties to look very carefully at the exact wording of any force majeure clause in their contracts, rather than assume that events automatically fall into the contractual clause.

Contact Us

Don’t wait for disruption to test your contracts. Speak to our Aviation Law specialists about safeguarding your operations. Get in touch with us at online.enquiries@LA-law.com or speak to our Aviation team directly.