Air Carrier not liable: No requirement to rebook to an earlier flight

In August 2018, a married couple was set to fly from Copenhagen to Bali with a layover in Dubai. The departure from Copenhagen was delayed so the couple missed their connecting flight from Dubai to Bali. They arrived in Bali almost six hours too late.

The District Court found that the delay occurred due to an unannounced strike at the ramp agent in Copenhagen Airport. The strike lasted almost an hour and a half.

The ramp agent was one of the airport's regular suppliers and had no contractual relationship with the air carrier. Even so, the couple maintained they were entitled to compensation from the air carrier.

The couple argued that the rebooking they were offered was not satisfactory, and they referred to two alternative rebookings that would have shortened the delay. One of these was a flight with an earlier departure than their original flight from Copenhagen.

The ruling of the Eastern High Court

In its ruling, the Eastern High Court referred, among other things, to a judgment of the European Court of Justice of 23 March 2021 (case C-28/20), regarding a strike among workers of Scandinavian Airlines. Here, the European Court of Justice ruled that extraordinary circumstances that exempt airlines from the obligation to pay compensation, may arise due to a strike. The ruling also emphasized that the strike must be carried out by airport staff who are not employed by the airline for the exemption to apply. We have previously written about a similar case in the newsletter here.

As the delay in this case was due to a strike at the ramp agent, it was considered an unusual circumstance beyond the air carrier’s control. This also explains why the air carrier was only notified of the strike after boarding had started.

The Eastern High Court stated that the alternative routes relied upon by the claimants as better rebookings were prior to the original time of departure. The alternative routes were therefore prior to the strike and hence irrelevant.

IUNO’s opinion

The decision shows that a strike among personnel not directly employed by the air carrier is, in principle, an extraordinary circumstance beyond the air carrier’s control. In this connection, the High Court rejected the passengers' view that air carriers should be responsible for all matters within their usual activity. According to the decision, such a principle does not apply, and strikes among air traffic controllers and airport staff will, therefore, be considered an unusual circumstance.

In addition, the decision shows that there are limits to what is expected of air carriers in terms of rebooking to minimize passenger delays. IUNO recommends that air carriers take note of this decision. Rebooking is not required before the first possible occasion. In many cases, this will mean that it will be sufficient that the rebooking relates to the first flight after a layover.

[Ruling of the Eastern High Court of 14 December 2021 in case BS-5090/2021-OLR]