Despite several days' notice, a strike counted as an extraordinary circumstance

Six passengers were scheduled to fly from Bergen to Venice with a layover in Amsterdam in July 2019. But on the day of departure, the flight between Amsterdam and Venice was cancelled due to a strike that affected several Italian airports. The scale of the strike meant that there was a reduced capacity at the airports of Venice, Milan, Bologna and Verona where less than half of the planned flights were completed.

The air carrier rebooked the passengers, who now - instead of flying from Bergen via Amsterdam to Venice - had to fly from Bergen to Copenhagen, from there on to Frankfurt and then to Venice. The rebooking meant that the passengers arrived at their final destination 12 hours later than originally planned. On that basis, the passengers made a claim for compensation from the air carrier following the rules of Regulation 261/2004.

The claim was denied

Initially, the air carrier rejected the claim on the grounds that the delay was due to an extraordinary circumstance beyond the air carrier's control. The air carrier also insisted that the rebooking they had made was the best possible rebooking.

The passengers acknowledged that the delay was initially triggered by a third-party strike and was therefore beyond the air carrier's control. However, the passengers felt that the air carrier had not done enough to avoid or reduce the delay. The passengers believed that the air carrier had knowledge of the strike prior to the day of departure, as the strike was announced several days earlier. Therefore, the air carrier should have been able to find a better solution that did not entail a delay of 12 hours.

The court ruled in favour of the air carrier

The court's decision was in favour of the air carrier. The court ruled that the air carrier's rebooking had been the best option, given the situation. The court also noted that a strike by a third party is an event that is beyond the control of the air carriers and therefore relieves the air carrier of the obligation to pay compensation.

The fact that the actual strike had been announced several days earlier did not change the situation. In this connection, the court pointed out that in cases of a strike, emphasis must be placed on the fact that the development of collective negotiations is always uncertain and difficult to predict – notification of strike is therefore not necessarily of great value. In addition, the court also emphasized that air carriers are neither obligated to, nor in a position where they can participate in or influence a third-party labour dispute.

Finally, the court also pointed out that the air carrier not notifying the passengers of the risk of delay did not give the passengers a right to compensation.

IUNO’s opinion

The case is interesting for several reasons. The Norwegian court points out that air carriers are not obliged to cancel or reschedule their flights simply because they receive a notice of a possible third-party strike. The air carriers are entitled to maintain their original plans for as long as possible, since the nature of labour disputes makes it almost impossible to plan around them – it is not possible to say whether a strike notice actually results in a strike.

The case also shows that a rebooking, which entails an extra layover and a total of 12 hours delay, may well, under the circumstances, be considered to constitute a sufficient precaution.

IUNO recommends that air carriers ensure documentation of the decision-making process when rebooking, and that the passenger be involved in the choice of rebooking where possible.

[Oslo District Court judgement of 18 February 2018 in case 21-168885TVI-TOSL/06]