Air Carrier not liable: No requirement to rebook to an earlier flight
In the event of delay or cancellation, airlines are obliged to pay compensation unless the delay or cancellation is due to extraordinary circumstances. Air Carriers must also take all reasonable precautions, including, if possible, rebooking the passengers under comparable transport conditions. A new ruling from the Eastern High Court shows what is expected from the air carriers in such circumstances.
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]
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]
Similar
The team

Aage
Krogh
Partner
Amalie
Sofie Sveen Kvam
Legal assistant
Anna
Bonander
Legal assistant
Anne
Poulsen
Senior legal advisor
Anne
Voigt Kjær
Junior legal assistant
Anton
Winther Hansen
Legal assistant
Bror
Johan Kristensen
Senior legal advisor
Carl-Emil
Schumann Dinesen
Senior legal advisor
Caroline
Bruun Ibsen
Senior legal advisor
Chris
Anders Nielsen
Senior legal advisor
Clara
Andersen Øfeldt
Senior legal advisor
Elvira
Feline Basse Schougaard
Legal advisor
Emma
Frøslev Larsen
Legal manager
Fransine
Andersson
Senior legal assistant
Frederikke
Østerlund Haarder
Junior legal assistant
Frida
Assarson
Senior legal assistant
Hila
Noori Hashimi
(Leave of absence)
Ittqa
Hussain
Legal assistant
Isabella
Rocio Nielsen
Legal assistant
Izabell
Celina Bastrup Lüthje
Legal assistant
Jasmin
Hussein El-Khodr
Legal assistant
Kathrine
Münter
Legal advisor
Kathrine
Wohlers Sørensen
Legal advisor
Line
Isling Bjerg
Legal assistant
Lise
Jørgen Carlsen Gjerde
Associate
Liva
Tværmose Høegh
Junior legal assistant
Lærke
Sophia Slot
Junior legal assistant
Magnus
Henckel Holtse
Junior legal assistant
Maria
Hindsberger
Junior legal assistant
Max Emil
Frost Christensen
Senior legal assistant
Maya
Cecillia Jørgensen
Senior legal advisor
Mie
Lundberg Larsen
Legal manager
Rosa
Gilliam-Vigh
Junior legal assistant
Sara
Kargo
Legal assistant
Selma
Agopian
Senior EU associate
Sofie
Storli
Legal assistant
Sophia
Maria Dahl-Jensen
Senior legal advisor