Consequences of a diverted flight

According to the wording of Regulation 261 it only imposes obligations on airlines in cases of denied boarding, cancellations and delays. However, typically as a result of ATC orders, flights can in some cases end up diverted to another airport leading to major delays for the passengers on board as they have not reached the desired and final destination. This raises the question: How do we legally treat cases concerning diverted flights?

When a flight is diverted
First of all it is important to correctly conceive the motion of a diverted flight. A flight is diverted when the passenger arrives at an airport different from the one indicated as the final destination on the passenger’s original travel plan. Thus, if the ticket says Copenhagen to London Heathrow and the airplane arrives in Stansted it has been diverted.

What happens then?
According to the new guidelines, passengers on diverted flights have the right to be treated in the same way as if the flight had been cancelled. This is also the case where the aircraft after take-off is forced to return back to the airport of departure. However, the guidelines stipulate two exceptions to this:

The first exception is if the passenger at the earliest opportunity is offered rerouting by the airline to the final or any other agreed destination under comparable transport conditions. The case is then to be considered as a delay.

The second exception relates to the London Heathrow/Stansted example above. If the airport of arrival and the airport of the original final destination serve the same town, city or region, the diversion is not to be treated as a cancellation but as a delay. Similar to the above the airline must in this case bear the costs for transporting the passengers to the original final destination or another close-by destination agreed between the parties.

As it can be seen from the above, the two exceptions have similar legal effects. In both exceptions the airline is liable for a delay and in both cases the airline has to pay for further transport to the right destination, e.g. buy a new flight ticket, train ticket, bus ticket, cover taxi expenses, etc.

Comparable transport conditions
When passengers are offered rerouting by the airline in the first exception, this alternative transportation has to be under comparable transport conditions. Whether transport conditions are comparable can depend on a number of factors and must be decided on a case-by-case basis. Depending on the circumstances, the guidelines give the following good practices:

• If possible, the passengers should not be downgraded to transport facilities of a lower class
• The alternative transport should be offered at no additional costs for the passengers – regardless of whether the passengers are upgraded to a higher class
• Reasonable efforts should be made to avoid additional connections
• Any delay must be held to the lowest possible minimum
• If assistance for people with disabilities or reduced mobility was booked for the original flight, such assistance should equally be available on the alternative route.

Town, city or region
Regarding the second exception the meaning of the wording “town” and “city” is pretty straightforward and does not leave much room for interpretation. However, a question that could come up in a case is; what constitutes a “region”?

The guidelines do not define the word “region”; however it must be bigger than a city and probably smaller than a country. A qualified guess of what constitutes a region could for example be the Oresund Region between Denmark and Sweden, thus Copenhagen Airport and Malmö Airport would be in the same Region.

Compensation for a delay when the flight has been diverted
For the sake of clarification the guidelines specify how compensation for a “delay” has to be calculated in the situation where a passenger accepts an alternative airport or destination. In these cases the guidelines stipulate that the time of arrival to be taken into account is the actual time of arrival at the airport for which the booking was originally made or another close-by destination agreed upon by the passenger.

Thus, if the booking is for London Heathrow – Billund Airport, but the plane is being diverted to Copenhagen, the correct calculation of the delay includes the time used on transporting the passengers by e.g. bus from Copenhagen to Billund Airport or another destination agreed upon by the passengers.

IUNO's opinion

The guidelines have shed some light on situations which involve diverted flights. Thus, if a flight has been diverted to another airport the flight is legally cancelled, unless the other airport is close by the original final airport of destination or rerouting is proposed by the diverted airline. In that case the passenger has to be treated as if the flight had been delayed.

IUNO finds that the legal consequences are worse in situations of cancellations. Thus, it is always a good idea for the airline to plan ahead and be prepared in case a flight should be diverted midair.

[Official Journal of the European Union, C 214, 15 June 2016, page 5]

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Stay tuned
In the next period of time we will take a closer look on some of the most highlighted issues in the guidelines which the airlines face very often.