May 26th, 2021
Diversions no „factual“ cancellations. Courts allow carriers to divert their aircrafts to different airports when pax are transported totheir original destination with a delay under three hours.
Stenger represented various airlines in proceedings on both Local and District Courts regarding plaintiffs claiming EU 261-compensations for alleged flight cancellations. These flights operated in fact but had to be re-routed to different airports due to extraodinarycircumstances (thunderstorms, power outages and strike of ground handling-crew) at theoriginal destinations.
Plaintiffs claimed that these re-routings are actually „factual cancellations“ as the flight didnot operate on their original route and pax arrived at a different airport – however, they madeit to their original destination on time (below three hours delay). The reasons for the diversionvaried in these cases – in Hamburg and Bremen bound cases power outages and personnelstrikes were causing these, in Dortmund and Düsseldorf weather related diversions andthunderstorms. In each of these cases pax were transported by bus or taxi to their original destination.
Stenger convinced both Local and District Courts Hamburg and Dortmund and succesfullydefended the claims for EU 261-compensations and damages. Judges confirmed a re-routing not to be a „factual cancellation“ as there is no such thing in EU-261 and, in addition, carriersare not obliged to transport pax by aircraft only. But carriers have to make sure that the flightis diverted to an airport near to its original destination and that the flight operates under itsoriginal flight number and with its original crew.
The distinction between „cancellation“ and „delay“ is crucial when it comes to EU-261-compensations: Courts require substantial higher explanations on reasonable measures toavoid a cancellation in comparison to a delay – especially on the usage of spare capacities(flights and crews). These cases could only be won by the carriers because Courts did not define the diversions as a „factual“ cancellation.
Especially the reasoning of District Courts is important as these Courts will not only handle cases with higher amounts in disputes but are also Courts of Appeal for Local Court-judgements.
LG Dortmund 1 S 44/20; LG Hamburg 309 S 5/20, LG Hamburg 320 S 4/20