Airline Not Liable for Negligence of Hotel

10th December 2020 by Sarah Prager

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It was bound to happen sooner or later. What wasn’t clear was who was going to be liable for it. In NM v ON (Case C-530/19) an airline cancelled a flight, and in satisfaction of its obligations under Article 9(1)(b) of Regulation (EU) 261/2004, known to you and me as the Denied Boarding Regulations, accommodated its passengers overnight at a hotel.

One of the passengers duly had an accident owing, she alleged, to the state of the hotel premises, and sued the airline for damages.

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The question referred by the domestic court before which the claim was brought was whether the airline was liable for damages flowing from the satisfaction of its obligations under the Regulations.

The Court answered in the negative. The duty of the airline extends only to arranging accommodation; unlike an organiser under the Package Travel and Linked Travel Arrangements Regulations 2018, it does not then take on liability for the acts or omissions of the hotelier in question.

As the Court observed (at paragraph 25):

“The context of Article 9(1)(b) of Regulation No 261/2004 supports an interpretation whereby air carriers are not required to organise the actual implementation of the accommodation arrangements themselves. Article 9(2) of that regulation provides that air carriers are required, in the context of the right to care of the passengers concerned, to offer them free of charge, inter alia, two telephone calls or emails. However, although it follows from that provision that the air carrier must in fact make the means of making those calls or of sending those emails available to passengers free of charge, it cannot be inferred from that fact that that carrier is thus required to organise, on its own responsibility, the implementation of the telecommunications operations necessary for that purpose.”

Furthermore, the Court had already, in Rusu, (Case C 354/18), held that the Regulation does not provide for the compensation of individual damage, redress for which requires a case-by-case assessment of the extent of the damage caused.

As a consequence the claim for damages failed.

This, it is suggested, must be right; the Denied Boarding Regulations are intended to ensure that people whose flights are delayed or cancelled are not left friendless in an airport. They were never intended to extend liability to airlines for the acts or omissions of independent subcontractors. Whether or not an airline could send passengers to a hotel it knew or ought to know is unsafe or unsuitable is likely to be another matter, however; the parameters of the duty, as opposed to the recoverable loss, remain undetermined to that extent.

Sarah Prager is a Barrister with 1 Chancery Lane
She can be contacted at sprager@1chancerylane.com

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