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12 December 2018
The Hamburg Local Court recently dismissed a passenger's claim for damages based on denied boarding after the delay of a previous flight which was operated by a code-share partner. The court was of the opinion that the code-share partner is not liable for every further disruption along the course of transportation. The right to claim damages rather requires an "adequate causal" link between the delay and the further disruption.
The plaintiff booked flights from Hamburg to Shanghai via Dubai and Kuala Lumpur, a further flight from Shanghai to Penang via Kuala Lumpur four days later and a return flight from Penang to Hamburg via Kuala Lumpur and Dubai. The first two flight segments from Hamburg to Kuala Lumpur via Dubai were not operated by the contracting airline, but by a code-share partner. The code-share flight from Dubai to Kuala Lumpur was delayed by six hours, so the plaintiff missed his connecting flight to Shanghai and was rebooked on an alternative flight. For reasons that could not be clarified, the plaintiff's reservation for the onward flights from Shanghai to Penang via Kuala Lumpur was cancelled and he was denied boarding in Shanghai. He booked a new ticket from Shanghai to Penang with another airline. His original reservation for the return flights from Penang to Hamburg remained unchanged.
The plaintiff filed a claim for damages with respect to the costs of the new ticket against the code-share partner based on Article 19 of the Montreal Convention. The plaintiff was of the opinion that the denied boarding situation was a result of the delay on the second flight segment and the subsequent rerouting on the third flight segment. Hence the code-share partner was responsible for the denied boarding. The defendant argued that denied boarding does not fall in the scope of the Montreal Convention. Further, the claim in this case could not be based on the delay of the code-share flight, as neither the delay nor the rerouting was the reason for the denied boarding in Shanghai.
The Hamburg Local Court dismissed the claim. According to the court the plaintiff failed to demonstrate that the ticket cancellation regarding flight segments four and five (Shanghai-Kuala Lumpur-Penang) was a direct and immediate consequence of the delay on the second flight segment and the subsequent rerouting. A causal link was neither claimed nor obvious. On the contrary, the court stated that there might be many possible reasons why the plaintiff was taken off the passenger list. In fact, the plaintiff may even have cancelled the fights himself. Even though the court was aware that some airline software automatically deletes a passenger from the passenger list in case they do not use their ticket on a previous flight segment (non-sequential use of coupons), the court did not believe that this is what happened. The court referred to the fact that the plaintiff's original reservation on the following flight segments six, seven and eight (Penang-Kuala Lumpur-Dubai-Hamburg) remained unchanged.
However, even if the software of the contracting airline automatically deleted the plaintiff from the passenger list, the court found that this would not be of relevance. In this case there might have been a causal link, but this would not be adequately causal. Apart from the delay on the code-share flight there would be another reason – that is, the faulty software of the contracting airline. Hence the plaintiff could not claim compensation from the operating carrier as the denied boarding was not caused, at least not adequately, by the delay of the code-share flight.
The decision emphasises that in cases of a delayed code-share flight, the code-share partner is not liable for every delay, cancellation or denied boarding which occurs in the further course of transportation. Consequently, the passenger must substantiate and give proof of a direct and immediate adequate causal link between the delay and a further disruption.
For further information on this topic please contact Kathrin Vaupel at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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