Norwegian Airlines says that a defective part caused our cancellation. Can I get compensation?


First, Michele Matarese’s flight was canceled. Then it was delayed for for two days. And finally, Norwegian Airlines refused to reimburse her expenses, claiming that the cancellation was due to an “extraordinary circumstance” — a defective part.

Sadly, Matarese is a victim of a loophole in the coverage provided by the European air passenger protection law, EU 261. Under this law, airlines don’t have to reimburse passengers for airfares or incidental expenses when they cancel flights because of “extraordinary circumstances.” And they sometimes apply this law in questionable situations, such as Matarese’s claim for reimbursement.

But how is a defective part an “extraordinary circumstance” — and why should it exempt Norwegian Airlines from its obligations to transport or reimburse its passengers?

Matarese’s story begins at Kennedy Airport in New York, where she and a companion were scheduled to fly to Copenhagen, Denmark, and take a prepaid trip to Stockholm. The crew stopped the boarding process and had those passengers already on the flight deplane, claiming that there was a mechanical problem with the aircraft. After two hours, the captain declared that the flight was canceled.

The crew instructed the passengers to return the next day. But when Matarese and her companion returned to the airport, the flight was again delayed, and the passengers were again instructed to return the following day, when their flight finally departed for Copenhagen. Matarese and her companion lost their prepayments for their trip.

“I lost my hotel, passes, train tickets and airfare,” she says.

She adds:

We tried canceling our flight when we were delayed, but Norwegian refused. We were going to Stockholm for a couple of days but missed our train over so we could not use the flight back or our Stockholm passes.

We tried getting on the next day’s flight, but only premium seats were available. We called customer service and asked if we could have these without any of the other upgrades (food, etc.) but were told no.

This was only a couple of hours prior to the flight leaving, so I have to believe it left with empty seats.

Matarese made a claim for her lost expenses, believing she was entitled to compensation in accordance with EU 261, which requires reimbursement for delays of 600 euros (about $669) for her and her companion. But Norwegian Airlines rejected her claim.

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Norwegian Airlines’s general conditions of carriage indicate that if a flight is canceled, rerouted or delayed by five hours or more, the airline must either rebook the passengers on the next available flight in seats of the same cabin type as soon as possible, within 14 days of the original flight. If Norwegian Airlines can’t fly the passengers directly to the original destination, then it must, at its own expense, ensure that the passengers reach that destination. And if passengers are unwilling to accept these alternatives, Norwegian Airlines must fully refund their airfares.

The general conditions of carriage also allow for damages resulting from delays of up to 4,694 Special Drawing Rights (SDRs) as well as 1,131 SDRs for losses and damage to checked luggage.

The general conditions of carriage do contain a disclaimer that appears to be designed to exempt Norwegian Airlines from liability in most cases:

We are liable for Damage occasioned by delay in the carriage by air of passengers, Baggage or cargo. Nevertheless, we shall not be liable for Damage occasioned by delay if we prove that we and our servants and agents took all measures reasonably be required to avoid the Damage, or that it was impossible for it or them to take such measures, cf. Article 19 of the Montreal Convention.

Norwegian Airlines got Matarese and her companion to Copenhagen within two days of the original scheduled departure time. But we think it should also compensate them for the lost expenses. Assigning an aircraft with a defective part to a flight suggests that the airline’s employees did not take all measures reasonably required to avoid the delays and ensuing losses.

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After Norwegian Airlines rejected Matarese’s claim twice, we reached out to the airline on her behalf. (Our contacts section includes executive contact information for Norwegian Airlines.)

Unfortunately, we had no more success than Matarese in persuading Norwegian Airlines to reimburse her expenses.

Matarese can appeal the rejection to the European Commission, which can levy fines against Norwegian Airlines if it determines that the airline improperly withheld reimbursement of her claim.

We wish we could have helped Matarese through direct advocacy, and we hope that the European Commission will protect future air travelers by clarifying “extraordinary circumstances” and closing this loophole in EU 261.


Jennifer Finger

Jennifer is the founder of KeenReader, an Internet-based freelance editing operation, as well as a certified public accountant. She is a senior writer for Elliott.org.

  • Steve Rabin

    Extraordinary circumstances: weather, air traffic control or other things beyond the control of the airline.

    Defective aircraft: very much within the control of the airline.

    Question: since the OP was leaving from a US airport on a non-EU airline, does EU 261 apply? (I don’t think so…even if they are going to an EU city)

  • sirwired

    Mechanical difficulties are explicitly NOT an “Extraordinary Circumstance”; this is a well-settled issue by the European Court of Justice. (The first case regarding this was decided in 2008, so it’s not as if Norwegian hasn’t gotten the memo.)

  • SSpiffy

    If you can share a citation for that, I’m sure Elliot would love the info.

  • Alan Gore

    Because this was a departure from JFK, could LW have this resolved under American law, which unlike EU law, makes mechanicals the sole responsibility of the airline? If she could invoke this, then as a system airline Norwegian would have to send her on as soon as possible using another carrier.

  • sirwired

    I got it right from the Wikipedia article on EU 261, and there are innumerable blogs with even more detail.

  • Lindabator

    a defective part is not something an airline usually deals with – and these are reported up the chain, so any other aircraft ordering the same parts are checked to ensure no other defects are found – so in this case, yes, it is extraordinary – and the problem with booking an airline with only 1 flight a day/couple flights a day – you may have a longer delay when things go wrong. SO TAKE OUT INSURANCE!

  • Lindabator

    actually – in this case, might BE — a defective part does not fall under standard maintenance – but why book an airline with such limited flight options and NOT take out insurance to cover yourself???

  • Lindabator

    if it was a defective part – NOT considered a part of regular maintenance — and it is a real PITA when an airline finds this, because all their other aircraft fitted with the part also need to be checked to fix/remove the item (NOT fun)

  • Ward Chartier

    A defective part is not an extraordinary event. Rare, yes, but not extraordinary. A reliability engineer could calculate the probability of the part failing. It is, however, not very predictable when a part will fail, and such time of failure is nearly random. Such an argument might logically dismantle Norwegian Airlines’ argument, but don’t expect their executives or minions to understand and respond positively to it.

  • sirwired

    The only exception I know of for technical problems not triggering EU 261 is something like an Airworthiness Directive grounding flights of a particular aircraft type, and something like sabotage by 3rd parties.

  • Chris_In_NC

    ^ THIS
    Flight delays and cancellations can occur with ANY airline. The issue with an airline with limited flight options and no interline agreement means that you are so SOL if the flight is cancelled. I truly feel bad for the OP because it sounds like they padded their schedule for delays up to 1 day, but the 2nd delay is what really screwed things up.

  • Defective parts are expected in engineering. That’s why we do maintenance and test. It appears that the mechanics testing was insufficient because they didn’t catch the problem before they deployed the aircraft.
    This is NOT extraordinary circumstances. This is normal maintenance.

  • Defective parts are supposed to be exposed through testing in normal maintenance.
    They discovered the problem before the flight took off. That means the problem was discoverable and the mechanics missed it.

  • AAGK

    What are her total prepaid losses? What was the cost of the premium seat? By premium, she means same cabin just a bit more legroom, no?

  • John Baker

    It’s settled law that maintenance issues are not extraordinary circumstances under EU261.

    If nothing else, use one of the claims companies that have popped up like ClaimCompass or AirHelp (both of which Chris wrote about in an article for the Washington Post). They take a cut but something is better than nothing

  • FQTVLR

    Their definition of defective part might include a part that has worn down from use, been improperly installed, etc. It is unlikely, based on the fact that the plane had come in from Europe that the part itself was defective. A relative that works for AirBus in France says they use the English word defective to indicate a problem with a plane, a part or a particular function if it is not performing correctly. He says that does not specifically mean the part was made incorrectly, but usually means a mechanical malfunction as well. As others have noted, the EU courts have said that this type of malfunction is not an extraordinary circumstance. My nephew who is a Boeing engineer also says Europeans use defective as a generic word for all problems. He notes that the British are the only Europeans he does not hear the word defective from on a regular basis.

  • Alan Gore

    But in this case Norwegian actually did have a flight available the next day, with premium seats available. Under American law they would have been forced to accommodate the delayed pax in them. LW has at least Small Claims recourse for this.

  • disqus_00YDCZxqDV

    Ridiculous. And bringing them back to the airport and making them go through security and all that a second time, for nothing, double ridiculous.

  • John Baker
  • Annie M

    Isn’t there a way to appeal this? If it had been me and I needed to get there I would have paid for the upgraded seats and tried to settle it later. It would have been cheaper than losing all that she lost.

    If not, this is a warning about using these discount airlines when you absolutely have to be somewhere. When something like this happens and there is only one flight out a day – this is exactly what could happen when a flight is canceled – the next available flight might be three or four days away.

  • Bill___A

    Making sure the plane is in working order is the airline’s responsibility, not the passenger’s. If the airline wants to recover money from the parts manufacturer, I am sure they are free to do so. But this is not the passenger’s fault. They should pay them out.

  • greg watson

    we had a flight postponed because the ‘batteries’ were dead & had to be recharged, or more likely replaced. I guess that is considered an extraordinary whatever.

  • jim6555

    From what the text says, they possibly had to travel to the airport and possibly go through security a total of three times. Norwegian should have put these passengers on other carrier’s flights.

  • cscasi

    Depends on just exactly was “defective” and what the airline meant when it said “defective”.

  • PsyGuy

    There is nothing extraordinary about an airline being responsible for maintaining its aircraft. Further, airlines can not be virtue of the CoC exempt themselves from EU 261.

  • PsyGuy

    Airlines are responsible for sourcing their repair parts. All mechanical and structural components fail, it is not an issue of if, but when, this is something that is absolutely expected. It is a characteristic of the universe, all systems tend towards disorder and entropy.

  • PsyGuy

    More like bad QC.

  • PsyGuy

    They have another word for it that starts with “SH”.

  • PsyGuy

    That’s most flights by airline for flights that aren’t between major hub ports (NYLON).

  • PsyGuy

    Don’t forget terrorism, if your flight is hijacked that is an exception to EU 261.

  • PsyGuy

    The EU Commission will be a more efficient route, than filing in small claims court in the US.

  • PsyGuy

    Yeah, but it wasn’t rescheduled and delayed by two days.

  • greg watson

    we did miss our connecting flight because of this & missed a day of our all inclusive vacation…………………….but I still don’t understand your comment ? That definitely is the airlines responsibility & not an extraordinary circumstance !

  • DChamp56

    Well, I would send a letter to one of the executive contacts stating:
    I will drop my case against you providing you:
    Show proof of defective part (including receipts of repairs and a signed statement by the aircraft mechanic as to the non-flight worthiness of the aircraft).
    I will (at my leisure) investigate your paperwork (hoping it doesn’t get lost while in my care), and let you off the hook only after I have reviewed such paperwork.
    Thank you for your time!

  • Mark
  • Mark

    Aside from the fact that mechanical issues do not qualify as “Extraordinary Issues” in EC261, there’s something not quite right with all of this…

    1) EC 261 requires airlines to offer a full refund of all unused sectors on a ticket to passengers if travel is delayed by more than five hours and the passenger no longer wishes to travel. Norwegian should have honoured Matarese’s refund request.

    2) I don’t understand what’s going on with the point around “we could not use our flight back” – had they only booked a 48 hour trip? A high speed train ticket between Copenhagen and Stockholm is only ~$100 or so, so whilst annoying to have missed the original train, it isn’t a vast expense to replace.

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