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.
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.
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.
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.