Air Carrier Liability in the Netherlands

As in many countries, the liability of air carriers in The Netherlands is inspired and governed by international regulations and conventions.

The Netherlands is a contracting party to the 1929 Warsaw Convention for the Unification of certain rules relating to international carrage by air and the 1955 Hague protocol. With the modernisation of air transport, the Warsaw System has been updated constantly through the addition of new instruments. The inadequacy of the 1929 Warsaw Convention, which governed air carriers’ liability for death and injury, and of its subsequent revisions led to the need to modernise and unify the rules on liability. The 1999 Convention for the Unification of Certain Rules for International Carriage by Air, known as the ‘Montreal Convention’, entered into force on the 4th of November 2003 and entered into force in The Netherlands on the 28th of June 2004.

The Montreal Convention of 1999 introduced a uniform legal framework to govern air carrier liability in the event of damage caused to passengers, baggage or goods during international journeys.

At European Community level, and to ensure a uniform system, Regulation (EC) No 2027/97 imposes unlimited liability on Community air carriers in the event of death or injury to passengers. This Regulation was amended by Regulation (EC) No 889/2002, which applied the rules of the Montreal Convention to all flights, whether domestic or international, operated by Community air carriers.

The Montreal Convention introduces a new comprehensive legal framework, the most important contributions of which are as follows:

  • the principle of the air carrier’s unlimited civil liability in the event of bodily injury; this splits into two tiers:
    • a first tier of strict carrier liability for damages of up to 100 000 SDRs (special drawing rights, as defined by the International Monetary Fund, i.e. around EUR 135 000);
    • in excess of that amount, a second tier of liability based on the presumed fault of the carrier, which the latter may avoid only by proving that it was not at fault (the burden of proof is on the carrier);
  • the principle of making advance payments, in the event of bodily injury, to enable victims or the persons entitled to compensation to cover their immediate economic needs;
  • the possibility for the victim, or the persons entitled to compensation, to bring suits before the courts in the passenger’s principal place of residence;
  • an increase in the air carrier’s liability limits in the event of delay, and in the event of damage caused to baggage (delay, loss or damage);
  • modernisation of transport documents (electronic airway bills and tickets);
  • clarification of the rules on the respective liability of the contractual carrier and the actual carrier;
  • generalised institution of the obligation for air carriers to maintain adequate insurance;
  • introduction of the so-called ‘regional’ clause allowing economic integration organisations such as the European Union to accede to the new Convention.

Dutch case law on air carrier liability

Dutch case law on passenger claims is not abundant. The focus of this article is on cases where passenger injury and loss, damage, delay or destruction of cargo or luggage played a role.

Injury – Article 17 Warsaw Convention

(1)The carrier is liable for damage sustained in case of death or bodily injury of a passenger only if the accident which caused the death or injury took place on board the aircraft or in the course of embarkation or disembarkation.

In Ypma v. Martinair (28 August 2003), passenger Ypma suffered injury, when another passenger, while trying to put hand luggage in the overhead storage bins, dropped a suitcase which caused injury to Ypma. Ypma sued Martinair for the suffered damages. The Court of Appeal considered that the only relation between this event and the carriage by Martinair was formed by the circumstance that the accident took place on board of an aircraft of Martinair. Considering the object of article 17 of the Warsaw Convention and EC-Regulation 2027/97 a causal link needs to exist between the cause of the accident and the operation of the aircraft to establish an “accident” as defined in article 17 of the convention. The court therefore held that Martinair was not liable for the damages. However, in a decision of 3 December 2013 the same Court of Appeal took a new approach and ruled that under the similar article Article 17 section 1 of the Montreal Convention makes the airlines automatically liable for any injury to the passenger that resulted from any unexpected or unusual event or happening that is external to the passenger.

(2) Another passenger (Passenger X v. Martinair, 9 May 1996) claimed damages in summary proceedings for whiplash trauma that she alleged to have suffered as a result of turbulence during a flight with Martinair. The court held that if a passenger suffered such violent body movements as a result of turbulence that a whiplash-injury must be attributed to it, it can be considered an “accident” as defined by article 17 of the Warsaw Convention. Whether the turbulence was caused by the turbulence, however, required further expert examination, for which summary proceedings were not deemed suitable.
If an accident took place in the sense of Article 17, the question must be answered whether Martinair took all necessary measures to avoid injury (article 20). The passenger argued in vain that Martinair should have postponed departure until the thunderstorm had passed or alternatively the pilot should have tried to avoid the storm when in the air. The court held that Martinair could not have taken measures to avoid the turbulence and neither should have taken other measures to avoid the accident than to warn the passengers of the possibility of turbulence and order them to keep their seatbelts fastened.

Loss of baggage – Article 18 Warsaw Convention

The carrier is liable for damage sustained in case of destruction or loss of, or of damage to registered baggage, if the occurrence of the damage so sustained took place during the carriage by air.

Passenger Talamini (Talamini v. Transavia, 8 June 2005) flew from Amsterdam in The Netherlands to Tenerife, Spain. At the end of the journey, the suitcase he had checked in did not arrive at Tenerife. The suitcase and its contents were lost. Talamini claimed damages from Transavia for replacement of his belongings and compensation for his spoiled holiday. As the disappearance of the suitcase took place after it had been checked in, i.e. during the carriage from Amsterdam to Tenerife, the Court applied the Warsaw Convention as amended by the Montreal Protocol. Transavia claimed that its General Conditions excluded liability for lost luggage. The court held that the general conditions, relieving the carrier from liability, were null and void under Art. 23 of the Warsaw Convention. Pursuant to Art. 22 (2) sub b of the Warsaw Convention, Transavia’s liability is limited to 17 SDR per kilo of luggage. The court therefore limited its award to this amount.

Limitation of Damages – Article 22 (2) Montreal Convention

Under article 22 (2) of the Montreal Convention, the liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited to 1,000 Special Drawing Rights per passenger, unless the passenger has made, when checking in the baggage, a special declaration of interest in delivery at destination and, when applicable, has paid a supplement. In such cases the carrier will be liable to pay the value declared by the passenger, unless the airline proves that the value declared by the passenger is incorrect

The events in the above mentioned case of Talamini v. Transavia took place in 2000, when the Montreal Convention had not yet entered into force in The Netherlands. Under the Montreal Convention, the claimant could have received more compensation.

Compensation for injury suffered by a passenger (Richardson v. KLM) when running through a so called airbridge to fetch forgotten baggage from the plane can not be claimed under Article 17 of the Warsaw Convention as the incident did not take place in the course of any of normal embarkation or disembarkation.

Delay – Article 19 Warsaw Convention

A flight of from Lisbon to Amsterdam incurred a delay of 19 hours. Touw c.s. (Touw c.s. v. Transavia, 18 December 2001) claimed reimbursement of costs of an alternative flight, as well as compensation for material and immaterial damages suffered as a result of the delay. The court held that Transavia cannot rely on the exclusion of liability in their General Conditions because such exclusion of liability is void under Article 23 of the convention. According to the Warsaw Convention the carrier is liable for delay, unless the carrier proves that he and his subsidiaries have taken all measures necessary to prevent delay or that it was impossible to take such measures. The Court held that Transavia failed to take care of the passengers, as the failure of its subsidiary Servisair to provide the necessary care to the passengers can be attributed to Transavia.

The next step for the Court was to determine which damages could be claimed. As the Warsaw Convention does not specify the type of damages that can be claimed, this should be determined by applying internal Dutch Law. The costs made by Touw c.s. for an alternative flight must be considered as directly resulting from the delay. In view of the duration of the delay, these claimed costs were held to be reasonable. Additional costs for immaterial damages, these could not be awarded under Dutch law, as emotional distress and loss of enjoyment of a holiday cannot be claimed as damages under the Dutch Civil Code.

Delay – Article 19 Montreal Convention

A flight from Sharm al Sheik, Egypt, to Amsterdam, The Netherlands, was delayed by 4 hours. One of the passengers (Passenger X v. Transavia, 7 November 2007) claimed compensation from Transavia for food and drinks he and his family consumed during the delay and taxi costs and immaterial damages the family suffered as a result of the delay. The passenger claimed that Transavia did not supply food and drinks, which the passengers were entitled to based on Article 9 of the European Regulation, and therefore he had to make alternative arrangements. The Court awarded EUR 100 to the claimant as well as the taxi costs. Immaterial damages cannot be awarded under the Dutch Civil Law system. Transavia’s defence that the delay was the result of a technical problem and that Transavia has taken all measures necessary to prevent damage was not accepted, because the technical problem was a result of a rough landing at Sharm al Sheik, which circumstance can be attributed to Transavia.

Further information

Our team can assist you with the resolution of air carrier liability disputes. For further information, please feel free to contact our contact person for passenger claims.

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