The Netherlands – Cases

The Netherlands is divided into 19 districts, each with its own court of first instance. Schiphol, the International Airport of Amsterdam, belongs to the district of the court in Haarlem. Appeals can be lodged with the competent court of the five Courts of Appeal. For cases which are decided in Haarlem this is the Court of Appeal in Amsterdam. In cassation, the Supreme Court in The Hague is the competent court. Please visit http://www.rechtspraak.nl/english/Pages/default.aspx for more information.

Case law is published on the government website www.rechtspraak.nl.

A selection of cases on aviation law are published with case comment in the journal “Schip en Schade” (referenced as “S&S”), which specializes in maritime and transport law.

 

District Court of Maastricht – 20 June 2012 (not yet published)

Unruly passenger liable for costs of unscheduled stopover

A passenger bought a ticket for a flight operated by TUI Airlines. During the flight, the passenger made insults against crew members and threatened several times on an aggressive tone that he carried a bomb and would kill everyone. As official warnings were ignored by the passenger, the captain decided to make an unscheduled stopover in Ireland, where the passenger was taken into custody by the Irish authorities. An investigation showed that there was no bomb on board of the aircraft. The passenger was nonetheless sentenced to imprisonment for 2 years and 3 months on grounds of offending the Irish Air Navigation and Transport Act 1988.

TUI incurred heavy costs because of the unscheduled stopover and is seeking recourse against the passenger before the District Court of Maastricht (the Netherlands). The legal grounds for the recourse were principally the General Terms and Conditions (GTC) of TUI and alternatively an unlawful act (in Dutch “onrechtmatige daad”). The GTC of TUI prohibit all passengers from behavior that could endanger the safety on board, explicitly including the use of insulting language or making false bomb threats. Furthermore, the GTC stipulates that non-compliance with the aforementioned provision results in liability for damages incurred by the airline, including the costs for an unscheduled stopover. The applicability of the GTC was undisputed. Although the passenger contested that he insulted the crew and made false bombs alarms, the Court disregarded this defense because the passenger failed to provide any further substantiation for his arguments. The passenger also contested the necessity to make the stopover because of his alleged insults and bomb threats. The Court also rejected this argument. The Court held first and foremost that a captain confronted with a situation endangering the safety must have a certain margin of discretion. Subsequently, the Court held that in view of the behavior of passenger [x], it cannot be reasonably expected from a captain to continue the flight. Hence, the court held that the decision of the captain to make the unscheduled stopover was legitimate in the view of the circumstances.

Finally, the passenger argued that his behavior was the direct consequence of a mental disorder and that therefore his behavior cannot be imputed to him. However, the court also disregarded this defense because of the passenger failed to provide sufficient evidence. The Court concluded that the passenger is liable under the GTC for the damages suffered by TUI.

 

Court of Appeal Amsterdam, 16 February 2010 (LJN: BM5267)

Compensation – delay or cancellation? Regulation 261/2004

The claimant had bought four tickets to fly from Schiphol to Paramaribo on 29 July 2007 at 12:15. The flight is not executed until 26 hours later. Compensation is claimed on the basis of article 7 (cancellation) of the denied boarding regulation. Taking into account Sturgeon-Condor and Bock-Air France (C-402/07 and C-403/07), the Court of Appeal concludes that the claimant is entitled to compensation based on article 7 because the family arrived at their destination more than 3 hours late. The air carrier alleges that the delay was caused by extraordinary circumstances as it was caused by technical problems. The court considers that the air carrier has not established that the cause of the technical problems is extraordinary (outside the course of normal business), therefore the claimant is entitled to EUR 600 per ticket.

 

Court of Appeal Amsterdam, 1 September 2008 (S&S 2009, 59)

Article 28 Warsaw Convention 1955, jurisdiction and establishment through which the contract has been made.

The case regards a contract for carriage of flowers from the Netherlands to China concluded with China Eastern Airlines (“CEA”). It is argued by the claimant that the contract has been made by a bureau (Global Airline Services, “GAS”) in Schiphol, therefore the Court in the Netherlands (Haarlem) has jurisdiction. GAS represents CEA in the Netherlands. GAS does not form part of the organization of CEA but is a wholly independent company, represents also other airlines and uses its own general conditions. The Court of Appeal concludes that to be an establishment in respect of article 28 Warsaw Convention, more is required than the position of GAS. The Court declines jurisdiction.

 

Court of Appeal Amsterdam 28 August 2003 (S&S 2004, 56)

Definition of “accident” in the light of article 17 Warsaw Convention 1955

Mrs. Ypma was passenger on a flight of KLM from Amsterdam to Orlando. Once she was seated in the plane another passenger tried to pack her hand luggage in the overhead bins above the seat of Mrs. Ypma. The luggage fall down on Mrs. Ypma who was injured and disembarked the plane before takeoff. Mrs. Ypma claims damages from KLM. The question in the case is whether the incident is an accident in light of article 17 Warsaw Convention 1955 and regulation 2027/97.

The Court of first instances rules that the incident is not an accident based on the wording and goal of the Convention. The Court of Appeal confirms this judgment and considers that the word accident is not defined in the Convention; therefore it has to be read taking into account the content and its purpose. The Court of Appeal rules that the necessary connection between the carriage and the incident is missing, therefore the incident is not an accident as meant in article 17 Warsaw Convention. The claim is dismissed.

 

 

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