All about liability for flight problems

When a passenger buys a plane ticket, he may reasonably expect to arrive at his destination on time. And, of course, without a scratch and without his luggage getting lost. Is that not the case? Then there is a good chance that the airline is liable. The liability of airlines is quite complicated, however, partly because it is simply such an international tangle in which different rules apply. This page describes the situation in the Netherlands.

Liability for a delayed flight

First and foremost, a number of things are regulated in European Regulation 261/2004. This European regulation states that, in the event of a delay, the airline is obliged to come up with a number of forms of compensation. This does not have to happen with every delay, however, because a number of thresholds apply:

• At least 2 hours' delay on journeys of up to 1,500 km
• At least 3 hours' delay on journeys of more than 1,500 km within the European Union
• At least 3 hours' delay on journeys of 1,500 km up to and including 3,500 km from or to a non-EU country
• At least 4 hours' delay on other journeys

Standard compensation for delays of 2 hours or more

In the event of a delay of at least two hours, the airline must provide a number of extras. They must always do this, even in cases of force majeure.

First of all, the airline must offer passengers "food and drink in reasonable quantities". In practice, passengers usually receive vouchers that they can use at the airport.

In addition, passengers are entitled to two free telephone calls, emails or fax messages.

If necessary, passengers are also entitled to a night in a hotel and to transport to that hotel.

Compensation for delays of 3 hours or more

If there is a delay of three hours or more, the passenger is of course still entitled to the extras above. On top of that, the passenger is also entitled to compensation. However, the airline does not have to pay this compensation in cases of force majeure. That is the case, for example, if there are difficult weather conditions.

The amount of compensation depends on a number of factors:

• €250 compensation for flights up to and including 1,500 km
• €400 compensation for flights of more than 1,500 km and flights to non-EU countries between 1,500 and 3,500 km
• €600 compensation for other flights

Additional compensation for delays of 5 hours or more

In the event of delays of five hours or more, a passenger always has the right to cancel the flight and get their money back. If necessary, the passenger is also entitled to a free return flight to the original point of departure, namely when travelling on no longer makes sense. Here too, the passenger is of course entitled to the compensation and other forms of compensation above.

Possible to combine compensation

On 12 March 2020, the Court of Justice of the European Union gave an interesting ruling on combining different forms of compensation (case C-832/18, A and Others v Finnair). It ruled that it is indeed possible to combine different forms of compensation. That is the case when a flight is cancelled and the passenger accepts a replacement flight from the same airline, which is then also delayed long enough to give a right to compensation. Both the cancellation and the delay then give a right to compensation. In this way, the total compensation can end up being higher than €600.

Liability for a cancelled flight

It is also possible that a flight is not delayed but simply cancelled. A number of situations are treated in the same way. For example, if a flight suddenly has to land at another airport, this can also count as a cancelled flight, unless that airport is near the same city as the original destination (the travel time can then count as delay time).

If a flight is cancelled, different rules do apply. In such a case, the passenger is always given the choice between:

• A refund of the ticket and, if applicable, a return flight to the airport of departure
• An alternative flight (at the earliest opportunity)
• An alternative flight on a date of the passenger's choosing, if there is actually a seat available on that flight

In addition, the right to compensation in principle remains, but here too there are exceptions. For example, a passenger is no longer entitled to compensation if the airline informed the passenger at least fourteen days in advance.

Proving higher damage for a cancelled or delayed flight

The European rules above make things easier for passengers, because they do not have to prove their actual damage. Still, it is of course possible that the actual damage is higher than the compensation the passenger receives under the European regulation.

In such a case, the passenger can invoke the Montreal Convention, an international convention that the Netherlands acceded to in 2004. Under this convention, it is possible to receive compensation for delay of up to 6,303 "Special Drawing Rights" per passenger (Article 22(1) of the convention, as revised by the ICAO with effect from 28 December 2024; source: Canadian Transportation Agency), but the passenger does have to bear the burden of proof.

The value of Special Drawing Rights is recalculated every day and depends on, among other things, the exchange rates of the euro, the US dollar, the Chinese yuan, the British pound sterling and the Japanese yen. The amount in euros therefore differs from day to day.

Liability for lost or damaged luggage

When checked luggage is lost, arrives late or is damaged, the airline is liable. The passenger can receive compensation of up to 1,519 Special Drawing Rights (Article 22(2) of the Montreal Convention, as revised with effect from 28 December 2024; source: Canadian Transportation Agency). The damage must not, however, be the result of a defect caused by the passenger, for example a leaking bottle of sun cream that had not been closed. This liability rule only applies to checked baggage. The passenger remains responsible for hand luggage. The airline can then only be liable if it has made a mistake itself.

Insuring against problems with airlines

The European protection rules offer a form of basic protection, but this will by no means always be enough. Moreover, passengers often have to pay costs up front, and it can take a while before they receive the compensation. However, it is not the case that travel insurance will pay out for delays. For this, the passenger really has to hold the airline liable themselves.

That said, legal expenses insurance can be useful here if the airline does not act correctly. For example, the airline may claim that there is force majeure when that is not the case at all. The legal expenses insurer will then pay the legal costs and make sure that the passenger still receives the compensation.

Finally, some travel insurance policies will pay for damage to luggage, even when that damage is the result of, for example, theft. Especially when the value of the luggage is higher than this limit, it is advisable to take out luggage insurance or travel insurance with luggage cover.