• Rechtssachenbeschreibung
    • Nationale Kennung: X ZR 147/01
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 15/10/2002
    • Gericht: BGH
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Deutschland Deutsch
  • Artikel der Richtlinie
    Package Travel Directive, Article 5, 1. Package Travel Directive, Article 5, 2.
  • Leitsatz
    1. Ein Reisender darf den Reisevertrag wegen nicht voraussehbarer höherer Gewalt nach § 651j BGB bereits dann kündigen, wenn mit dem Eintritt des schädigenden Ereignisses (hier: Hurrikan im Zielgebiet Karibik) mit erheblicher, und nicht erst dann, wenn mit ihm mit überwiegender Wahrscheinlichkeit zu rechnen ist.
  • Sachverhalt
    The claimant booked a package holiday for herself and three dependants with the respondent, a travel organiser, for the period 21.9.-6.10.1998 in a holiday resort in the Dominican Republic; the total cost amounted to 2970 DM per person. The holiday resort was already prepared for the expected hurricane “George” when the holidaymakers arrived on 21.9.1998 at 1800hrs. The hurricane hit the resort during the night and caused considerable damage. On 24.9.1998 the claimant and other holidaymakers were taken to a hotel in the north of the country. Following several applications by the claimant to the holiday representatives, she and her dependants were returned to Germany on 30.9.1998.
    The respondent refunded 2305 DM to the claimant out of court. The claimant sought a refund of the whole holiday price from the travel organiser for the four holidaymakers, who had subjugated their rights to the claimant, less the refunded amount, totalling 9575 DM, as well as a further 4000 DM, with additional interest respectively, in damages for uselessly spent holiday time. She submitted that the respondent failed to fulfil the information duties incumbent upon it in relation to the impending hurricane, for which a preliminary warning was already issued on 20.9.1998 at 2300hrs central European time (CET) and a main warning was given on 21.9.1998 at 1100hrs CET.
    The Landgericht (district court) awarded damages in the amount of 13207 DM plus interest, in the “Berufung” (appeal on points of fact and law) the Oberlandesgericht (higher regional court) capped damages at 3404,52 DM plus interest. In the “Revision” (appeal on points of law) the BGH (Bundesgerichtshof – Federal Supreme Court) the decision was overturned and referred back to the higher regional court.
  • Rechtsfrage
  • Entscheidung

    The BGH in its decision referred to the requirements of the right of cancellation of the traveller due to unforeseeable acts of god (§ 651 j BGB) as well as to the travel organiser’s duty to warn.
    In the view of the court it is not unreasonable, that with a one in four possibility of a hurricane hitting the holiday destination prior to departure, a travel organiser should have made the relevant enquiries and passed on a main warning which was issued which can indicate a great danger to the travellers, so as to enable an immediate cancellation of the trip. If the travel organiser neglects to do so, then according to § 651f (1) BGB it carries the burden of establishing and proving that its conduct corresponded to the objective standard of care necessary in the circumstances;
    If one assumes, according to general life experience, that holidaymakers in a hurricane area would be exposed to considerable dangers to life and limb, then a one in four likelihood of the hurricane hitting represents a danger to the holidaymakers, which one could term a “general risk to life”. A constant abstract danger of storms in the Caribbean dependent on the time of year may be regarded as such, however not a danger already materialised in the holiday destination via a preliminary warning. In balancing the opposing interests of the contractual parties, one could simply not reasonably expect the holidaymakers to be bound by the contract, when to go through with it would be connected with a concrete danger, i.e. one not generally foreseeable at the time of conclusion of contract.
    A right of cancellation of the holidaymakers due to unforeseen acts of God according to § 651j BGB therefore also exists, when there is a considerable likelihood of occurrence of the damaging event, and not only when there is an overwhelming probability. In any event, so long as such a right of cancellation is to be affirmed, there also exists a corresponding information duty incumbent upon the travel organiser. If the travel organiser is not in the position to inform, because he has not made enquiries necessary in the circumstances, then this alone objectively constitutes a positive breach of contract.
    Exactly what level of danger would constitute a considerable probability can only be determined on a case by case basis, in the view of the BGH. What is crucial moreover is the substance of the travel contract in the individual case; thus e.g. adventure trips or expeditions in climactically peculiar areas require different benchmarks in relation to the level of risk the holidaymakers can be expected to carry as oppose to “sun, sea and sand” holidays in closed resorts.
    The further issue raised by the Revision, of whether the respondent is also responsible for a failure on the part of the flight operator as vicarious agent to duly inform of the danger, was left open by the BGH, as it was not regarded as relevant to the decision. Neither were findings made which would enable this question to be answered. Therefore, the question of preliminary reference to the ECJ did not arise for the BGH.

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