Munich Local Court, 01.12.2012, Ref.: 223 C 17592/11
Travel contract law is regulated in the German Civil Code in §§ 651a ff. § 651c BGB, on the other hand, is the central provision of travel contract warranty law.
In accordance with Section 651c BGB, the tour operator is obliged to provide the tour in such a way that it has the warranted characteristics and is not afflicted with defects that cancel or reduce the value or suitability for the usual use or the use assumed under the contract.
Guaranteed characteristics are particularly qualifying characteristics of the trip that have been agreed between the parties to the travel contract. The agreement can be made individually or become part of the travel contract through the travel brochure.
In addition to faultless accommodation and catering at the holiday destination, the tour operator's main obligations also include faultless transport to and from the holiday destination.
The following diagram illustrates the possible consequences of poor performance by the tour operator:
In the above-mentioned decision by Munich District Court, the court had to decide whether the intensive care of disabled travellers by the tour guide constituted a defect entitling the traveller to a price reduction.
Similar judgements: Regional Court Frankfurt am Main, 25 February 1980, Ref.: 24 S 282/79; Local Court Flensburg, 27 August 1992, Ref.: 63 C 265/92; Local Court Kleve, 12 March 1999, Ref.: 3 C 460/98; Local Court Bad Homburg, 12 August 199, Ref.: 2 C 2096/99
Facts: A journey with obstacles
In November 2010, a married couple went on a three-week study trip to South Africa, which cost them a total of 9,990 euros. The outbound flight was delayed by 4 hours and 45 minutes. In addition, the sanitary facilities at the hotel in Cape Town were mouldy and the coach broke down on a journey to Pretoria. The travel company paid the couple 285 euros for these inconveniences and also issued a travel voucher worth 200 euros.
Complaints from travellers
However, the couple demanded a further 714 euros in compensation. They were of the opinion that the tour guide had been very distracted due to looking after a severely disabled and almost blind fellow traveller, which had impaired the quality of the trip. The travellers argued that the travel company was responsible for only taking guests who could manage either independently or with the help of a permanent carer. The care of the disabled fellow travellers had considerably delayed the schedule of the study trip at several points in the programme.
Decision of the Munich Local Court
The Munich Local Court dismissed the claim and did not follow the plaintiff's opinion. It clarified that a travel defect requires a deviation between the service provided and the service owed. However, the travel company was not obliged to only take non-disabled fellow travellers on a group trip. Furthermore, it is a general risk of group travel that fellow travellers may have different needs and require more intensive care. This does not constitute a defect that justifies compensation.
Legal assessment: No entitlement to "problem-free" fellow travellers
The court further argued that the plaintiff was fortunate not to be dependent on intensive care herself. It was unacceptable to complain about the presence of disabled people who also had the right to take part in trips. The care of a disabled fellow traveller by the tour guide is part of the general risk of group travel and does not justify a claim for compensation or a reduction in the price of the trip.
ConclusionThe travellers' claim for further compensation was dismissed. The court did not consider the assistance provided to the disabled travellers by the tour guide to be a travel defect. The compensation already granted and the voucher covered the remaining inconvenience.
Source: District Court of Munich
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