COURT DECISIONS
"Rail & Fly"
BGH Xa ZR 46/10 (dated Oct. 28th, 2010)
on extending the liability of
the tour operator onto services provided by a third party,
in this case rail transportation as the subject of a so-called "rail & fly" arrangement
publicized:
BGH Xa ZR 46/10 (official BGH-website)
RRa 2011, 20ff
NJW 2011, 371ff
Own summary & comment:
If the tour operator offers services as part of the journey in his catalogs, he is liable for flawless execution of these services even if they are actually provided by third parties. If – within a package tour - the hotel room is a mess or if the flight is delayed or cancelled, it is a liability problem for the tour operator and not a problem born by the traveller.
No surprises there, this liability rule within travel law is unquestioned and seems natural.
In the case at hand, it was applied to a package travel that included rail transportation to the departure airport. When the train was late, the travelers (plaintiff and her partner) missed their flight and consequently had to use a different flight the next day from a different departure airport far away (Munich instead of Duesseldorf, over 600km away). Therefore they had to get to that other departure airport, stay for the night in a hotel there, had to arrange for their food, and ultimately had to travel cross-country from the wrong destination airport to their final destination hotel.
Obviously, a simple application of the legal rule that the tour operator (defendant) is liable for the services he has to provide as part of the travel contract leads to the inevitable result that the tour operator is liable for the delay and subsequently has to compensate the travellers for their expenses; mind you, all three courts along the channel of appeal reached that same obvious result.
Remember what we learned in the chapter on service suppliers as assistants used by the obligor to perform the duties he is obliged to by the contract: If a tour operator lists these travel services within the description of the travel package, and if the price for these travel services is included in the overall travel price, then such travel services are part of the services obliged by the tour operator via the travel contract, and the latter carries full liability for these.
Even if a third-party travel service is later offered on-scene at the destination - for example a jeep excursion, a snorkel tour or a scuba diving course -, the tour operator must be careful to disassociate himself from that service if he doesn’t wish to have these activities added to the travel contract that he is liable for in case of a fault.
To avoid being associated with these external activities he must ensure that it is unquestionably obvious to the traveler that it is not a service of the tour operator or one that the tour operator is liable for, but rather only the independent third party providing that service.
Such activities are usually announced by the tour operator's own travel guides on scene at the hotel, which is dangerous because this per se leads to an association of these activities with the tour operator by default.
The tour operator should therefore be even more aware that:
-the third party providing the service should be named as such in full, in this context an additional corresponding note clarifying that the tour operator is not responsible for that service is helpful,
-the equipment used for that external activity/service shouldn’t bear the tour operator's logo,
-the information leaflets should not carry the letterhead or logo of the tour operator, and
-the price should not be paid to the tour operator's own travel guides but preferably directly to the third party providing that activity/service.
In the case at hand, the arrival at the departure airport via rail transportation with a train ticket included in the overall travel price and offered as part of the travel description makes that rail transportation part of the travel contract and the tour operator liable for any faults of that service. In this case the train company Deutsche Bahn is merely a service supplier to the tour operator, helping the latter to fulfill his contractual obligation of providing rail transportation to the traveller.
The decision is less of a legal enlightenment or milestone in the development of German travel law since it is simply a consequent application of a common-sense legal rule established long ago.
It is the more amazing how the tour operator acted in this case. Two things are amazing here, in my opinion.
A, first of all, after all the hardships endured by the travellers the tour operator not so much as asked the travellers for forgiveness or symbolically reimbursed them on the scene with some extra dinner or trip (the usual cheap yet proven effective way of compensating and cheering up disgruntled traveller), but had the chutzpa to CHARGE the poor victims for the detour odyssey they had to undergo as if it were some extra value service provided by the tour operator.
B, one cannot help but wonder at the "quality" of the legal counsel the tour operator "enjoyed". Not only was the resulting judgement inevitable and the die-hard stubborn appeal through all stages completely pointless (not to mention the fact of not solving the whole issue pre-trial out-of-court in the first place), the whole affair is also a public relations disaster of the first order. The defendant as one of Europe's large travel corporations has shown itself to be non-generous, small-minded and pugnacious, and the fact that within rail&fly arrangements you can hold your tour operator liable for problems arising out of delays of the rail transportation to the flight, probably unknown to the public at large, is now reliable public knowledge for all future travelers.
The decision:
Headnote
Liability of a tour operator for service suppliers depends on wether the tour operator offers such third-party travel service as his own; this also applies to a combined offer of travel packages and rail transport to the airport.
Situation
The plaintiff seeks reimbursement from the defending tour operator for costs of a modified journey to the travel destination that arose due to a missed flight. The plaintiff and her partner had booked an all-inclusive package travel to the Dominican Republic, including flight from Duesseldorf (FRG) airport to Samana (DR) and back. Departure was supposed to be from Duesseldorf airport at 1115 hours June 19th 2007. The plaintiff and her partner used rail transportation to get to the departure airport in Germany, using a "Rail & Fly" ticket for transport with the Deutsche Bahn (German Rail).
The tour operator's catalog which served as the basis for the travel contract includes the following text on the topic of "your departure - the Smart Way to get to the Airport / bus- and rail ticket included".
"Have a relaxing start to your holidays with our convenient departure service (...) already included in the price of the package travel. No troubles and no traffic jam with the "M-Rail & Fly Ticket". Any flight booked from this catalog has an "M-Rail & Fly & Ticket" already included in its price! Please choose your rail connection such that you will reach the departure airport at least two hours before departure. (...)"
prior to the start of the journey the plaintiff and her partner together with their Rail & Fly tickets received an information leaflet of the defendant titled "interesting facts regarding the Smart Way to get to the Airport". The information given in that leaflet essentially resembled that given in the catalog. The plaintiff and her partner chose a rail connection taking them from Cologne to the airport Duesseldorf where they were scheduled to arrive at 0908 hours. Due to a delay of their train they actually arrived at 1145 hours and missed their flight. Their flight tickets were transferred onto a flight leaving the next day from the airport Munich (FRG) to Punta Cana (DR). Hence they travelled to Munich by rail on the same day, passed the night in a hotel there and took the flight from Munich to Punta Cana as planned on June 20th 2007. From Punta Cana (DR) they travelled by bus and ferry to Samana (DR). Due to the change in the journey to their destination the defendant recalculated the price for the travel anew and charged the credit card of the plaintiff with additional costs to the amount of 1030 EUR.
The plaintiff seeks repayment of these additional costs plus reimbursement for his own expenses for overnight stay, taxi fares and food to the amount of 218 EUR. He furthermore seeks reimbursement for the lawyer fees pre-trial to the amount of 186,24 EUR.
The district court had ruled largely in favor of the plaintiff. The appeal of the defendant to the regional court was rejected. The further appeal based on legal points did not succeed.
Excerpts from the court's legal reasoning
(...)
(9) The plaintiff has a right based on § 812 I 1 BGB to repayment of the 1030 EUR that were charged to the credit card of the plaintiff by the defendant for additional costs of the modified journey to the destination. The transferral of the plaintiff and her partner onto another flight is an action of relief in the sense of § 651c II 1 BGB, the respective costs are borne by the defendant. For the journey was faulty in the sense of § 651c I BGB due to the delay of the transport by train and the subsequent missing of the flight; for this fault the defendant owes relief.
(10) The court of appeal was correct to assess the question whether the transport by train is part of the contractual obligation of the package travel based on the specific circumstances of the concrete case at hand. Contrary to the opinion voiced in the defendants further appeal it is not possible to generally rule out as such the inclusion of the travel to the departure airport into the services owed due to the contract. there is neither an empirical theorem nor a legal rule of interpretation to this effect
(11) Past judicature of the high court of justice has acknowledged that travel companies can act as travel agencies brokering third party services in one regard, and as tour operators carrying out the travel services under own responsibility. In the latter case too they may employ a third party service provider to do so. Liability for faults of the trip depends on this characterization of the travel company acting as a broker or a tour operator. If it is a service provided by a tour operator offering a package travel, then he carries the liability for faults of the travel, which includes the liability obligation to provide relief according to § 651c BGB. If however he merely brokers a contract of the traveler with a foreign third party, then the travel companies contractual obligation is fulfilled with brokering that additional service. He is not responsible for the actual carrying out of that travel service. The character of the travel company's action critically depends upon how it approaches and deals with the traveler, especially upon how the travel company behaves as seen from the perspective of the traveler. If the behavior of the tour operator leads the traveller to believe that the specific travel service is carried out within the organization and responsibility of the tour operator and that the traveler in the case of faults of the service would have to deal with the tour operator exclusively, then the latter is seen as party to a contract for that service.
(12) Whether or not a tour operator with all his behavior has given reason to the appearance that he is providing a service as his own is to be judged upon the circumstances of the specific case at hand. That decision is made by the trial judge. The court of further appeal based on legal points can only examine whether the case at hand has been evaluated comprehensively, consistently and without breaking any rules of logic or empirical theorems. General Terms of Service however are to be interpreted by the court of further appeal itself.
(13) The appellate court's assessment of all circumstances and its reasoning are correct that from the perspective of an average customer based on the documents provided by the defendant one gets the impression that the defendant offered a rail transportation via a rail&fly ticket as its own travel service.
(14) For the decision on whether the rail transportation was part of the package travel contract concluded by the parties the appellate court was correct to assess not only the booking confirmation (letter confirming the booking/travel) but also the catalog's text and the information leaflet provided with the rail&fly ticket. According to past judicature of the High Court the tour operator is not only obliged carry out the transportation, accommodation and additional travel services mentioned in the travel confirmation letter; rather the package travel contract encompasses the whole travel as such. Therefore, all services offered by the tour operator according to a pre-arranged and advertised itinerary/travel program are subject matter of the package travel contract. In the case of package travel the scale of the tour operator's contractual obligation is to be determined using the travel confirmation as well as the issued travel brochure containing detailed data on the organization of the itinerary/travel and the services of the tour operator. Such travel brochures as General Terms of Service form the basis for the contract. The appellate objection to the effect that the rail transport could not be part of the travel package contract of the parties because it was not mentioned at all in the travel confirmation and was not mentioned in the tour operator's catalog description of the specific travel but apart from that in a separate rubric, therefore fails.
(15) The appellate court was correct to value the fact that the rail&fly ticket was presented as part of the overall price of the travel as an indication that the defendant offered such rail transportation to the airport as its own travel service as part of its package travel.
(16) The catalog of the defendant forming the basis of the plaintiff's booking as well as the information leaflet sent prior to the start of the journey both contained the information that the price for the package travel included an "M-Rail & Fly Ticket" transportation service by the defendant in the form of a economy class ticket of the Deutsche Bahn. Based on that the traveler not only doesn't expect that service and its price to be listed separately on the travel confirmation, rather he would view such a separate listing as a contradiction to the information given by the catalog.
(17) The appellate court was also correct in its assessment of the designation of the rail&fly ticket in the documents of the defendant.
(…)
(note: The service was advertised throughout the tour operators documents as "M-Rail & Fly" where M. was the name of the tour operator? The appellate court took this as additional circumstantial evidence that the tour operator is responsible for this travel service. The appealing defendant's objection to this assessment was dismissed)
(20) The appellate court was furthermore correct in its assessment that the tour operator's remark that this ticket would provide for a relaxed start into the holidays evokes the impression that this rail transportation is offered as the tour operator's own service. Indeed the defendants further appeal is correct to point out in this connection that – unlike one could gather from the wording of the appeal judgement - a separate booking of the Rail & Fly ticket is not necessary but rather said ticket is included in the price of the journey regardless whether the traveler actually uses rail transport. However the appellate court has not based its assessment on the necessity of a separate booking but rather on the fact that the defendant pointed out the advantages of a travel service offered under his own company name.
(21) Furthermore the appellate court was without fault in its legal reasoning when it assumed that the fact that the selection of the rail connection to the airport was left to the traveler does not oppose the assumption that the defendant would be liable for any faults of the transport that is conducted by the Deutsche Bahn AG under the latter's own responsibility.
(22) In this regard the further appeal complains that the appellate court has violated the principle of an impartial interpretation that meets the interests of both parties. (The further appeal claims that) if – as is the case at hand – the organizing of the arrival at the departure airport is up to the traveler then there is no room for the assumption that the tour operator wants to take the responsibility for the arrival by train and wants to be liable for any possible delays. (According to the further appeal,) the tour operator is able to control the involved risk he takes upon himself only if he is left with the organizing, especially the choice of the rail connection.
(23) That objection (of the further appeal) also fails. The defendant refers to his service of a convenient way to arrive at the departure airport both in its catalog as well as the information leaflet covering the Rail & Fly ticket, and gives detailed advice for selecting the right rail connection. Taking this into account, there is no fault to be found with the appellate court arriving at the conclusion, that all circumstances and especially the reference to the advantages of the rail transport when compared to an arrival by car for an average customer point to the fact that if that rail connection was chosen thoughtfully and correctly then the defendant will take responsibility for any delays nevertheless taking place and originally falling under the responsibility of the rail carrier Deutsche Bahn AG. Even if the selection of the concrete rail connection would be left with the defendant the latter could do no more than choosing a "timely" train. He would have no say or influence over cancelations on the part of the Deutsche Bahn AG due to operational faults or accidents and therefore could not control that organizational risk he took upon himself. In so far this constellation resembles that of the transportation by flight that is offered as part of a package travel.
(24) The further appeal is also unsuccessful with its claim that it would be unrealistic to assume that the defendant wants to guarantee and be liable for the timeliness of all trains of the Deutsche Bahn AG and all the other transportation organizations mentioned in the catalog and the information leaflet. The liability of a tour operator for his service suppliers does not depend upon his intention to be liable for them, but merely upon the question of whether he offers a service actually provided by a third party as his own. This is to be taken into account when interpreting the travel contract. Indeed when interpreting the travel contract the ability of the tour operator to control the actual activity of the service provider can be a relevant fact. But this is not the sole decisive aspect, but rather to be included into the due consideration of all circumstances relevant for the interpretation. For the constellation in question in the case at hand the appellate court has concluded using the entirety of all relevant circumstances, that the defendant has offered the rail transportation to the departure airport as its own service despite the liability risks involved. The court of further appeal agrees with that conclusion based on the reasoning given above.
(25) Lastly the further appeal fails with its assertion that according to the catalog text only the respective train ticket is included in the travel price, but not the journey to the departure airport as such. Because the defendant has explicitly called his offer a "convenient service by M to arrive at the departure airport" (nba: M is the name of the tour operator) and has also advertised in its information leaflet with the note "Includes convenient way to get to the airport!". This wording gives the average customer the impression, that the defendant would handle any complaints and especially any additional costs arising to the traveler as a consequence of an untimeliness of that rail transportation.
(26) The appellate court was also correct in its assumption that the plaintiff has a right to reimbursement for his additional expenses for the overnight stay, meals and taxi transport which resulted out of the defendant's offer of a transfer of the original flight onto another flight from a different departure airport. Because the rail transportation via Rail & Fly ticket was part of the contractual obligations, the defendant is obliged to reimbursement for any expenses for means of the relief owed by the defendant according to § 651c III BGB.
(...)
in this case rail transportation as the subject of a so-called "rail & fly" arrangement
publicized:
BGH Xa ZR 46/10 (official BGH-website)
RRa 2011, 20ff
NJW 2011, 371ff
Own summary & comment:
If the tour operator offers services as part of the journey in his catalogs, he is liable for flawless execution of these services even if they are actually provided by third parties. If – within a package tour - the hotel room is a mess or if the flight is delayed or cancelled, it is a liability problem for the tour operator and not a problem born by the traveller.
No surprises there, this liability rule within travel law is unquestioned and seems natural.
In the case at hand, it was applied to a package travel that included rail transportation to the departure airport. When the train was late, the travelers (plaintiff and her partner) missed their flight and consequently had to use a different flight the next day from a different departure airport far away (Munich instead of Duesseldorf, over 600km away). Therefore they had to get to that other departure airport, stay for the night in a hotel there, had to arrange for their food, and ultimately had to travel cross-country from the wrong destination airport to their final destination hotel.
Obviously, a simple application of the legal rule that the tour operator (defendant) is liable for the services he has to provide as part of the travel contract leads to the inevitable result that the tour operator is liable for the delay and subsequently has to compensate the travellers for their expenses; mind you, all three courts along the channel of appeal reached that same obvious result.
Remember what we learned in the chapter on service suppliers as assistants used by the obligor to perform the duties he is obliged to by the contract: If a tour operator lists these travel services within the description of the travel package, and if the price for these travel services is included in the overall travel price, then such travel services are part of the services obliged by the tour operator via the travel contract, and the latter carries full liability for these.
Even if a third-party travel service is later offered on-scene at the destination - for example a jeep excursion, a snorkel tour or a scuba diving course -, the tour operator must be careful to disassociate himself from that service if he doesn’t wish to have these activities added to the travel contract that he is liable for in case of a fault.
To avoid being associated with these external activities he must ensure that it is unquestionably obvious to the traveler that it is not a service of the tour operator or one that the tour operator is liable for, but rather only the independent third party providing that service.
Such activities are usually announced by the tour operator's own travel guides on scene at the hotel, which is dangerous because this per se leads to an association of these activities with the tour operator by default.
The tour operator should therefore be even more aware that:
-the third party providing the service should be named as such in full, in this context an additional corresponding note clarifying that the tour operator is not responsible for that service is helpful,
-the equipment used for that external activity/service shouldn’t bear the tour operator's logo,
-the information leaflets should not carry the letterhead or logo of the tour operator, and
-the price should not be paid to the tour operator's own travel guides but preferably directly to the third party providing that activity/service.
In the case at hand, the arrival at the departure airport via rail transportation with a train ticket included in the overall travel price and offered as part of the travel description makes that rail transportation part of the travel contract and the tour operator liable for any faults of that service. In this case the train company Deutsche Bahn is merely a service supplier to the tour operator, helping the latter to fulfill his contractual obligation of providing rail transportation to the traveller.
The decision is less of a legal enlightenment or milestone in the development of German travel law since it is simply a consequent application of a common-sense legal rule established long ago.
It is the more amazing how the tour operator acted in this case. Two things are amazing here, in my opinion.
A, first of all, after all the hardships endured by the travellers the tour operator not so much as asked the travellers for forgiveness or symbolically reimbursed them on the scene with some extra dinner or trip (the usual cheap yet proven effective way of compensating and cheering up disgruntled traveller), but had the chutzpa to CHARGE the poor victims for the detour odyssey they had to undergo as if it were some extra value service provided by the tour operator.
B, one cannot help but wonder at the "quality" of the legal counsel the tour operator "enjoyed". Not only was the resulting judgement inevitable and the die-hard stubborn appeal through all stages completely pointless (not to mention the fact of not solving the whole issue pre-trial out-of-court in the first place), the whole affair is also a public relations disaster of the first order. The defendant as one of Europe's large travel corporations has shown itself to be non-generous, small-minded and pugnacious, and the fact that within rail&fly arrangements you can hold your tour operator liable for problems arising out of delays of the rail transportation to the flight, probably unknown to the public at large, is now reliable public knowledge for all future travelers.
The decision:
Headnote
Liability of a tour operator for service suppliers depends on wether the tour operator offers such third-party travel service as his own; this also applies to a combined offer of travel packages and rail transport to the airport.
Situation
The plaintiff seeks reimbursement from the defending tour operator for costs of a modified journey to the travel destination that arose due to a missed flight. The plaintiff and her partner had booked an all-inclusive package travel to the Dominican Republic, including flight from Duesseldorf (FRG) airport to Samana (DR) and back. Departure was supposed to be from Duesseldorf airport at 1115 hours June 19th 2007. The plaintiff and her partner used rail transportation to get to the departure airport in Germany, using a "Rail & Fly" ticket for transport with the Deutsche Bahn (German Rail).
The tour operator's catalog which served as the basis for the travel contract includes the following text on the topic of "your departure - the Smart Way to get to the Airport / bus- and rail ticket included".
"Have a relaxing start to your holidays with our convenient departure service (...) already included in the price of the package travel. No troubles and no traffic jam with the "M-Rail & Fly Ticket". Any flight booked from this catalog has an "M-Rail & Fly & Ticket" already included in its price! Please choose your rail connection such that you will reach the departure airport at least two hours before departure. (...)"
prior to the start of the journey the plaintiff and her partner together with their Rail & Fly tickets received an information leaflet of the defendant titled "interesting facts regarding the Smart Way to get to the Airport". The information given in that leaflet essentially resembled that given in the catalog. The plaintiff and her partner chose a rail connection taking them from Cologne to the airport Duesseldorf where they were scheduled to arrive at 0908 hours. Due to a delay of their train they actually arrived at 1145 hours and missed their flight. Their flight tickets were transferred onto a flight leaving the next day from the airport Munich (FRG) to Punta Cana (DR). Hence they travelled to Munich by rail on the same day, passed the night in a hotel there and took the flight from Munich to Punta Cana as planned on June 20th 2007. From Punta Cana (DR) they travelled by bus and ferry to Samana (DR). Due to the change in the journey to their destination the defendant recalculated the price for the travel anew and charged the credit card of the plaintiff with additional costs to the amount of 1030 EUR.
The plaintiff seeks repayment of these additional costs plus reimbursement for his own expenses for overnight stay, taxi fares and food to the amount of 218 EUR. He furthermore seeks reimbursement for the lawyer fees pre-trial to the amount of 186,24 EUR.
The district court had ruled largely in favor of the plaintiff. The appeal of the defendant to the regional court was rejected. The further appeal based on legal points did not succeed.
Excerpts from the court's legal reasoning
(...)
(9) The plaintiff has a right based on § 812 I 1 BGB to repayment of the 1030 EUR that were charged to the credit card of the plaintiff by the defendant for additional costs of the modified journey to the destination. The transferral of the plaintiff and her partner onto another flight is an action of relief in the sense of § 651c II 1 BGB, the respective costs are borne by the defendant. For the journey was faulty in the sense of § 651c I BGB due to the delay of the transport by train and the subsequent missing of the flight; for this fault the defendant owes relief.
(10) The court of appeal was correct to assess the question whether the transport by train is part of the contractual obligation of the package travel based on the specific circumstances of the concrete case at hand. Contrary to the opinion voiced in the defendants further appeal it is not possible to generally rule out as such the inclusion of the travel to the departure airport into the services owed due to the contract. there is neither an empirical theorem nor a legal rule of interpretation to this effect
(11) Past judicature of the high court of justice has acknowledged that travel companies can act as travel agencies brokering third party services in one regard, and as tour operators carrying out the travel services under own responsibility. In the latter case too they may employ a third party service provider to do so. Liability for faults of the trip depends on this characterization of the travel company acting as a broker or a tour operator. If it is a service provided by a tour operator offering a package travel, then he carries the liability for faults of the travel, which includes the liability obligation to provide relief according to § 651c BGB. If however he merely brokers a contract of the traveler with a foreign third party, then the travel companies contractual obligation is fulfilled with brokering that additional service. He is not responsible for the actual carrying out of that travel service. The character of the travel company's action critically depends upon how it approaches and deals with the traveler, especially upon how the travel company behaves as seen from the perspective of the traveler. If the behavior of the tour operator leads the traveller to believe that the specific travel service is carried out within the organization and responsibility of the tour operator and that the traveler in the case of faults of the service would have to deal with the tour operator exclusively, then the latter is seen as party to a contract for that service.
(12) Whether or not a tour operator with all his behavior has given reason to the appearance that he is providing a service as his own is to be judged upon the circumstances of the specific case at hand. That decision is made by the trial judge. The court of further appeal based on legal points can only examine whether the case at hand has been evaluated comprehensively, consistently and without breaking any rules of logic or empirical theorems. General Terms of Service however are to be interpreted by the court of further appeal itself.
(13) The appellate court's assessment of all circumstances and its reasoning are correct that from the perspective of an average customer based on the documents provided by the defendant one gets the impression that the defendant offered a rail transportation via a rail&fly ticket as its own travel service.
(14) For the decision on whether the rail transportation was part of the package travel contract concluded by the parties the appellate court was correct to assess not only the booking confirmation (letter confirming the booking/travel) but also the catalog's text and the information leaflet provided with the rail&fly ticket. According to past judicature of the High Court the tour operator is not only obliged carry out the transportation, accommodation and additional travel services mentioned in the travel confirmation letter; rather the package travel contract encompasses the whole travel as such. Therefore, all services offered by the tour operator according to a pre-arranged and advertised itinerary/travel program are subject matter of the package travel contract. In the case of package travel the scale of the tour operator's contractual obligation is to be determined using the travel confirmation as well as the issued travel brochure containing detailed data on the organization of the itinerary/travel and the services of the tour operator. Such travel brochures as General Terms of Service form the basis for the contract. The appellate objection to the effect that the rail transport could not be part of the travel package contract of the parties because it was not mentioned at all in the travel confirmation and was not mentioned in the tour operator's catalog description of the specific travel but apart from that in a separate rubric, therefore fails.
(15) The appellate court was correct to value the fact that the rail&fly ticket was presented as part of the overall price of the travel as an indication that the defendant offered such rail transportation to the airport as its own travel service as part of its package travel.
(16) The catalog of the defendant forming the basis of the plaintiff's booking as well as the information leaflet sent prior to the start of the journey both contained the information that the price for the package travel included an "M-Rail & Fly Ticket" transportation service by the defendant in the form of a economy class ticket of the Deutsche Bahn. Based on that the traveler not only doesn't expect that service and its price to be listed separately on the travel confirmation, rather he would view such a separate listing as a contradiction to the information given by the catalog.
(17) The appellate court was also correct in its assessment of the designation of the rail&fly ticket in the documents of the defendant.
(…)
(note: The service was advertised throughout the tour operators documents as "M-Rail & Fly" where M. was the name of the tour operator? The appellate court took this as additional circumstantial evidence that the tour operator is responsible for this travel service. The appealing defendant's objection to this assessment was dismissed)
(20) The appellate court was furthermore correct in its assessment that the tour operator's remark that this ticket would provide for a relaxed start into the holidays evokes the impression that this rail transportation is offered as the tour operator's own service. Indeed the defendants further appeal is correct to point out in this connection that – unlike one could gather from the wording of the appeal judgement - a separate booking of the Rail & Fly ticket is not necessary but rather said ticket is included in the price of the journey regardless whether the traveler actually uses rail transport. However the appellate court has not based its assessment on the necessity of a separate booking but rather on the fact that the defendant pointed out the advantages of a travel service offered under his own company name.
(21) Furthermore the appellate court was without fault in its legal reasoning when it assumed that the fact that the selection of the rail connection to the airport was left to the traveler does not oppose the assumption that the defendant would be liable for any faults of the transport that is conducted by the Deutsche Bahn AG under the latter's own responsibility.
(22) In this regard the further appeal complains that the appellate court has violated the principle of an impartial interpretation that meets the interests of both parties. (The further appeal claims that) if – as is the case at hand – the organizing of the arrival at the departure airport is up to the traveler then there is no room for the assumption that the tour operator wants to take the responsibility for the arrival by train and wants to be liable for any possible delays. (According to the further appeal,) the tour operator is able to control the involved risk he takes upon himself only if he is left with the organizing, especially the choice of the rail connection.
(23) That objection (of the further appeal) also fails. The defendant refers to his service of a convenient way to arrive at the departure airport both in its catalog as well as the information leaflet covering the Rail & Fly ticket, and gives detailed advice for selecting the right rail connection. Taking this into account, there is no fault to be found with the appellate court arriving at the conclusion, that all circumstances and especially the reference to the advantages of the rail transport when compared to an arrival by car for an average customer point to the fact that if that rail connection was chosen thoughtfully and correctly then the defendant will take responsibility for any delays nevertheless taking place and originally falling under the responsibility of the rail carrier Deutsche Bahn AG. Even if the selection of the concrete rail connection would be left with the defendant the latter could do no more than choosing a "timely" train. He would have no say or influence over cancelations on the part of the Deutsche Bahn AG due to operational faults or accidents and therefore could not control that organizational risk he took upon himself. In so far this constellation resembles that of the transportation by flight that is offered as part of a package travel.
(24) The further appeal is also unsuccessful with its claim that it would be unrealistic to assume that the defendant wants to guarantee and be liable for the timeliness of all trains of the Deutsche Bahn AG and all the other transportation organizations mentioned in the catalog and the information leaflet. The liability of a tour operator for his service suppliers does not depend upon his intention to be liable for them, but merely upon the question of whether he offers a service actually provided by a third party as his own. This is to be taken into account when interpreting the travel contract. Indeed when interpreting the travel contract the ability of the tour operator to control the actual activity of the service provider can be a relevant fact. But this is not the sole decisive aspect, but rather to be included into the due consideration of all circumstances relevant for the interpretation. For the constellation in question in the case at hand the appellate court has concluded using the entirety of all relevant circumstances, that the defendant has offered the rail transportation to the departure airport as its own service despite the liability risks involved. The court of further appeal agrees with that conclusion based on the reasoning given above.
(25) Lastly the further appeal fails with its assertion that according to the catalog text only the respective train ticket is included in the travel price, but not the journey to the departure airport as such. Because the defendant has explicitly called his offer a "convenient service by M to arrive at the departure airport" (nba: M is the name of the tour operator) and has also advertised in its information leaflet with the note "Includes convenient way to get to the airport!". This wording gives the average customer the impression, that the defendant would handle any complaints and especially any additional costs arising to the traveler as a consequence of an untimeliness of that rail transportation.
(26) The appellate court was also correct in its assumption that the plaintiff has a right to reimbursement for his additional expenses for the overnight stay, meals and taxi transport which resulted out of the defendant's offer of a transfer of the original flight onto another flight from a different departure airport. Because the rail transportation via Rail & Fly ticket was part of the contractual obligations, the defendant is obliged to reimbursement for any expenses for means of the relief owed by the defendant according to § 651c III BGB.
(...)
© M. Hofbauer 2010; 2011(V1.08d) Impressum