Cologne Local Court, 18 November 2010, Ref.: 138 C 379/10
On holiday trips, inadequate hotel facilities or flight delays or cancellations are repeatedly the subject of complaints by holidaymakers against the tour operator.
The respective claims that can be asserted by the holidaymaker depend crucially on when the defects giving rise to the claim occur. Before the trip, the holidaymaker can claim cancellation of the travel contract, transfer of the contract to a third party or termination of the trip due to force majeure. During the trip, e.g. the right to cancellation of the travel contract, the right to remedy or self-help. After the trip, the traveller can assert claims for price reduction, damages or compensation for pain and suffering. Following the reform of the law on damages on 1 January 2002, the Federal Court of Justice has repeatedly strengthened the legal position of holidaymakers in numerous decisions. In particular, the protection of travellers with regard to dangers that can emanate from hotel facilities has repeatedly been the subject of decisions by the highest courts.
It should be noted that the tour operator can generally be held liable for non-compliance with the safety regulations in accordance with Section 278 BGB, as the hotelier is deemed to be a vicarious agent of the tour operator.
Accordingly, the hotelier must ensure, also under the supervision of the tour operator, that all sources of danger on the hotel premises are eliminated as far as possible and that appropriate warnings are issued.
If the hotelier or tour operator is responsible for a holidaymaker's injury, the holidaymaker can often assert claims for compensation for pain and suffering in accordance with Section 253 (2) BGB in addition to claims for a price reduction.
In the above-mentioned decision, the Cologne District Court had to decide whether a holidaymaker who was travelling in Africa and was bitten by a monkey on the hotel grounds was entitled to compensation, even though the hotel had issued the warning "Don't feed the monkeys. If you do, you'll see..." by displaying a sign.
Booking a package holiday and the incident with the monkey
The plaintiff, a holidaymaker, had booked a package holiday to the coastal city of Mombasa, which included a safari in Tsavo National Park. During his stay at the hotel complex, he was injured by an unforeseen event. The hotel complex where the plaintiff was staying was inhabited by free-roaming monkeys. A warning sign on the complex advised not to feed the animals. The sign read: "Don't feed the monkeys. If you do, you'll see...". Despite this clear warning and the obvious danger, the plaintiff decided to walk from the breakfast room to his room with a banana in his hand.
On the way there, the plaintiff was jumped on by a monkey. The monkey was obviously fixated on the banana and tried to snatch it from the plaintiff's hand. In doing so, the monkey bit the plaintiff's index finger, which resulted in significant injuries. As a result of this incident, the holidaymaker demanded compensation for pain and suffering from the tour operator. He based his claim on the fact that the hotel had not sufficiently pointed out the dangers posed by the monkeys.
The claim for compensation for pain and suffering
The plaintiff argued that the hotel had failed to fulfil its duty of safety. In his eyes, the information on the sign was not sufficient to minimise the dangers for the hotel guests. He was of the opinion that the tour operator could have defused the situation by taking further measures - such as additional signs or more information. The plaintiff claimed that insufficient precautions had been taken to protect guests from the free-roaming monkeys.
Decision of the Local Court of Cologne
However, the Cologne District Court judged the matter differently and dismissed the holidaymaker's claim. The court was of the opinion that the plaintiff had been sufficiently informed about the potential dangers. It was common knowledge that free-roaming monkeys are attracted to food, especially in tourist regions. The sign with the warning "Don't feed the monkeys" was unambiguous and should have warned the plaintiff that the animals could be in the vicinity of people and would try to get to food.
Duty of personal responsibility
In addition, the court pointed out that the plaintiff had already been advised by the tour guide at an information event to keep the doors and windows in his room closed to prevent the monkeys from gaining access. This information should have made it clear to the plaintiff that the animals were not afraid of humans and could even enter the rooms to look for food. Even without a specific warning about bananas or an explicit reference to aggressive monkeys, it was obvious that carrying food could create a dangerous situation.
Conclusion of the court
The court came to the conclusion that the plaintiff had been sufficiently informed about the risk. The responsibility for carrying a banana openly across the hotel grounds therefore lay with the plaintiff himself. The Cologne District Court therefore ruled that the plaintiff was not entitled to compensation for pain and suffering as the tour operator had fulfilled its obligations and informed the plaintiff of the risks.
Source: Cologne Local Court
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