Federal Court of Justice

Communication of the press office


No. 90/2018

Federal Court of Justice to the allowance to the airline enterprise because of missing visa of imposed penalty

Judgment from the 15th of May, 2018 – X ZR 79/17

The plaintive airline enterprise takes up accused air passenger on allowance of a penalty covered by the Indian authorities.

Circumstances:

The defendant booked in spring, 2015 about the Internet site of the plaintiff a flight to India. Because he did not dispose with his arrival in India of the visa necessary for the entry, the Indian authorities against the plaintiff covered a penalty at the rate of 100,000 Rupien (at the payment time converted about 1.415€). For this she asks of the accused substitute.

Present process course:

The district court has condemned the defendant to the payment and has rejected the complaint only because of an in addition sued treatment remuneration of 50€ together with interest. The appeal of the defendant has had no success.

Decision of the Federal Court of Justice:

The Federal Court of Justice has lifted the appeal judgment and has referred back the thing to new negotiations and decision to the court of appeal.

After the judgment for pilgrim-really responsible X civil senate the court of appeal has rightly assumed from the fact that the defendants the contractual accessory obligation has hit, the flight not without for an entry to India to necessary documents to line up in particular not without necessary visa.

Indeed, the court of appeal has accepted without foundation, a cofault of the plaintiff with the origin of the damage is not considered because this has not been obliged towards the defendant to the control of his entry documents. The acceptance of a cofault ( §254 Civil Code) assumes no legal duty injury. Rather an added co-operation is enough with the damage origin in the form of an offence against orders of own interest perception. Such a cocausing is considered in the dispute. The Indian authorities have imposed the penalty on the plaintiff because this had offended against her own juridical obligation to carry no air passenger without for an entry to India necessary visa. The plaintiff was held before this background in own interest to check before the takeoff in suitable manner whether the defendant is in the possession of the necessary documents. The cofault objection is not excluded by her terms of transport which return only the duty of the air passenger to the coguidance of the necessary travel documents. Because the court of appeal has up to now met no statements to kind and gravity of the mutual cause contributions, the thing is not ripe for the final decision.

Preauthorities:

AG Hannover – judgment from the 16th of August, 2016 – 542 C in 2724/16

LG Hannover – judgment from the 20th of July, 2017 – 8 p. 71/16

The decisive regulations are:

§280 CIVIL CODE

(1) If The debtor 1injures a duty from the obligation, the religious substitute of the damage originating through this can ask. (…)

§254 CIVIL CODE

(1) If a fault of the damaged has helped in the origin of the damage, the obligation depends to the substitute as well as the extent of the compensation to be paid on the circumstances, in particular of it, to what extent the damage has been caused mainly from one or the other part.

(2) 1this is also valid if the fault of the damaged limits itself to the fact that he has omitted to draw the attention of the debtor to the danger of an unusually high damage which the debtor neither knew nor had to know, or that he has omitted to turn away the damage or to diminish. Suitable use finds 2 The regulation §278.

Karlsruhe, 15th of May, 2018

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