German Supreme Court decides on organizer's liability for changing the departure of the return flight to an earlier time
The plaintiff's spouse had booked a one week package holiday to Turkey at EUR 369 per person for the plaintiff and himself. The return flight was scheduled to depart on June 1, 2009, 16:40 hrs. One day before, the organizer changed the departure time to 05:15 hrs and thus the plaintiff and her spouse were to be picked up at the hotel as early as 01:25 hrs. They therefore looked for an alternative return flight which they booked on their own and which departed at 14 hrs.
The plaintiff (to whom her spouse had assigned his claim) sued for reimbursment of the full package price (except EUR 70 for meals), compensation for the costs of the alternative flight and compensation for loss of holiday enjoyment.
The organizer referred to his general conditions of contract due to which
- he had reserved the right to alter the times of fligths as long as this would not affect the overall arrangement of the package;
- consumers were not allowed to assign any claims to other persons.
Both the first instance court and the appelate court only granted a small reduction of the package prize for the plaintiff herself.
Upon further appeal of the latter, the German Civil Supreme Court (BGH) held that the change of the departure time of the return flight constituted malperformance of the contract which entitled the plaintiff to claim for damages if either she had asked the organizer to provide an alternative flight before booking same on her own or such demand seamed unreasonable according to the circumstances . There was no justified interest on behalf of the organizer to interdict an assignment of such claims. However, as the change did not cause any significant detriment with regard to the holiday arrangement there was no claim for loss of holiday enjoyment.
As a result, the Supreme Court referred the matter back to the appelate court to complete the findings on a potential demand to the organizer and the actual costs of the alternative flight booked by the plaintiff.