Austria: tricky copyright traps in hotel advertising
The plaintiff, a painter, had made a sales exhibition of her paintings in the premises of the defendant hotel company. After the exhibition, the paintings (none of which had been sold) remained in the hotel for some time for a monthly fee to be paid by the defendant. During the exhibition, pictures of the hotel were taken which the defendant then used on its website. On one of these pictures, the plaintiff's painting "Mozart Symponie No 41" could be seen hanging on a wall in the background. By clicking on the picture it could be enlarged and then, when printed out in A4 format, showed the painting in a size of 11x12 cm. The defendant had not asked for the plaintiff's permission to publish the picture on the website. The plaintiff filed a motion for an injunction.
In its decision of August 9, 2011, the Austrian Civil Supreme Court (OGH) upheld the lower courts' judgments dismissing the claim.
The Supreme Court held that making the picture available on the website constituted a copy of the painting shown in the picture as the enlargement gave a sufficient impression of the main characteristics of the original painting. However, the plaintiff had been aware that pictures for advertising purposes were taken of the hotel during the exhibition. As she had not objected the taking of these pictures, the defendant could have relied on her implicit consent to make these pictures availble on the website. Taking into account, that the picture had been removed from the website as soon as the lawsuit had been served to the defendant, the claim had to be dismissed.
Full text of OGH decision 4 Ob 101/11y of August 9, 2011 available in German here>>.
Austria: tour organiser not liable for costs of extended stay caused by flight cancellation due to the ash cloud crisis
The plaintiff had booked a holiday package and spent her vacations in Gran Canaria in April 2010. Her return flight scheduled for April 17, 2010 had been cancelled because of the air space closures caused by the 'ash cloud'. Thus she had to stay in Gran Canaria until April 23, 2010 and bear the extra costs of this extend stay (mainly: hotel and telephone costs). Back home she sued the tour organiser for compensation. The appelate court (LG Innsbruck), however, dismissed the claim against the tour organiser. Other than th first instance court, the appelate court followed the arguments of the tour orgnaiser and held that pursuant to Reg. 261/2004/EC it had been the operating carrier's responsibility to provide free hotel accomodation and telephone calls. Any action for compensation with regard to a failure to comply with these obligations could therefore only be brought against the operating carrier while the tour organiser had had no obligation to provide these services and had not been at fault with regard to the cancellation.
Case: LG Innsbruck 6.12.2011, 1 R 158/11h
Austrian Supreme Court: no liability of the tour operator for rare injury caused by narrow seating in a coach
The plaintiff who had booked a coach tour package with the defendant tour operator sued for EUR 8.000 compensation for pain and suffering. He claimed that because of the narrow seating in the coach used by the defendant, as of the fourth day of the trip he had suffered pain from a lesion of the nerves in his left leg.
The Supreme Court upheld the appelate court's decision to dismiss the claim: due to the evidence produced and the lower courts' factual findings, the injury was of a very rare kind and thus had not been foreseeable for the defandant. As any liability for negligence would only cover damages which had been foreseeable for the injuring party, the appelate court had correctly decided to dismiss the claim.
Full text of judgement 3 Ob 138/11g of Oct. 12, 2011 available in German here>>.
Austria: Supreme Court decides on innkeeper's liability with regard to theft from hotel garage
As a hotel guest, the plaintiff - a professional photographer - had parked his car in the hotel garage. Several signs in the garage were saying
"The hotel does not accept any liablity with regard to cars parked here nor with regard to their content. Please deposit your valuables at the hotel reception".
However, when the plaintiff told the receptionist that he had left his precious phtographic equipment in the car, she assured him that the garage was safe and monitored by video. The next day, the plaintiff found his car unlocked and empty. He sued the hotel company for compensation of his loss.
The defendant argued that the photographic equipment had not been "brought in" to the hotel in the meaning of sec 970 Austrian Civil Code (ABGB) - which provides for liability of the inkeeper regarding any items "brought in" by a guest - because against the advice on the signs the equipment had not been deposited at the reception.
The Supreme Court (OGH) upheld the lower instances' decisions that though in principle the signs placed in the garage could have excluded the hotel company's innkeeper liability, by the advice to the contrary given by the receptionist, the hotel company had retracted any exclusion of liability which thus had become invalid. The fact that the plaintiff had not told the receptionist any details about the equipment but just mentioned that it was "precious" would not constitute contributory negligence on his part.
Full text of judgement 2 Ob 220/10g of Nov. 29, 2011 available in German here>>.
Austria: new reference for ECJ preliminary ruling regarding rail passenger rights
On Sep. 8, 2011 the Austrian Adminstrative Court (VwGH) has filed a reference for preliminary ruling of the Court of the European Union with regard to Reg. (EC) 1371/2007 on Rail Passengers' Rights and Obligations. The referring court wants to know whether
Article 30 para 1 is to be interpreted as meaning that the National Enforcement Body is entitled to dictate to railway undertakings certain terms of compensation even though national law only allows to declare terms ineffective if they do not comply with Article 17; and
Article 17 is to be interpreted as meaning that a railway undertaking may exclude compensation in cases of force majeure.
The Austrian National Enforcement Body had regarded the terms used by the Austrian Railway Company (ÖBB) as not being in line with Article 17 of the Regulation and therefore required the ÖBB to make particular amendments with regard to these terms. Upon complaint by ÖBB, the Adminstrative Court has filed the eference for preliminary ruling.
Full text of the VwGH motion 2011/03/0077 of Sept. 8, 2011 (EU 2011/0009) available in German here>>.
Case number at ECJ: C-509/11
Austrian Supreme Court: hotel liable for theft from safe in hotel room
The plaintiffs (a German couple) sued a Vienna 4 star hotel company for compensation of more than EUR 160.000 of valuables stolen from the safe in their hotel room. When they had asked at the reception where to keep their valuables, the receptionist had told them to use the safe in their room. This safe had to be locked and unlocked by a code of four numbers chosen by the plaintiffs. However, the safe could also be opened by using a 'mastercode'.
Austrian Constitutional Court: no state liability for alledgedly false application of the Package Travel Directive
The plaintiff (a lawyer) initially had sued a tour operator for mal-performance of a package travel contract. The claim had been dismissed by all instances as courts had held that the plaintiff had booked accomodation in a Dubai city hotel with half board and a shuttle service to the beach - and had exactly got what he had booked. It had to be regarded obvious that a city hotel could not offer the same amenities with regard to duration and flexibility of staying at the beach like a hotel directly situated there.
Austria: hotel operator not liable for injury of a guest who tried to repair a jamming glass door
The plaintiff who was a former share holder of a hotel company (the defendant) and also the former companion of the defendant's director stayed in the defendant's hotel as a guest, when the director asked him to do her the favour to look for a jamming glass door in the indoor pool area because she couldn't reach any craftsman. When he tried to remove the defective glass door, he got severely injured on his right hand. He sued the hotel company for compensation for pain and suffering. The court of first instance granted the claim.
Austria: Supreme Court decides on fatal scuba diving trip with tiger sharks
Upon request of two consumers, the Defendant (an Austrian travel agent) offered them a package consisting of a tiger shark scuba diving trip to the Bahamas organized by a Florida based scuba diving company and the flights from/to Austria. The concept of the diving trip was based on watching tiger sharks while diving without a protecting cage.
