Germany: new reference for ECJ preliminary ruling regarding Reg. 261/2004
On Nov. 25, 2011, the German Amtsgericht Düsseldorf has filed a motion for preliminary ruling to the ECJ regarding the follwoing issue:
Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 if the departure time of a flight has been delayed for a period of time falling within the limits defined in Article 6(1) of the regulation, but the flight arrives at the final destination at least three hours after the scheduled time of arrival?
Case C-594/11, Becker v. Air France
A similar reference had been filde by the German Supreme Court (BGH) on Dec. 9, 2010.
USA: Costa Concordia victims sue for USD 460 milion in Florida
Attorneys for six passengers of the Costa Concordia reportedly filed a law suit in Miami’s federal court requesting USD 450 million in punitive damages and USD 10 million in compensatory damages. The complaint says plaintiffs were “in terror of catastrophic injury, death, drowning, having been placed in a situation where common sense said the vessel was sinking but the orders from the crew were to return to their cabins.”
However, legal experts question whether any lawsuits filed in the U.S. will succeed because under the terms of the cruise contract signed by passengers, all lawsuits seeking damages must be filed in Genova, Italy, where Costa is based.
Source: Travel Pulse; find article 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
USA: deplaned passenger's complaint fails to state a viable cause of action under the Montreal Convention
The plaintiff and her daughter boarded the aircraft for a Continental flight from Newark to Cancun, Mexico. After a dsipute with the flight attendants over her seating and and while waiting in the forward galley, the plaintiff began talking on her cell phone. When a flight attendant told her to end the call, she replied that “the pilot didn’t announce not to be on your phone and I’m talking to my Mom” and continued her conversation. The flight attendant then told the plaintiff to stop talking on her phone or else exit the plane. Nevertheless, she continued speaking on the phone for another six or seven minutes. After some resistance by the plaintiff, and after an airline employee allegedly threw some of her carry-on items from the aircraft onto the jetway, she deplaned.
Continental rebooked the plaintiff and her daughter on a later flight, and they arrived in Cancun several hours later than originally scheduled.
The plaintiff filed a lawsuit against Continental in state court, alleging claims for intentional infliction of emotional distress, negligent infliction of emotional distress and breach of contract. The airline removed the case to federal court which granted a motion for summary judgment on the grounds that the Montreal Convention exclusively governed the passenger’s claims and that she had failed to state a viable claim under the Convention. The court found that, although the passenger had complained of “physical manifestations of emotional and mental anguish” in her complaint, she had admitted during her deposition that she had, in fact, not sustained any physical injury as a result of the incident at issue.
Case Rogers v. Continental Airlines (D. N.J. Sept. 21, 2011); find full opinion here>>.
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>>.
USA: man who helped to stop "underwear bomber" sues for USD 10 million
In a lawsuit filed in the U.S. District Court for the Southern District of New York on Dec. 21, Theophilus Maranga says he "risked his life" by jumping on the would-be bomber Umar Farouk Abdulmutallab, a Nigerian man who attempted to blow up a Detroit-bound flight from Amsterdam with a bomb stashed in his underwear. The lawsuit says Maranga lost a tooth and suffered injuries to his ribs, permanent numbness in his hands and a pain in his neck that hampers his movements. It accuses Delta Air Lines and Air France-KLM of negligence for "allowing a bomber to board their aircraft with an explosive device." The lawsuit also names Abdulmutallab, who has confessed to attempting to bomb the plane, as a defendant.
Case: Maranga v. Abdulmutallab et al, 1:2011cv09397 find further case details here>>.
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'.
