The plaintiff had booked a package to the Dominican Republic with the defandant. Defendant’s terms and conditions provided that with regard to third party services (such as local excursions), the defendant was only liable for proper intermediation but not for the proper performance of the services themselves. Defendant’s local representative in the Dominican Republic distributed weekly schedules to the guests containing various optional excursions. These schedules showed the logos of the defendant in the headline and stated in the bottom line that the excursions were organized under the sole responsibilty of a particular local organizer.From the offers in the weekly schedule, the plaintiff and her husband booked a boat excursion and the defendant’s local representative accepted the booking. Nobody told the plaintiff that this excursion would be organized by the defendant. Neither was there any written hint in this regard.The boat brought the plaintiff, her husband and some other guests to an island were the boat stopped close to the beach to let the participants disembark to the water. The participants were told to leave the boat between the two engines at the rear end. However, the space between this engines was rather small and there was no kind of grab handle, stair case or hand rail which could be used to maintain balance. According to the findings of the courts of lower instances, such kind of disembarking did not comply with the rules and regulations of good seamanship. When the plaintiff tried to disembark, a wave rocked the boat and she fell and broke her leg.She sued the package orgainzer and succeeded in all instances. With resolution of Jan. 29, 2015, the Austrian Supreme Court (OGH) dismissed the defendant’s appeal and upheld the jugdements of the lower instances: the Supreme Court pointed out that with regard to liability as an organizer, the perception of an average consumer is decisive. The lower courts therfore rightly had held that once defendant’s logos in the headline of the weekly schedule and the fact that defendant’s local representative accepted the bookings for the excursions had created the impression that these excursions were organised by the defendant, the small printed information provided in the bottom line of the weekly schedule was not sufficient to reverse this impression.Case details: OGH resolution of Jan. 29,2015, 6 Ob 22/14z
