Austria: Supreme Court decides on fatal scuba diving trip with tiger sharks

Michael Wukoschitz's picture

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.

The Defendant did not offer the package to any other customers than a group put together by the two requesters. The booking confirmation named the Florida company as the organizer whereas the Defendant was explicitly mentioned as the mere retailer.

During one of the dives, a member of the group was killed by a tiger shark. His wife sued the travel agent for a EUR 20.000 compensation for pain and suffering including loss of companionship.

At first instance, the Commercial Court Vienna (HG Wien) dismissed the claim: the Defendant had explicitly made clear to act as an agent only. The Defendant also had neither put together the services nor on his own behalf offered any services at the spot. It had only as an intermediary sold a package of the scuba diving company and the flights. The deceased had been an experienced scuba diver and properly informed about the risks involved. There had also been no failure in selection on part of the Defendant as he had made invstigations regarding the scuba diving company which had led to the result that it was a properly licensed and trustworthy company.

The appleate court (OLG Wien) upheld this decision.

Upon further appeal by the Plaintiff, the Austrian Supreme Court (OGH) repealed the judgement and remanded the case to the first instance court. As the Defendand had offered a combination of air transport and a scuba diving package, he had acted as an organizer because the offer of the Florida company had not included any flights. The Defendant had sold this whole package at an inclusive price. He could therefore not claim to have acted as an intermediary only. However, the lower courts had correctly denied a failure to provide proper information: the deceased had in fact deliberately accepted a well known risk.

But as Plaintiff had also based her claim on negligent behaviour of the local staff who had pulled the sharks in by feeding them and Defendant would be liable for such negligence, the case had to be remanded to first instance to establish the facts which had led to the accident.

Full text of judgement 1 Ob 80/11p of May 24, 2011 available in German here>>.

 

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