In a case reported earlier, the Austrian Civil Supreme Court has now deleivered the final judgment. The plaintiffs had missed their Antarctica cruise following a delayed departure of their feeder flight to Frankfurt caused by snow covered runways at the Vienna airport. They sued the carrier and the airport for damages. While the claim against the carrier was based on the Montreal Convention, the claim against the Vienna airport was based on non-performance of contractual obligations. The plaintiffs argued that by paying airport fees they had entered into a contract with the airport which obliged the latter to take all reasonable measures to facilitate timely transportation by air. The airport had failed to do so by not removing the snow from the runways in time as well as by not providing sufficient de-icing facilities and had thus caused the delay.At first instance the Landesgericht Korneuburg dismissed the claim. It held that the airport was not acting as one of the carrier’s “servants and agents” pursuant to Article 19 of the Montreal Convention. It further held that there was no contract between the airport and the passengers with regard to the use of the runways.The appelate court (OLG Wien), however, followed the plaintiffs’ arguments and granted the claims.Upon further appeal of the defendants, the Supreme Court (OGH) has reversed the judgment again and dismissed the claim. Like the LG Korneuburg, the OGH held that the failure of the airport was not contributable to the carrier. Though the Vienna airport had failed to prove that it had taken all reasonable measures to clean the runways in time to allow for a timely departure of the flight, there was no claim against the airport because there was no contract between the airport and the passengers which constituted such obligation. The only contractual relation of the aiport in this regard was the one with the carrier. Though this contract could be regarded as a contract constituting a duty to protect the passengers, liability arising from such duty would not cover financial loss but only damage to persons or their property. Although a snow cover on the runways could not be regarded a case of “force majeure” thererfore there was no liability of the carrier or the airport for the financial loss caused by the delay.OGH judgement 6 Ob 131/12a of Nov. 16, 2012 available in German here>>.
