German Supreme Court: consumer entitled to cancel cruise to the Caribbean because of ash cloud preventing him to fly

The plainitff had booked a cruise to the Caribbean and a flight ticket with defendant who acted as agent on behalf of the organiser and the airline. The flight was not part of the cruise package but booked separately. The cruise was scheduled to depart from Ft Lauderdale on 19 April, 2010. However, the closure of the European airspace due to the ‘ash cloud crisis’ prevented the planitff to fly to Florida. He therefore cancelled the cruise. The organiser charged a cancellation fee of 90 % which the agent paid. The plaintiff sued the agent for refund of the advance payment whereas the agent claimed for the difference to what he had paid the organiser.The first instance court granted the claim for refund and dismissed the agent’s claim. The appelate court decided the other way round. Upon plaintiff’s further appeal, the German Supreme Court (BGH) held that the cruise constituted a package and the plaintiff had been entitled to cancel this package free of any charge because he was prevented from travelling by a force majeure event. The agent therefore could not claim for the amount paid to the organiser. On the other hand, the plaintiff had no claim against the agent with regard to refund of the advance payment as such claim would have had to be filed against the organiser.Source: BGH press release 212/2012 of Dec. 18, 2012Case details: judgment X ZR 2/12 of Dec. 18, 2012

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