The booked package tour from Vienna via Barcelona to Miami and a subsequent one-week cruise ended abruptly in Barcelona for five family members.

While waiting for the onward flight to Miami, the travel group was denied onward transportation on the grounds that a suitcase belonging to one of the family members was missing. When the group’s missing suitcase was found, the plane to Miami had already taken off.

The family was offered an alternative flight to Miami two days later. However, this would have meant that the cruise ship could no longer be reached in time. As a result, the family decided to return to Vienna.

The father of the family sought reimbursement of the travel price and compensation for lost vacation enjoyment from the defendant, which operates a travel agency.

The court of first instance granted the claim and based its judgment on the fact that the defendant was liable for the provision of the event services and had to accept responsibility for the fault of its vicarious agent, the airline.

However, the court of appeal upheld the defendant’s appeal and dismissed the claim. In the opinion of the second court, a breach of primary or secondary contractual obligations by the defendant or its vicarious agents could not be recognized on the basis of the established facts.

In the third instance, the Supreme Court upheld the plaintiff’s appeal and restored the first judgment. “By way of a chain of vicarious agents, the defendant is also liable for the assistants called in by the airlines carrying out the transportation of the plaintiff and his family for the registration, sorting and transportation of the baggage, in particular for checking this baggage during a stopover.”

“The denied boarding of the plaintiff and his family as well as their luggage constitutes a non-fulfilment of the tour operator contract. The non-fulfilment of the main contractual obligation – in this case air transportation – is linked to the reversal of the burden of proof under § 1298 ABGB. ”

The inexplicable cause of the denial of onward carriage was therefore at the expense of the defendant tour operator, which ultimately failed to provide evidence of exoneration.