In this case, a traveler booked a package tour in which a particular airline was initially designated as the transportation company. After the airline declared bankruptcy and insolvency proceedings were initiated over its assets, the tour operator organized a replacement flight with another airline. The traveler demanded the reimbursement of the additional costs incurred through a claim for damages against the tour operator.
Legal assessment by the Munich District Court
Claim for damages
The Munich District Court evaluated whether the insolvency of the originally commissioned airline constituted a claim for damages by the traveler against the tour operator. According to the applicable contractual situation, the tour operator is obligated to ensure the transportation service, without an agreement on the flight to be conducted by a specific airline. In the present circumstance, only the transportation service was included in the travel contract, not the naming of an airline as a decisive feature.
No fault on the part of the operator
For a claim for damages according to § 651n Abs. 1 of the German Civil Code (BGB), fault on the part of the tour operator would be required. However, the insolvency of an airline is an external, unforeseeable event that can only be attributed to the tour operator’s risk area insofar as it must offer a proper replacement transportation. In this case, the operator met his obligation by providing an alternative transportation option in a timely manner.
Replacement transportation as fulfillment of the contractual obligation
By providing replacement transportation, the purpose of the contract was preserved. There was no claim to conduct the trip with a specifically named airline, nor any obligation for the operator to bear the financial disadvantages of a third-party company’s insolvency. Therefore, the damages claimed by the traveler against the operator were not awarded by the court.
Significance of the ruling for contract execution in travel law
The ruling corresponds to the prevailing opinion that, in the event of a service provider’s insolvency, the tour operator must take reasonable replacement measures but is not required to assume financial risks beyond the contractually owed core service, unless there is specific selection negligence or an express warranty has been assumed.
Conclusion
The decision clarifies that insolvency risks of fulfillment agents do not automatically transfer to the tour operator. What matters is the provision of an equivalent replacement service. This is particularly relevant in the context of complex contractual arrangements and multiparty relationships. In cases of doubt regarding liability distribution in relation to insolvencies in travel law, a well-founded legal assessment is recommended. Further information and professional support can be found under legal advice in insolvency law.
