The Koblenz Higher Regional Court recently confirmed that tour operators cannot be held liable by cruise passengers for gym injuries sustained during large swells.(1)
During a cruise, the plaintiff visited the onboard gym as the ship entered a large swell. While using a treadmill, the plaintiff fell and was injured. The plaintiff sued the tour operator, as a contracting party, for damages relating to the injuries. In her opinion, she should have been provided with at least a warning of the risk of a fall.
At first instance, the Koblenz Regional Court dismissed the complaint, holding that:
- the tour operator had not violated its duty to ensure passenger safety; and
- the plaintiff was responsible for:
- moving carefully around the ship; and
- ensuring that she had the necessary support to prevent a fall.
The plaintiff appealed.
Higher regional court decision
The Koblenz Higher Regional Court confirmed the lower court's decision and dismissed the appeal.
According to the court, there were no grounds for compensation because the defendant had not breached its safety obligations. Further, it was obvious that in heavy seas cruise passengers must:
- move carefully around the ship;
- ensure their own safety; and
- decide for themselves which risks to take.
Further, warning passengers of the risks involved in using a gym under such circumstances is unnecessary and self-evident.
The court held that the gym incident was an example of an everyday life risk and that the injury was only incidentally related to the use of the gym and could have happened elsewhere on the ship (ie, it had been caused by the swell).
This decision is in line with many judgments concerning similar claims by cruise passengers. It re-emphasises the fact that ships shift constantly at sea and that all passengers should therefore take appropriate care while on board – particularly during large swells – as failure to do so may deny them the ability to claim damages if an accident occurs.(2)
For further information on this topic please contact Lars Kortländer, Sybille Rexer or Esther Mallach at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) or email ([email protected], [email protected] or [email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) Koblenz Higher Regional Court, 23 May 2018 (5 U 351/18).
(2) See the Bremen Regional Court, 5 June 2003 (7 O124/03); Bremen Higher Regional Court, 3 June 1997 (3 U 139/96); and Rostock District Court, 9 March 2012 (47 C 406/11).
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