On 15 May 2018 the Federal Court of Justice evaluated a fine which had been imposed on an air carrier (plaintiff) for transporting a passenger (defendant) who lacked a visa. The plaintiff claimed damages from the passenger, whose lack of a visa had led to the Indian immigration authorities imposing a fine. The court ruled that air carriers are responsible for ensuring that passengers are in possession of the necessary documents to enter their country of destination.

Facts

In Spring 2015 the defendant booked a flight to India using the plaintiff’s website.

On his arrival in India, the defendant did not have the visa required for entry into the country, which led to the Indian immigration authorities imposing a Rs100,000 (approximately €1,415) fine on the plaintiff. Consequently, the plaintiff claimed compensation of this amount from the defendant.

The Hanover Local Court sentenced the defendant to pay the compensation. The defendant’s appeal was unsuccessful.

Federal Court of Justice decision

The Federal Court of Justice overruled the appeal judgment and remitted the case to an appeal court to be judged afresh. The Federal Court of Justice held that the appeal court had been right to conclude that the defendant had had a contractual secondary obligation not to board a flight without the documents necessary to enter his country of destination, especially a valid visa.

However, the appeal court had erroneously held that the plaintiff’s contributory negligence in the occurrence of the damage had been irrelevant since the plaintiff had not been obliged to check the defendant’s entry documents. Contributory negligence does not require a breach of legal obligations towards someone else (Section 254 of the Civil Code). Instead, an individual’s attributable participation in causing the damage in the form of a violation of their own interests or the violation of their own obligation is sufficient to be considered contributory negligence.

In the case in question, the Indian authorities had fined the air carrier for its failure to comply with its own legal obligation not to onboard a passenger without the visa required for entry into India. Given this background, the Federal Court of Justice held that the plaintiff had in fact been obliged to ensure that the defendant had had all of the necessary documents with him. The air carrier’s conditions of carriage, which reflected only the passenger’s obligation to carry the necessary travel documents, did not exclude the contributory negligence objection.

Further decisions

The Frankfurt Local Court followed the Federal Court of Justice’s decision in an order on 5 October 2018 (32 C 1181/18). In this case, a passenger (plaintiff) had claimed reimbursement of a ticket price from an air carrier (defendant). The passenger had booked a flight from Germany to Pakistan. However, she had not carried a valid visa, as her single-entry visa had already been used once and had therefore expired.

The Pakistani immigration authorities had imposed a fine of approximately €3,807 on the defendant for transporting a passenger without a valid visa into Pakistan.

Fraport AG, which had been in charge of checking the entry documents, agreed to pay €1,500 as part of the fine. Hence, the defendant filed a counterclaim against the plaintiff in the amount of 50% of the remaining fine (ie, €1,153.50). The defendant therefore owned up to its 50% contributory negligence.

The Frankfurt Local Court followed the defendant’s argument regarding the fine and ordered the plaintiff to pay €1,153.50 to the defendant.

The court also partially followed the plaintiff’s argument and ordered the defendant to reimburse 50% of the return ticket price. It argued that the plaintiff had taken her flight to Pakistan as planned; however, due to the visa issue, she had returned to Germany immediately and had been unable to use her initially planned return flight. According to the court, she was therefore entitled to be reimbursed for the return flight. However, the court also considered the plaintiff’s breach of her contractual secondary obligation and reduced the reimbursement to 50% of the return ticket price.

The court also mentioned that the passenger had been obliged to know the terms of her visas (ie, single entry) and dismissed her objection that she had been unable to read or understand the visa in her passport.

The plaintiff filed an appeal against the Frankfurt Local Court’s decision. However, the competent appeal court (the Frankfurt Regional Court) upheld the local court’s judgment and dismissed the appeal in full, referring to the Federal Court of Justice’s ruling of 15 May 2018.

Comment

The Federal Court of Justice’s decision has clarified that the secondary obligations arising from a contract of carriage between a passenger and an air carrier extend to the verification of the validity of the documents required for entry.

However, checking that passengers have the correct documentation also remains an obligation for air carriers. Air carriers must therefore check the validity of passengers’ documents before admitting them to a flight, particularly with regard to the regulations of the destination country, in order to rule out their own contributory negligence.

In this way, passenger claims for damages and fines from the destination country can be avoided.

For further information on this topic please contact Sophia Iwantscheff at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (s.iwantscheff@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

This article was originally published in International Law Office by Sophia Iwantscheff, Senior Associate at Arnecke Sibeth Dabelstein on May 8, 2019.

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