The second plaintiff booked a Caribbean cruise organised by the carrier for himself and the first plaintiff on an Italian-flagged ship at a total price of EUR 4,758. Extensive repair work had to be carried out on the pool on deck 15 at night during the first two days and subsequently during the day. This was associated with noise pollution. The first instance Court awarded the plaintiffs - unchallenged - EUR 357 for this nuisance.

The first plaintiff also fell ill on the cruise. It turned out that she was suffering from gastroenteritis. In connection with this illness, the first plaintiff was awarded EUR 4,470. In the appeal proceedings, only the carrier's liability for the first plaintiff's claims in connection with her illness was still in dispute.

The plaintiffs sought a reduction in the travel price, compensation for lost holiday enjoyment, compensation for pain and suffering, and reimbursement of expenses in connection with the first plaintiff's illness. They alleged that the first plaintiff contracted gastroenteritis due to the food (beef tartare, burgers, pizza, and stuffed rolls) that she received on board and the poor hygiene in the restaurant on board the ship. In addition, the ship's doctor treated her incorrectly, which allowed bacteria to multiply and settle in her intestines.

The carrier applied for dismissal of the lawsuit with costs, and argued that the illness of the first plaintiff did not fall within the carrier's area of responsibility. The cruise was governed by the Athens Convention 2002, to which the EU acceded by Council Decision of 12 December 2011 (2012/22/EU). In the absence of a cause attributable to the carrier, and in the absence of fault on the part of the carrier or an employee attributable to it, for which the plaintiffs had the burden of proof, the plaintiffs were not entitled, according to the Convention, to any reduction in the price of the trip, any compensation for pain and suffering, any claim for compensation for the loss of vacation enjoyment, or for other expenses.

Held: Carrier's appeal allowed.

According to the Athens Convention 2002, the tour operator as carrier is liable for bodily injury and luggage damage during passengers' stay on board under maritime law, which, as a more specific regulation, takes precedence over general travel contract law (Lindinger, Urlaubskreuzfahrt, ZVR 2010/95). According to art 3.1 of the Athens Convention 2002, the carrier's (limited) no-fault liability only applies to the death or bodily injury of a passenger due to a shipping incident within the meaning of art 3.5.a, which means shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship. For damage caused by the death or personal injury of a passenger due to an event other than a shipping incident, the carrier is liable in accordance with art 3.2 of the Convention only if the incident causing the damage is due to the fault of the carrier. The burden of proof of fault lies with the plaintiffs. Article 3.6 of the Convention further stipulates that the carrier's liability under art 3 relates only to damage caused by events occurring during carriage, with the burden of proof being that the event causing the damage occurred during carriage, and that the carrier is responsible for the extent of the damage.

According to art 14 of the Convention, an action for damages for death or personal injury to a passenger, or for loss of or damage to baggage, may be brought against a carrier or performing carrier only on the basis of that Convention. An assessment of claims based on other legal grounds is not possible.

According to the findings, there was no 'shipping incident' within the meaning of art 3.1 of the Convention, which is why only liability due to another event within the meaning of art 3.2 of the Convention can be considered. The prerequisite for this - as the carrier correctly points out - according to arts 3.2 and 3.6 of the Convention, is that the event causing the damage occurred during the transport and that this was due to the fault of the carrier.

From the findings of the first instance Court - as the carrier correctly shows - liability of the carrier under art 3.2 of the Convention cannot be inferred. This does not demonstrate with the high degree of probability required for civil proceedings that the event causing the damage, namely the infection of the first plaintiff with campylobacter, occurred during the transport.

The ZPO's standard burden of proof is high probability and not probability bordering on certainty (RIS-Justiz RS0110701). This proof is provided when a judge is convinced that the occurrence or non-occurrence of a fact is so probable that no reasonable person with a clear overview of the relevant circumstances doubts it (Klauser/Kodek, JN - ZPO 18 § 272 ZPO E 23/ 2). The findings of fact in a judgment must clearly state whether a specific circumstance that is essential to the decision is established, or that such a determination is not possible because the circumstance cannot be assumed to be proven with such high probability (3 Ob 314/97s ).

The first instance Court failed to do this, and found that infection on the cruise ship was 'quite likely'. It can therefore be seen from the findings that the infection of the first plaintiff may have occurred on board the cruise ship, but it is also possible that the first plaintiff became infected before the start of the trip. The determination that the first plaintiff's infection on board the ship is 'quite likely' is insufficient for the required high probability within the meaning of the ZPO. There is therefore a lack of causal behaviour on the part of the carrier.

Furthermore - as the carrier also correctly asserts - it cannot be inferred from the findings of the first instance Court that the carrier was at fault for the first plaintiff's campylobacter infection. According to the findings, HACCP and USPH hygiene rules were adhered to, and there was no significant increase in campylobacter infections among the passengers. The carrier has therefore complied with its obligations. The carrier's liability is solely to be examined in accordance with art 3.2 of the Athens Convention 2002. A prerequisite for this is fault, ie objectively negligent conduct, which can also be subjectively blamed on the carrier (see also Reischauer in Rummel, ABGB 3 § 1294 ABGB Rz 20). However, this does not emerge from the findings; rather, it was determined that the hygiene concepts were adhered to, and that hygiene on board was impeccable. A significant increase in campylobacter infections could not be determined. Even if individual foods were contaminated with campylobacter, the findings showed neither that this was avoidable nor that the carrier could be subjectively blamed. Likewise, incorrect treatment by the ship's doctor could not be determined.

According to the findings, there is therefore no fault on the part of the carrier. This means that the carrier has no liability for the plaintiffs' claims for compensation for pain and suffering, loss of holiday enjoyment, and price reductions, as well as expenses in connection with the first plaintiff's illness.