The plaintiff booked a cruise in July 2004. The defendant is the legal successor of the tour operator and carrier. On 10 July 2004, at around 04h00, the plaintiff used a whirlpool located on the deck of the cruise ship. When leaving the pool, he slipped on the wet plastic border of the pool and fell at the foot of the border onto the broken glass of a broken wine or champagne bottle. He sustained cuts to his left knee and right ankle as well as to his buttocks, which were treated by the on-board doctor. The plaintiff had to remain in the infirmary of the cruise ship until the end of the trip.

The plaintiff argued that the location was a hazard that was not adequately secured. When it was wet, there was a high risk of falling, especially in the plastic area. The actual exit from the whirlpool was only provided with a single handrail; further safety devices were missing. In addition, the defendant should have made sure that there was no broken glass near the whirlpool.

The plaintiff claims payment of compensation for pain and suffering in the amount of EUR 15,000 from the defendant, the repayment of the travel price and his expenses for travel cancellation insurance totalling EUR 1,187, the reimbursement of additional injury-related costs in the amount of EUR 850, as well as reimbursement of other additional payments, which he puts at least EUR 2,000.

The defendant, who denies a breach of duty of public safety, points out that the plaintiff fell due to a lack of caution. There was a warning against the risk of slipping in the whirlpool area. The defendant points out that the whirlpool is drained at midnight and refilled at 04h00. The cleaning staff did not find a broken wine or champagne bottle. This would have been discovered and cleared away after the end of the pool party and when the pool was put into operation. Any claims are also statute-barred.

In its judgment of 29 January 2010, the Rostock Regional Court dismissed the action. Any claims under §§ 823, 831, 253, 249 ff BGB [Civil Code] or §§ 651a ff BGB are statute-barred and the defendant is entitled to refuse performance pursuant to § 214 BGB. For any claims for damages by the plaintiff due to the violation of safety obligations on the cruise ship, the limitation period of art 13 of the Annex to § 664 HGB [Commercial Code] [art 16 of the Athens Convention 1974] applies, according to which claims for damages expire in two years, starting on the day of disembarkation of the passenger. This deadline has passed. For any travel contract claims, the two-year limitation period in accordance with art 13 of the Annex to Section 664 HGB applies.

The plaintiff's appeal is directed against this decision. He argues that the application of the Annex to § 664 HGB is limited to cases of typical ship hazards. This provision does not affect damage that is attributable to the culpable behaviour of the carrier in its capacity as a tour operator. The Regional Court misunderstood that the defendant was not only a carrier, but also a tour operator. The accident at issue is also not a consequence of the realisation of typical ship dangers. Rather, the breach of duty of public safety alleged by the defendant could have occurred equally in any hotel complex on land. The limitation of liability of the defendant as a tour operator under § 651(2) BGB does not apply to tortious claims. The competing claims for damages from the travel contract and breach of a tortious safety obligation should be treated separately under the statute of limitations. Ultimately, however, the defendant could not invoke the statute of limitations because it did not point out the limitation periods according to the Annex to § 664 HGB. The plaintiff argues that his notification of the accident to the ship's doctor had already led to the limitation period being suspended. The doctor’s knowledge can be attributed to the defendant.

The defendant, who requests that the appeal be dismissed, is defending the first-instance judgment. The limitation period of art 13 of the Annex to § 664 HGB is to be applied to the present situation. Based on this, the Rostock Regional Court correctly decided that the plaintiff's claim was time-barred. The suspension of the statute of limitations, which occurred in the meantime through negotiations, was only 164 days in total. With the letter from its insurer dated 21 May 2005, the defendant clearly and unequivocally stated that the plaintiff was not entitled to any claims. The letter of 6 December 2006 had the same effect. The notification of the accident to the ship's doctor did not lead to a suspension of the statute of limitations, since he is not the tour operator's agent.

Held: The plaintiff's appeal is, to a small extent, successful.

The Regional Court rightly ruled that any tortious and travel-related claims of the plaintiff for payment of damages and compensation for pain and suffering against the defendant are statute-barred. However, the plaintiff is entitled to repayment of the proportionate travel price of EUR 997.50 against the defendant, as this was reduced by 7/8 due to the broken glass in the pool area (§§ 651d(1), 638(4) BGB). The repayment claim is also statute-barred (§ 651g(2) BGB). However, due to the breach of its obligation to provide information, the defendant is liable to the plaintiff for damages in accordance with § 280(1) BGB.

Any tortious and travel-related claims for damages and compensation for the plaintiff's pain and suffering against the defendant have expired in accordance with art 13 of the Annex to § 664 HGB. The sole legal basis for the liability of the defendant is the Annex to § 664 HGB, which implements the Athens Convention 1974 in Germany. Section 664(1) HGB stipulates that the [contractual] carrier and the performing carrier shall be responsible for damage caused by the death or personal injury of a traveler or the loss of or damage to luggage when transporting passengers and their luggage by sea. According to art 2.1 of the Annex to § 664 HGB [= art 3.1 of the Athens Convention 1974], the carrier is liable for damage caused by the death or personal injury of a passenger and by loss of or damage to luggage if the event causing the damage occurred during the carriage and is based on negligence on the part of the carrier or its employees or agents acting in the performance of their duties. Article 2.1 thus forms the basis for claims for any liability on the part of the carrier, regardless of whether the damaging event is a shipwreck, a collision, stranding, explosion or fire, or a defect in the ship, or is related to one of these events. This restriction to so-called ship-typical dangers only applies within the framework of art 2.3 [= art 3.3 of the Athens Convention 1974], according to which the fault of the carrier or its employees or agents acting in their performance is presumed until proven to the contrary, if the death or personal injury of the passenger or the loss of or damage to cabin luggage was caused by one of the aforementioned events. Contrary to the view of the plaintiff, this limitation regulated in art 2.3 cannot be extended to the scope of the Annex to § 664 HGB regulated in art 2.1, with the result that this Annex only applies in cases of so-called ship-typical dangers. Rather, the context of the regulation shows that for typical ship dangers not mentioned in art 2.3, the general rule of presentation and burden of proof applies, according to which the injured party is burdened with presentation and evidence for the culpable breach of duty and the cause of damage.

Contrary to the view of the plaintiff, the Annex to § 664 HGB also includes damage caused by incidents that can be traced back to the culpable behaviour of the defendant in its capacity as a tour operator. Article 1 of the Annex to § 664 HGB [= art 1 of the Athens Convention 1974] clarifies the sense in which the individual terms are used in the provisions of this Annex. According to this, 'carrier' is a person through or for whom a contract of carriage is concluded, regardless of whether the carriage is actually carried out by it or by a performing carrier (art 1.1.a). The defendant or its legal predecessor in its capacity as a tour operator was therefore a 'carrier' within the meaning of the Annex to § 664 HGB. The defendant's liability as a tour operator follows directly from art 2.1 of the Annex to § 664 HGB. As the person carrying out or executing the trip, the defendant was the 'performing carrier' of the trip booked by the plaintiff (art 1.1.b); in this capacity the defendant is liable under art 2.1 of the Annex to § 664 HGB.

Article 11 of the Annex to § 664 HGB [= art 14 of the Athens Convention 1974], to which the plaintiff refers in this context, does not result in a different legal assessment. According to this regulation, a claim for damages for personal injury to a passenger can only be brought against a carrier or performing carrier on the basis of the provisions of this Annex. This means that the passenger’s claims arise exclusively from the provisions of the Annex if the carrier is also the tour operator and its poor performance results in bodily harm. The fact that the breach of public safety obligations that the defendant is accused of could have taken place in any hotel complex on land is irrelevant in this context. Since it is undisputed that the incident occurred while the plaintiff was on board the ship, according to § 664 HGB the Annex applies (art 1.8.a).

Contrary to what the plaintiff argues, nothing else emerges from the 2002 Protocol to the Athens Convention 1974. The Athens Convention 2002 (not yet ratified at the time of the incident and therefore not applicable to the matter to be decided) has replaced the rebuttable presumption of fault on the part of the carrier for death or personal injury of a passenger, as regulated in the Athens Convention 1974, in so far as it is a shipping incident such as a ship collision or fire on the ship (arts 3.1 and 3.5), with strict liability up to a limited amount. A limitation of the Athens Convention to dangerous situations typical to ships is not connected to this, and cannot be derived from this amendment.

Section 664 HGB and the Athens Convention do not contain any regulations on the type and scope of the compensation to be paid. The question of whether immaterial damage can be compensated for has therefore also remained open. This should be left to the applicable national law (BGH, judgment of 16 December 1996, II ZR 269/95). According to German law, §§ 249 f BGB as well as § 253(2) BGB grant compensation for pain and suffering if compensation is to be paid for injury to body or health.

The material and immaterial claims for damages of the plaintiff resulting from the Annex to § 664 HGB have been statute-barred since 30 December 2006. According to art 13, claims for damages due to bodily harm to a passenger expire in two years, starting on the day of disembarkation. The period of limitation thus ended in the normal course of events on 16 July 2006. With regard to suspension or interruption, the general provisions on the statute of limitations apply (§§ 203 f BGB). According to § 203 BGB, if negotiations are pending between the debtor and the creditor about the claim or the circumstances giving rise to the claim, the statute of limitations is suspended until one or the other party refuses to continue the negotiations.

Contrary to the plaintiff's submissions, the suspension of the statute of limitations did not begin with the notification of the accident to the ship's doctor on 10 July 2004, because it is - as the Regional Court rightly determined - not evident that this notification resulted in the defendant entering into negotiations on claims before receiving the plaintiff's letter of 10 November 2004. With correct justification, the Regional Court found that the letter of 21 January 2005 fulfils the requirements that the case law places on a refusal to continue the negotiations leading to the end of the inhibition on the limitation period. Thus, as the Regional Court found, the period of the suspension was 103 days (from 11 October 2004-21 January 2005). According to § 209 BGB, the period during which the limitation period is suspended is not included in the limitation period. The limitation period then ended on 27 October 2006. In the period from 4 November 2006 to 6 December 2006, the statute of limitations was once again suspended, because the parties resumed negotiations. The period of the second inhibition was 63 days (11 April-12 June 2006); the statute of limitations therefore ended on 29 December 2006.

Competing tortious claims for damages under §§ 823, 831 BGB do not exist. They are excluded according to art 11 of the Annex to § 664 HGB. According to this regulation, claims for damages for tort or other reasons can only be asserted under the conditions and restrictions provided in the Annex. This also applies to the defendant in its capacity as a tour operator. The Appendix to § 664 HGB does not differentiate between contractual and tortious claims, but covers both. The scope of liability - with the exception of a limitation to maximum liability amounts - is not regulated in the Annex to § 664 HGB. The type and scope of the claims for damages rather result from §§ 249 f BGB and include, according to § 253(2) BGB, the ability to compensate for immaterial damage in the event of injury to body or health.

The wording of art 11 of the Annex to § 664 HGB is clear and expressly excludes any liability based on other grounds for claims. The Federal Court of Justice has not yet made a final decision on a possible competition between §§ 823, 831 BGB and the Annex to § 664 HGB, but it has indirectly denied it. In its judgments of 16 December 1996 (II ZR 269/95; II ZR 271/95, NJW-RR 1997, 1115, 1116) the Court stated, among other things, that the Athens Convention 1974, which has been adopted into German law, regulates the liability of the carrier regarding passengers independently and also conclusively. The specific liability requirements of national law are therefore irrelevant when filling gaps that the Athens Convention leaves (only) with regard to the scope of liability. The only decisive factor is whether German law grants compensation for pain and suffering in comparable cases. This is to be answered in the affirmative.