Two recent German judments deal with the denial of boarding to cruise passengers. In Pammer v. Reederei Schlüter[1] the CJEU had tought us that a cruise is a contract of transport which, for an inclusive price, provides for a combination of travel and accommodation – and therefore a package in the meaning of the PTD.[2] The legal consequences of denied boarding on a cruise ship, therefore, are to be assessed according to the respective provisions of the PTD, or more precisely, the national laws implementing this Directive.
1) No proper passport – no cruise
In the first case, decided by the Rostock Regional Court,[3] the plaintiff had booked a cruise for himself, his wife and their underage son. At the time of booking, he was informed that the United Arab Emirates (the country where the cruise would start and end) only accept chidren’s passports if they have not been extended or changed. Nevertheless, the plaintiff only carried an extended children’s passport for the minor.
While they had no problems entering the country, they were denied boarding by the cruise organiser because because the child’s travel documents were insufficient. The plaintiff demanded a refund of the package price and claimed compensation for the costs incurred as a result of the denied boarding as well as non-material damages.
The court dismissed the claim and held that the organiser had a legitimate interest in checking the travel documents and denying boarding if these documents are inadequate – even if the authorities overlooked the inadequacies when entering the country. The organiser would still have had to fear problems with the authorities when the travellers re-entered the country because the inadequate travel documents could then have been noticed. Carrying valid travel documents was the responsibility of the traveller – not the organiser – and imposing considerable costs or efforts on the organiser due to non-compliance with this obligation by the traveller would not seem appropriate.
The organiser had also not failed in their obligation to provide information, as they had sufficiently pointed out the entry requirements at the time of booking.
2) Covid-19 positive – no cruise
The second case, decided by the German Supreme Court (BGH),[4] involved a similar scenario: again, it was about a cruise of a couple with a minor child, this time a Mediterranean cruise from Mallorca in September 2021. On the day of boarding, the then mandatory PCR test for Covid 19 gave a positive result for the minor, which is why the family was denied boarding.
Like in the first case, the demanded full refund of the package price and compensation for the costs incurred as a result of the denied boarding as well as non-material damages. While the first instance court completely dismissed the claim,[5] the appelate court granted the refund of the package price but upheld the dismissal of the claim for damages.[6] Both parties lodged an appeal with the Supreme Court.
The Supreme Court considered that the organiser may terminate the package contract if they are prevented from performing the contract because of unavoidable and extraordinary circumstances.[7] In general, the Covid 19-pandemic could be regarded as “unavoidable and extraordinary circumstance”. In this case, however, it was not the pandemic as such, but the suspected infection of the child that had prevented the organiser from performing the contract. A circumstance that lies solely in the person of a traveller could not constitute an “unavoidable and extraordinary circumstance”, because this could only be said to be the case if the corresponding circumstance was not attributable to the sphere of risk of one of the contracting parties.
Due to the risk to other people on the ship, the serious suspicion of infection had been sufficient reason to refuse the family participation in the cruise. It was within the sphere of the travellers because obstacles due to the traveller’s own health would be attributable to the traveller. Therefore, they could not invoke unavoidable, extraordinary circumstances, even if the infection could not have been avoided even with the utmost care.
The law would not expressly regulate what rights the organiser has in case of refusing to provide services for justified reasons relating to the traveller. The non-performance of services would only constitute a deficency if it was not solely attributable to the traveller. However, the rules for termination of the contract by the traveller[8] could be applied accordingly, so that the organiser would be entitled to an appropriate termination fee, which may either be standardized or correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services.
As there were no findings of the lower courts regarding standardised termination fees specified in the contract or Savings and income, the Supreme Court referred the case back to the the Court of Appeal.
3) Observations and conclusions
While the result of both judments seems appropriate, the reasoning deserves deeper analysis.
First of all, it is noteworthy that the judgment of the Rostock Regional Court does not refer to any specific legal basis from which it derives the justification of the denial of boarding, which Vandersanden/Fink have already noted.[9]
The BGH, on the other hand, does make considerations based on specific legal provisions and ultimately bases its result (as described above) on an analogous application of the provisions for the termination of the contract by the traveller.
However, one might also take a different approach:
Article 3 para 13 PTD defines ‘lack of conformity’ as ‘a failure to perform or improper performance of the travel services included in a package’. The Directive doesn’t use the term ‘deficancy of the package holiday’[10] as used in the German Civil Code,[11] but refers only to ‘lack of conformity’.[12] While the provisions of Articles 13 and 14 PTD suggest that ‘lack of conformity’ relates to the period after the start of the package,[13] the definition of the term is broader and also covers the case where the organiser fails to perfom any of the travel services and therefore the package does not even start.
While the BGH refers to its own case law whereas there is no deficancy of the package holiday where the non-performance of travel services is due to reasons solely in the person of the traveller,[14] the PTD states that the traveller is not entitled to a price reduction if the organiser proves that the lack of conformity is attributable to the traveller. The difference between the two approaches is that the BGH already denies the existence of a deficiency if the non-perfomance is exclusively caused by the traveller, while the PTD still assumes a lack of conformity in this case but denies the traveller a right to reduction or compensation.
Based on the broad definition of lack of conformity in Article 3 para 13 PTD, it could therefore also be argued that the traveller is not entitled to a price reduction if the the entirety of the travel services is not performed for reasons attributable to the traveller, and that the organiser may therefore retain the full package price without deducting any savings or other income. This could also be supported by the fact that, according to the Air Passenger Rights Regulation,[15] air carriers can deny boarding for reasons relating to the passenger’s health or insufficient travel documents[16] without having to refund the fare in accordance with Article 4 in conjunction with Article 8 Air Passenger Rights Regulation.
Unlike in Austrian law,[17] the German legislator has not implemented Article 3 PTD verbatim. Hence, there is no definition of lack of conformity in the German Civil Code (BGB), but the deficancy of the package holiday is defined there in the tradition of German warranty law.[18] Even if that defintion also covers a failure to perform travel services, the traditional doctrine implies that the concept of deficiency is not applied if no service is provided at all.
The issue could therefore be seen as an exmaple of inconsistancy between national legal doctrines and Union law, which is to be interpreted autonomously, i.e. independently of the national legal systems.[19] If the BGH had taken into account these differences, it might have felt compelled to refer the matter to the CJEU.
[1] CJEU judgment of 7 Dec. 2010 in joined cases C-585/08 and C-144/09.
[2] Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC.
[3] LG Rostock, judgment of 20 Dec. 2024, 1 O 443/24.
[4] BGH judgment of 18 Feb. 2025, X ZR 68/24.
[5] LG Köln judgment of 13 Apr. 2023, 19 O 122/22.
[6] OLG Köln judgment of 19 Jun. 2024, 16 U 65/23.
[7] Sec 651h para 4 No 2 BGB; Article 12 para 3 lit b PTD.
[8] Sec 651h para 1 and 3 BGB; Article 12 para 1 and 2 PTD.
[9] ReiseRFD 2025, 81.
[10] German: „Reisemangel“.
[11] Sec 651i BGB.
[12] German: “Vertragswidrigkeit”.
[13] Defined in Article 3 para 4 PTD as ’the beginning of the performance of travel services included in the package’.
[14] BGH judgment of 18 Feb. 2025, X ZR 68/24, margin 23.
[15] Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.
[16] Article 2 lit j Air Passenger Rights Regulation.
[17] Sec 2 para 13 PRG
[18] Sec 651i para 2 BGB.
[19] See CJEU judgements C 26/62 – van Gend en Loos and C-6/64 – Costa/E.N.E.L.
