Oberster Gerichtshof, Beschluss vom 07/08/2008 6 Ob 133/08i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0060OB00133.08I.0807.000
Date: 2008-08-07
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82008AT0807(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, an Austrian company, was the owner of a Cessna aircraft, which it leased to a flying club. The latter gave the aircraft to the German defendant for annual maintenance. The claimant demanded damages from the defendant due to loss of the aircraft. The defendant had held that it was fit to fly, despite having recognised that the fuel pump was defective. On the return flight to the leasee, the aircraft crashed due to insufficient fuel supply. The claimant calculated its claim for damages according to the loss of revenue under the leasing agreement, which it had to terminate prematurely. It based the international jurisdiction of the Austrian courts on Article 5(3) Brussels I Regulation.
The appellate court affirmed international jurisdiction. The defendant lodged an appeal to the OGH (AT).
The OGH holds that the Austrian courts have jurisdiction. The claimant may invoke the tort forum of Article 5(3) Brussels I Regulation for its action. The claimant's damages claim is not contractual in nature. The defendant did not conclude the maintenance contract with the claimant, but rather with its leasee. Moreover, the legal basis for the claim of damages is the liable infringement of its property rights in the aircraft. The fact that the claimant calculated its damages according to the loss of revenue under the leasing agreement is without significance. The place where the harmful event occurred is in the district of the first instance court, since the aircraft crashed there. The objection of the defendant that the claimant had acquired the aircraft from it several years previously under a contract which stipulated a jurisdiction agreement in favour of a German court is irrelevant. The jurisdiction agreement only applies for that contractual relationship, but not, however, for claims in tort due to a subsequent destruction of the purchased property.