"e damage in such cases falls outside the scope of duties conferred on the respective person as an agent of the organiser or one of his suppliers.63 Other than the previous PTD,64 Article 14 (3) doesn’t explicitly refer to a fault of a supplier of travel services included in the package as a reason for liability. Anyway, there is no doubt that such fault will make the lack of conformity attributable to a party who was connected to the provision of the travel services and therefore will not fall within the exemption. "is means that the organiser remains liable for all his suppliers and their sta%. In X v. Kuoni the UK Supreme Court held an organiser liable for a rape committed by an in-house electrician of the hotel who had pretended to guide a traveller to the reception.65 "e argument that the electrician was not supposed to provide services to hotel guests was not accepted: the pretence of providing the service of accompanying a guest fell within the scope of the ‘holiday arrangements’ which the organiser had undertaken to provide. In contrast, Austrian and German law focus on whether the direct injuring party acted in ful!lment of contractual obligations or merely on the occasion of ful!lling a contract.66 According to the wording of Article 14 (3), the exemption only applies if the third party’s harmful conduct was “unforeseeable or unavoidable”. "e use of the word “or” suggests that “unforeseeable” and “unavoidable” are only alternative requirements and it is su$cient for the exemption to apply if the third party’s harmful conduct was either unforeseeable or unavoidable. "e same wording is used in other language versions of the Directive67 with the exemption of the German version saying „weder vorhersehbar noch vermeidbar“ (neither foreseeable nor avoidable) and thus suggesting cumulative requirements. "is divergence may become subject to a reference for preliminary ruling of the CJEU. 4) “Due to unavoidable and extraordinary circumstances” "e term “unavoidable and extraordinary circumstances” reminds on a similar phrase used in the Air Passenger Rights Regulation, speaking of ““extraordinary circumstances which could not have been avoided even if all reasonable measures 63 OGH 13.02.2018, 5 Ob 4/18a. 64 Article 5 (2) of Directive 90/314/EEC on package travel, package holidays and package tours. 65 X v Kuoni Travel Ltd [2021] UKSC 34. 66 Sec. 1313a of the Austrian Civil Code (ABGB); sec. 278 of the German Civil Code (BGB). 67 Portuguese „imprevisível ou inevitável“; French: „imprévisible ou inévitable“; Spanish: „imprevisible o inevitable“; Dutch: „niet kon worden voorzien of voorkomen“; … 356 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
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