Shipping & Transport - Germany

Facts
Higher Court Ruling
Comment

A case decided by the Higher Regional Court of Munich in July 2008 dealt with the question of whether a notice of liability may be given by email or must be given in writing.(1)

Facts

The claimant had instructed a company to transport a container containing chemicals from the United Kingdom to Germany. The company itself entrusted the defendant with the organization of one leg of the transportation. The defendant delivered the container to the consignee. During the discharge of the container, it fell on the ground. The consignment was damaged and the chemicals were exposed to humidity.

Via email, an employee of the company informed the defendant and requested direct settlement from the defendant. According to the claimant, the defendant was thus held liable for the damages and the time bar was suspended. The defendant argued that emails are not a sufficient medium through which to suspend the time bar according to Section 439(3) of the Commercial Code, since to comply with this regulation the correspondence must be in writing and not via email.

In the first instance the Regional Court of Munich followed this argument and dismissed the claim because it had been time barred. The court ruled that the time bar had not been validly suspended by a notice of liability in the form of an email.

The claimant argued, among other things, that Section 439(3) of the code was the result of an error on the part of the legislature, since according to Section 438(4) of the code, notice of damage can be given via email. If notice of damage is permitted to be given in the form of an email, the claimant argued, then so too should emailed notice of liability be considered legitimate. Consequently, the time bar should also be suspended when a liability notice is delivered via email.

Higher Court Ruling

The Higher Regional Court of Munich found that the claim was time barred, because the time bar had not been validly suspended. There had been no error of the legislature. On the contrary: the legislature had decided that an emailed notice of damage is sufficient, given the necessities of modern transport, while notice of liability according to Section 439(3) of the code has a strong effect on the legal position in pursuing the claim and the identity of the claimant. It also has effect as evidence in court.

The court consequently held that the legislature had intentionally stipulated different requirements for different kinds of notice. Notice of damage can be given via email, but notice of liability – with its associated legal implications – cannot. Vice versa, the denial of liability must also be issued in writing. Hence, the Higher Regional Court of Munich dismissed the claim as time barred.

Comment

Although the economic reality of transport law makes it necessary to correspond via email, at least some of this correspondence still cannot be made with legal effect in this medium. The central legal importance of the time bar makes it necessary to obey the formal aspects of the code precisely. Thus, notice of liability and the denial of liability – for example, by the freight forwarder – must be in writing. The Higher Regional Court of Munich has clarified that no error was made in the drafting of Section 439(3) of the code; rather, the differing wording reflects the differing functions of notices within the code.

The notice of liability has a function as evidence in court proceedings. This function has always been well respected by the courts themselves. Although the transport industry increasingly communicates via new media, formal aspects cannot be ignored. It remains to be decided whether a scanned, signed copy of a liability notice sent by email is sufficient in the view of the German courts, but this is at least doubtful. It is advisable that such documents be sent in writing in order to comply with Section 438(4) of the code.

For further information on this topic please contact Jan Tjarko Eichhorn at Dabelstein & Passehl by telephone (+49 40 31 77 970), fax (+49 40 31 77 97 77) or email (j.eichhorn@da-pa.com).

Endnotes

(1) July 23 2008 – 7 U 2446/08 / TranspR 7/8 2008, pp 321.