Arnecke Sibeth Dabelstein

Hamburg

ARNECKE SIBETH DABELSTEIN is an independent law firm with 40 partners and more than 150 attorneys at six locations (Frankfurt, Munich, Hamburg, Berlin, Leer and Dresden). It ranks among the top legal service providers in Germany.

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Updates

Aviation

Air freight overview
International | 21 April 2021

Many of the goods that arrive in stores or directly at people's homes every day have travelled a long way. The customer's wish for goods to be available as quickly as possible means that such goods are often transported across borders by air freight. National laws do not apply in such cases, at least not to a great extent. Instead, various air transport agreements establish comprehensive regulations of which parties must be aware.

Passenger versus service cart – typical aviation hazard?
Germany | 03 March 2021

The Celle Higher Regional Court recently found that the Hanover Regional Court wrongly rejected an application for legal aid by a passenger who claimed that a flight attendant had injured her knee with a service cart. However, it remains to be seen whether the damages will be reduced or excluded due to any contributory negligence on the part of the applicant.

EASA AOC: to cert or not to cert?
European Union | 17 February 2021

EU Regulation 2018/1139 enables airlines that operate in more than one EU member state under multiple air operator certificates (AOCs) to obtain a European Aviation Safety Agency (EASA) AOC. The EASA AOC enables airlines which have aircraft registered in different European cities to report to a single competent authority in relation to safety oversight and certification, which may significantly reduce costs.

Special features of airline insolvencies in Germany
Germany | 11 November 2020

Almost all airlines worldwide are having to deal with severe financial problems due to the consequences of fighting COVID-19 and the grounding of fleets for several months. Even Lufthansa considered filing for insolvency during negotiations with the German government about state aid. This article addresses German insolvency law in general and some special features regarding airline insolvencies.

BER: all set for grand opening
Germany | 30 September 2020

The new Berlin Brandenburg Airport (BER) looks set to open its gates on 31 October 2020. Even if BER opens as currently scheduled, the public damage caused by its troubled history will remain. It remains to be seen how the numerous delays have harmed the original idea for the airport given the fact that its infrastructure has already become a bit outdated without ever having been used.

MRO agreements from airlines' perspective – combating effects of COVID-19
Germany | 15 July 2020

Under long-term maintenance, repair and overhaul (MRO) agreements, airlines must usually pay a certain rate per flight hour to obtain engine or other component maintenance and repair services or just to have access to a certain spare parts pool. However, during the COVID-19 pandemic, most airlines have ceased their entire flight operations. This article addresses possible contractual clauses and statutory rights on which a claim to adjust payment obligations under an MRO agreement may be based.

E-ticket voucher not a valid ticket
Germany | 20 May 2020

A recent Eilenburg Local Court decision highlighted that a booking or reservation confirmation issued to a passenger by a tour operator with whom a flight has been booked should not necessarily be regarded as a confirmed booking under Article 3(2)(a) of the EU Flight Delay Compensation Regulation, even if the booking is referred to as an 'e-ticket voucher'. This decision underlines that the burden of proof for the existence of a confirmed booking will be borne by the passenger.

Damages claim dismissed under Montreal Convention
Germany | 13 May 2020

The Hamburg State Court recently rejected a damages claim arising from the cross-border transport of goods from the United States to Germany. The consignment was transported to Germany by air freight and was lost in a transhipment warehouse on the premises of Frankfurt Airport. The plaintiff claimed damages on the basis of German transport law and refused to settle the claim on the basis of the Montreal Convention.

No right to compensation for company tariff booking
Germany | 06 May 2020

The Bremen Local Court recently dismissed a compensation claim under the EU Flight Delay Compensation Regulation for a delayed flight booked using a company tariff. The court has thus put a double stop to possible claims by employees. If a booking is made using a company tariff, claims are generally excluded. Even if a booking is made using a general tariff, the travelling employee cannot bring forward a legal action.

Measures to assist airlines during COVID-19 crisis
Germany | 08 April 2020

Due to the COVID-19 crisis, all German airlines have had to significantly reduce their number of flights. In order to assist airlines, the government implemented a new law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedures (the COVID-19 Act). The new law is also relevant for aircraft lessors that have leased aircraft to German airlines and fear that in case of an airline's insolvency, they may have difficulties repossessing their assets.

Do German homepages and foreign providers have legal venue in Germany?
Germany | 01 April 2020

The Frankfurt/Main Higher Regional Court recently dismissed a claim for damages due to a ticket cancellation. The court rightly denied the international jurisdiction of German courts and confirmed that a legal person can be sued at the seat of its branch office. However, the prerequisite for this is that a dispute has a connection to the relevant branch office, which was lacking in this specific case.

Three takeaways from COVID-19 crisis for improved customer care
International | 25 March 2020

The impact of the coronavirus outbreak on the airline industry has been severe, with estimated losses of approximately $113 billion. The challenge for air carriers is how to handle a high volume of claims with a reduced workforce for an indefinite period. In that respect, the automation and digitisation of the claims handling processes can help airlines to handle more claims in less time and be flexible concerning their headcount and the volume of cases to be processed on a daily basis.

New year, new liability under Montreal Convention
International | 26 February 2020

As of 28 December 2019, the limitations of liability in the Montreal Convention were adjusted. The last adjustment was made in 2009. Prior to that, the liability amounts had remained unchanged for 10 years. The new limits of liability apply to damaging events during air transport which were carried out after the amendments came into force.

Airport charges take flight: airlines challenge fee structure
Germany | 05 February 2020

In a recent Federal Administrative Court case – in which the German court referred questions to the European Court of Justice (ECJ) – Deutsche Lufthansa AG achieved its goal of defending itself effectively against higher airport charges and underlined the possibility of a judicial review to examine the appropriateness of airport charges. However, the ECJ decision clarifies that, for the time being, there is no scope for free pricing under the EU Airport Charges Directive and thus no contractual freedom for airport users.

Security controls outside scope of airlines
Germany | 15 January 2020

A recent Erding Local Court judgment concerned a compensation claim after four passengers missed their flight due to a security alert at the airport. The court decided that there was no entitlement to compensation because there had been no refusal of carriage by the airline. Given the growth of passenger numbers and the resulting need for extra security staff, the decision sets a positive and correct precedent for the benefit of airlines operating in Germany.

Q&A on pitfalls and red flags when dealing with German MROs
Germany | 23 October 2019

As airlines must constantly strive to reduce maintenance costs, it is prudent to carefully review and negotiate contracts with maintenance, repair and overhaul organisations (MROs). As MROs often insist that contracts must be governed by the law of their home jurisdiction, this article addresses a selection of important issues that must be considered when negotiating so-called 'time and material' or 'power by the hour' contracts with German MROs.

Discounted tariffs: change of legal position?
Germany | 16 October 2019

A recent Frankfurt am Main Local Court decision is a useful reminder that in the event of an assertion of claims under the EU Flight Delay Compensation Regulation, the associated booking conditions must be considered when determining claim validity. Ultimately, travellers with access to corporate customer tariffs between their employer and the airline cannot claim compensation if their flight – whether for professional or private purposes – is delayed or cancelled.

Air fares can be displayed in multiple currencies
Germany | 18 September 2019

The Federal Court of Justice recently requested a preliminary ruling from the European Court of Justice on the question of whether airlines are in principle entitled to choose the currencies in which their air fares are listed. Under EU law, airlines that offer flights departing from EU airports must list passenger fares; however, whether airlines have the right to choose the currencies of said listings required further clarity.

Compensation must be offset against compensation for damages according to national law
Germany | 04 September 2019

The Federal Court of Justice recently issued a verdict stating that compensation under the EU Flight Delay Compensation Regulation must be offset against compensation claims made under national law that were caused by the same incident. The court's judgment is welcomed, as it prevents passengers from being overcompensated and provides greater legal certainty while balancing the interests of airlines and customers.

Aircraft tyre damage caused by foreign object on runway constitutes extraordinary circumstance
Germany | 03 July 2019

In a recent preliminary ruling, the European Court of Justice held that a foreign object such as a screw or nail on an airport runway which damages an aircraft represents an extraordinary circumstance under the EU Flight Delay Compensation Regulation. According to the court, such incidents exempt air carriers from the obligation to pay passengers compensation in the event of denied boarding and flight cancellation or long delays.

Droniq: DFS and Deutsche Telekom enter drone business
Germany | 29 May 2019

Commercial drone flights are expected to be a future market worth billions. Considering this prospect, the German air traffic control company Deutsche Flugsicherung and the largest telecoms provider in Europe, Deutsche Telekom, have established a joint venture, Droniq, to operate remote-controlled long-haul flights. Among other things, Droniq aims to establish a digital platform for all unmanned aerial operations and engage with security authorities and logistics companies seeking to deliver goods faster.

Opening of new Berlin Brandenburg International Airport at stake (again)
Germany | 22 May 2019

Recent reports suggest that the need to remedy defects in a faulty fire prevention system and other construction faults will further delay the opening of the new Berlin Brandenburg International Airport. For example, an internal report by TÜV Rheinland detailed 11,519 deficiencies in the airport's emergency lighting and safety power supply cables, which were replaced after the failed opening in 2012.

Providing valid travel documents considered passengers' secondary obligation
Germany | 08 May 2019

A 2018 Federal Court of Justice decision clarified that the secondary obligations arising from a contract of carriage between a passenger and an air carrier extend to the verification of the validity of the documents required for entry. However, checking that passengers have the correct documentation also remains an obligation for air carriers. Air carriers must therefore check the validity of passengers' documents before admitting them to a flight in order to rule out their own contributory negligence.

GATS impact on sale and purchase of German-registered aircraft under lease
Germany | 27 March 2019

In May 2018 the Aviation Working Group announced plans for a global aircraft trading system (GATS) to modernise the selling, buying and financing of leased aircraft and engines by making such transactions simpler and faster. The GATS will be fully electronic and use e-signatures, e-delivery of documents and a secure e-ledger to record transactions. As such, it is expected to reduce the time and costs required to change German aircraft registrations through the national aviation authority.

Aircraft registry requirements for foreign owners
Germany | 20 March 2019

If a third-country aircraft owner terminates the lease of a German airline but wants to keep the aircraft registered in Germany, it must enter into a new lease or similar agreement with an entity from an EU member state for at least six months. This article discusses why aircraft lessors and owners should carefully consider the requirements for keeping an aircraft in the German aircraft registry, particularly if its lease has been terminated.

Airport computer system failure may be extraordinary circumstance
Germany | 20 February 2019

The Federal Supreme Court recently ruled that the complete failure of an airport computer system may be considered an extraordinary circumstance. The court affirmed that airport system failures caused by technical defects which affect or suspend the functioning of technical equipment over a prolonged period are an external event affecting air carrier flight operations. Further, the monitoring, maintenance and repair of an airport's technical facilities lie outside the responsibility and competence of air carriers.

Strikes do not necessarily lead to extraordinary circumstances
Germany | 30 January 2019

The Federal Court of Justice recently held that a strike is considered an extraordinary circumstance pursuant to the EU Flight Delay Compensation Regulation only if its consequences cannot be averted by reasonable measures and make flight cancellation legally and actually necessary. This decision emphasises that determining whether airlines can avoid liability due to extraordinary circumstances must be assessed on a case-by-case basis.

Adequate causal link between delay and further disruptions required in code-share damages claim
Germany | 12 December 2018

The Hamburg Local Court recently dismissed a passenger's claim for damages based on denied boarding after the delay of a previous flight which had been operated by a code-share partner. The court was of the opinion that a code-share partner is not liable for every further disruption along the course of transportation. Rather, the right to claim damages requires an adequate causal link between the delay and the further disruption.

Munich Airport expansion suspended following state elections
Germany | 28 November 2018

Following Bavaria's state elections in October 2018, the legally binding plans to build a third runway at Munich Airport incurred significant delays. The state authorities recently agreed that the project will be suspended for five years, despite the fact that demand for aviation services in Munich – and internationally – continues to rise. The decision is a further example of how Germany's aviation industry will face additional, severe obstacles and challenges over the coming years.

New basic regulation will revise aviation landscape
Germany | 14 November 2018

The European Parliament and Council recently revised and replaced the basic regulation on common rules in the field of civil aviation. The new basic regulation promises a number of significant changes to the German aviation landscape over the next five years. Among other revisions, the Federal Aviation Office could lose some of its control over certain tasks relating to air operator certification, oversight and enforcement.

Digitisation gains ground: new government-funded app to support passenger right claims
Germany | 24 October 2018

The State Parliament of North Rhine-Westphalia recently decided to launch an airline passenger rights app. The new app is intended to promote consumer protection and help passengers to claim compensation easily via their mobile phones. It will be developed by the consumer advice centre and is expected to inform passengers of their rights, perform claim checks, offer suggestions on how and where to assert claims and actively support the process of claiming compensation.

Aircraft passenger rights under wet lease agreements
Germany | 10 October 2018

The Hamburg Regional Court recently referred to the European Court of Justice (ECJ) the question of which air carrier is the operating air carrier within the meaning of EU Regulation 261/2004 where the flight is operated under a wet lease agreement. The ECJ confirmed that air carriers which lease aircraft and crew to other air carriers under a wet lease agreement but bear no operational responsibility for the flights are not covered by the concept of 'operating air carrier' within the meaning of the regulation.

Airline denied compensation for costs caused by carriage of sky marshals
Germany | 03 October 2018

The Federal Court of Justice recently denied a claim for compensation regarding costs relating to the duty of German airlines to carry sky marshals, who are entrusted with the security of certain flights based on specific security considerations and by decree of the federal police. While the court's argument was legally stringent, it lacked sustainable reasoning as to why airline cost and security obligations should be more important than those of other transport means or sectors.

German drone regulation superseded by new EU aviation safety rules
Germany | 12 September 2018

A new European Council regulation provides basic rules for civil aviation security across EU member states. Such clarification is welcome news for Germany, where previously only fragmented rules and regulations on lighter unmanned aircraft and drones existed. However, as the EU regulation fails to address every issue relating to drone safety, Germany's existing drone regulation will continue to apply where no new rules are implemented or where Germany remains the competent authority.

Federal Constitutional Court rejects complaints against night flight regulations
Germany | 29 August 2018

The Second Chamber of the First Senate of the Federal Constitutional Court recently rejected three constitutional complaints for adjudication against the Federal Administrative Court's decision concerning night flight regulations affecting Berlin Schoenefeld Airport. In its decisions, the Federal Constitutional Court appropriately weighed the legal interests of affected property owners with those of the general public.

New package travel law affects air carriers
Germany | 08 August 2018

Germany recently implemented the EU Package Travel Directive by updating its travel legislation in the Civil Code. The new law provides that anyone offering at least two travel services is considered a 'package organiser'. The new regime applies to traditional tour operators and air carriers, which may be regarded as package organisers if they offer travel services in addition to flights. Air carriers should review their travel offers to avoid any unexpected obligations and liability.

Aircraft repossession in Germany
Germany | 11 July 2018

Although aircraft repossession is used only as a last resort, it remains unfortunately inevitable in some cases. Under German law, there are no self-help rights available to owners in order to take possession of an aircraft. It is possible to obtain interim injunctions or arrest orders before the German courts; however, those require a substantial amount of time to prepare court documents, as the entitlement to the claim must be shown to be prima facie.

Extended rights for passengers of connecting flights outside EU territory
Germany | 04 July 2018

A recent European Court of Justice decision presents a major change of case law in Germany with regard to the applicability of EU Regulation 261/2004 to connecting flights departing from an airport situated outside an EU member state. The decision has countered the longstanding position of the Federal Court of Justice, which held that the applicability of the regulation to each flight should be examined separately, even if the flights were operated by the same airline and were booked together.

No compensation for missed flight due to security check delays
Germany | 27 June 2018

In its latest decision, the Federal Court of Justice has reiterated that passengers are responsible for their own schedules and must allow sufficient time for airport security checks. The decision may lead to more flexible case-by-case judgments and suggests that airports, airlines and the state are not solely responsible for losses incurred from delays at airport security, but that every passenger has their own obligations and responsibilities.

Regional court prohibits HolidayPirates' error fare alerts
Germany | 13 June 2018

The Munich Regional Court recently addressed the promotion of error fares by an online portal for cheap flights, hotels and travel packages in Germany. The promotions, which had encouraged customers to book error fares for flights published accidentally by airlines, were deemed unlawful due to a deliberate obstruction of competition in contravention of the Act Against Unfair Competition. The court's decision is appropriate considering the high number of consumers reached by online portals.

Passenger rights and information obligations under wet lease agreement
Germany | 09 May 2018

The Federal Court of Justice recently clarified the liability of airlines with respect to passenger rights and information obligations when a flight is operated under a wet lease. EU Regulation 261/2004 defines an 'operating air carrier' as an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person having a contract with that passenger. The Federal Court of Justice held that in case of a wet lease, the lessee must be regarded as the operating air carrier.

Passenger's right to refund restricted
Germany | 18 April 2018

The Federal Supreme Court recently issued a decision regarding the right to a refund of the ticket price following the cancellation of non-refundable tariffs. The decision highlights that a passenger can waive his or her right to cancel a ticket so long as that passenger makes an informed decision. This secures an air carrier's flexibility in offering a wide range of different ticket prices and ensures lively competition.

VAT regarding international passenger transport services
Germany | 14 March 2018

In Germany, a carrier is, in general, value added tax (VAT) liable along the domestic part of the flight route. However, it is possible for the carrier to apply for VAT remission according to the VAT Act. If the carrier is a German entity, the remission applies without further requirements other than an invoice without VAT. In contrast, if the carrier is a foreign entity, the tax relief must be mutual (ie, the state of the registered office of the foreign carrier must grant tax relief to German carriers as well).

Police begin using drones
Germany | 14 February 2018

The State of Hesse has decided to implement the use of drones. For this purpose, the police acquired four drones to help with their work in the region starting in February 2018. In order to operate the drones, each of the eight future drone pilots must complete a two-week workshop containing theoretical and practical modules. The drones will be used at accident sites and crime scenes in particular.

Court rejects complaints against new airport's planned flight routes
Germany | 20 December 2017

The Federal Constitutional Court recently rejected four constitutional complaints for adjudication against a decision concerning Berlin-Schoenefeld Airport. Following a deviation from the airport's originally envisaged flight routes, the plaintiffs had sought an annulment of the original plan approval order. The court held that the difference between the planning procedures for the airport expansion and the determination of the flight routes raised no constitutional concerns.

Unaffected flights cannot be used in calculation of compensation payments
Germany | 06 December 2017

A recent Erding Local Court case called into question the distance that must be taken into consideration when calculating compensation according to Article 7(1) of EU Regulation 261/2004. The court interpreted Article 7 in line with settled case law and held that only the disrupted flights that had affected the overall delay of the passenger should be included in the calculation of the distance. Therefore, where a reservation consists of several flights, these are to be considered separately.

No compensation for rescheduling airway slot
Germany | 29 November 2017

In a recent case, the Cologne Regional Court ruled that if the flight in question was delayed due to a Eurocontrol rescheduling of its airway slot, passengers had no right to compensation pursuant to EU Regulation 261/2004, irrespective of whether the rescheduling was based on reasons which, when considered individually, would result in extraordinary circumstances.

Will Berlin Tegel Airport remain open?
Germany | 18 October 2017

A recent non-binding referendum asked Berlin citizens whether they should demand that the Senate give up its closure intentions and take all measures necessary to ensure the indefinite operation of Berlin Tegel Airport. The vote indicates that approximately 56% of Berliners voted 'yes' and support keeping Tegel open. Local politics must now find a way to deal with Berlin's wish to maintain two airports.

No compensation for cancellation after re-routing
Germany | 20 September 2017

The Dusseldorf Local Court recently decided that passengers do not have a right to compensation if, according to the meaning of Articles 7(2) and 8 of EU Regulation 261/2004, an alternative flight is cancelled. The court argued that the regulation differentiates between a 'flight' as subject of the transportation contract and an 'alternative flight' as a measure of assistance. Consequently, the cancellation or delay of an alternative flight gives no right to compensation.

ECJ upholds passengers' rights over additional fees
Germany | 06 September 2017

The Berlin Regional Court recently upheld the application of a private German association for the advancement of consumer rights, which claimed that a German air carrier's online booking system had violated EU Regulation 1008/2008. Following the dismissal of the appeal brought by the carrier before the Berlin Upper Regional Court, the airline lodged a remedy of review before the Federal Court of Justice, which stayed the proceedings and referred the case to the European Court of Justice for a preliminary ruling.

Credit card surcharges for flight bookings banned
Germany | 09 August 2017

Parliament recently passed an act incorporating the EU Payment Services Directive into German law. In line with the development of cashless currency being among the most frequently used payment methods, the act was passed to facilitate the use of electronic payment methods. To achieve a level playing field for all market participants, the act will also have a considerable impact on the aviation industry. Nowadays, online bookings via credit card are airlines' daily business.

Drones – required and advisable insurance
Germany | 05 July 2017

According to the amended Air Traffic Act, drones are recognised as aircraft. However, only unmanned aerial systems (UAS) that are not used for hobby or recreational purposes qualify as aircraft. Authorisation to fly will be granted if operation of the UAS does not present a risk to air safety or order and if rules on data protection and privacy are not violated. The main prerequisite for obtaining a flight permit is the coverage of the respective risks by liability insurance.

Airport directly liable for passenger missing flight due to slow security checks
Germany | 12 April 2017

The plaintiff in a recent case claimed reimbursement from Munich Airport, claiming that it had caused him to miss his flight due to a slow security check. The Erding Local Court held that airport staff must proactively open further lanes in security and urge passengers who are in danger of missing their flights to move along the queue. However, the court also noted that the plaintiff should have left the queue and drawn attention to the approaching boarding time as soon as he risked missing his flight.

New regulation on drones planned in Germany
Germany | 22 March 2017

The use of drones, whether for private or commercial use, is a rapidly developing trend. The use of unmanned airspace causes potential risks, but other legally critical aspects relating to privacy, security and the environment must also be considered. The government recently introduced a draft regulation to create sufficient regulations to deal with these risks by amending the existing fragmented provisions and establishing rules to liberalise the commercial use of drones.

New information duties for air carriers according to Consumer ADR Act
Germany | 15 March 2017

As of February 1 2017 companies and entrepreneurs, including air carriers, must comply with new information duties with regard to alternative dispute resolution (ADR). While ADR participation is voluntary, a peculiarity applies for air carriers. According to the Air Traffic Act, airlines are obliged to participate in ADR. If an air carrier does not voluntarily join the private conciliation body, it must participate in the government ADR process.

Rules determining passenger reimbursement due to downgrading
Germany | 22 February 2017

The European Court of Justice (ECJ) recently decided on the interpretation of EU Regulation 261/2004 and the calculation of a reimbursement owed to a passenger who was downgraded on a flight from first class to business class. The ECJ decided that the regulation must be interpreted as meaning that where a passenger is downgraded on a flight, the price for determining reimbursement is the price of the flight on which the passenger was downgraded.

Expiration of two-year period not suspended if legal action filed with non-competent court
Germany | 25 January 2017

The Berlin Regional Court recently decided a case in which the plaintiff claimed compensation for damages that were said to have occurred during air transport. The plaintiff had filed a legal action at his home court in Hamburg, but the matter was referred to a Frankfurt court because Frankfurt Airport was involved. However, the Frankfurt court was also not competent to hear the case. The Berlin Regional Court received the case after the expiration of the two-year limitation period under the Montreal Convention.

Validity of vouchers given as goodwill gesture may be limited to one year
Germany | 21 December 2016

The Frankfurt Local Court recently decided that an airline may restrict the validity of ticket vouchers given as a goodwill gesture. Following a delayed arrival, the defendant offered the plaintiff a free round-trip ticket voucher valid for one year. The plaintiff was unable make use of the voucher within the year, so requested that it be extended. The defendant refused. As the voucher's time limit was part of the agreement, the plaintiff was unable to claim damages from lack of use.

Property irregularity report insufficient as timely notice of delayed baggage complaints
Germany | 02 November 2016

According to a recent Frankfurt Local Court decision, a property irregularity report filed in the case of delayed baggage does not suffice as a timely notice of complaint, as set out in the Montreal Convention. The court ruled that a property irregularity report informs the airline only about missing baggage, and not about the expected claim for damages.

Compensation for damages caused by strike in violation of industrial peace obligation
Germany | 24 August 2016

The Federal Labour Court recently confirmed earlier judgments denying compensation to a third party as a consequence of a strike. Through this latest decision, the court has strengthened its jurisdiction by denying compensation to third parties affected by unlawful strikes. In addition, the court has clarified that a strike becomes unlawful in total even if only a part of its goals violate the industrial peace obligation.

Drones: only hot air? Status of activities in logistics market
Germany | 10 August 2016

A number of projects and applications for drone use in transportation and delivery are underway, including by Deutsche Post DHL, which recently completed a three-month test period using a parcelcopter for business-to-customer and customer-to-customer parcel delivery. Plans are also underway to create specialised ground-based drones, and survey results have shown that approximately 13% of customers have a specific interest in drone delivery.

Tax treatment of free or discounted flights granted by air carriers
Germany | 27 July 2016

Air carriers that grant free or discounted flights to employees provide a monetary benefit that is subject to wage tax. The tax basis for these staff flights is the usual final price reduced by the regular discount granted at the place of issue. The supreme tax authorities recently issued new averages for air mileage for 2016 to 2018. The averages apply if no restrictions exist in the reservation status.

Burden of proof regarding airline booking acceptance lies with passenger
Germany | 29 June 2016

The Frankfurt Local Court recently decided that a passenger's claim for compensation pursuant to EU Regulation 261/2004 requires an accepted reservation by the airline. Passengers have no right to compensation if the airline has not accepted the reservation and the travel agency has issued incorrect booking confirmation. The burden of proof regarding the airline's booking acceptance rests with the passenger.

New legislative framework for civil drones in Germany?
Germany | 08 June 2016

Due to the fast-growing number of drone operations, the minister of transport recently announced the revision of the rules governing the use of civil drones in Germany. According to the minister, such use is not sufficiently regulated. The envisaged rules aim to reduce hazards in the airspace and on the ground, while new legislation is being drafted for commercial and private drone use.

Flight distance relevant to amount of compensation
Germany | 18 May 2016

The Landshut Regional Court recently dealt with the issue of calculating distance relevant to the amount of compensation pursuant to EU Regulation 261/2004. The court ruled that the decisive factor in determining compensation is the immediate distance between the point of departure of the delayed flight and the passenger's final destination. Possible flight routes to and from transit airports should not be considered.

Federal Fiscal Court rules on taxation of German-resident pilots
Germany | 04 May 2016

The Federal Fiscal Court ruled on the taxation of pilots resident in Germany working for an Austrian carrier on board aircraft that are operated internationally. The court had to decide whether, and if so in what proportion, the salary of a pilot living in Germany must be taxed under the double taxation agreement between Austria and Germany based on either the exemption method or the imputation method.

Federal Fiscal Court approves air traffic tax
Germany | 30 March 2016

Commercial passenger flights departing from German airports have been taxed since the implementation of the Air Traffic Tax Act in 2011. The tax is set according to the flight destination and the number of passengers transported. According to the legislature, the act is supposed to create incentives for environmentally friendly behaviour. The Federal Fiscal Court recently confirmed that the tax is in line with the Constitution and EU law.

Air carriers can demand full air-fare payment at time of booking
Germany | 23 March 2016

It has been widely debated whether an air carrier is legally allowed to claim full payment of the ticket price from a passenger as early as at the time of the flight booking. The Federal Court of Justice recently decided on three cases brought by a consumer association against two domestic carriers. It held that a pre-payment clause would not present an unreasonable disadvantage to the passenger and would not be contrary to the fundamental principles of law.

Airline not obliged to reschedule connecting-flight departure
Germany | 10 February 2016

The Dusseldorf Regional Court recently ruled that if a flight is delayed due to severe weather conditions and a connecting flight is missed as a result, passengers have no right to compensation because the extraordinary circumstances defence applies. The court does not regard the frequency of severe weather conditions as a decisive factor with regard to extraordinary circumstances.

Berlin's new airport: an endless story?
Germany | 27 January 2016

Berlin's new international airport is likely to face further delays due to the insolvency of Dutch engineering group Royal Imtech's German division and problems with the construction of the new roof, which led to an immediate halt in building. Even though construction has resumed, rumours remain that further postponement of the start date for airport operations in mid-2017 will be required due to ongoing difficulties.

No damages to third party after unlawful strike?
Germany | 14 October 2015

The Federal Labour Court recently denied compensation to a third party as a consequence of a strike. The court dismissed a complaint from four airlines against a strike which had been initiated by the trade union due to cancelled, delayed or redirected flights. The court clarified that in the case of an unlawful strike against an employer, the trade union can be held liable for damages caused. Further developments are anticipated.

Last call for airline energy audits – is your airline compliant?
Germany | 07 October 2015

Germany has recently transposed the EU Energy Efficiency Directive into national law. Affected airlines must undergo an energy audit by December 5 2015. For airlines operating flights to and from Germany, fuel consumption must be taken into account. Airlines which fail to carry out or perform an energy audit (or which do not conduct it properly, completely or in time) may be fined up to €50,000.

Does the Minimum Wage Act affect foreign airlines?
Germany | 13 May 2015

The Minimum Wage Act lacks an answer to the question of whether it applies to foreign airline personnel who are not based in Germany. The wording suggests that crews are entitled to the German minimum wage when deboarding and boarding passengers, but the act does not apply in certain cases. The act remains open for interpretation and case law has yet to be established.

No jurisdiction for German courts over flights booked via German website
Germany | 28 January 2015

The Frankfurt Regional Court recently dismissed a claim on grounds of inadmissibility. The German plaintiff booked flights with a non-European airline with a local office in Frankfurt via the German-language pages of the airline's international website. The court clarified that the German version of an international website does not create the impression that a contract has been necessarily concluded with the local office.

Landmark first-instance decision for non-community carriers
Germany | 26 November 2014

The Hamburg Local Court has recently ruled on a case where passengers missed a connecting flight outside the European Union because the feeder flight from Germany to the airline's hub outside the European Union was delayed. The court stated that it makes no sense to treat cases in which a community carrier operates both flights differently from those in which the operating carrier for both flights is not a community carrier.

Air Traffic Tax Act before the Constitutional Court
Germany | 30 July 2014

The Constitutional Court's first senate recently heard a case on the constitutionality of the Air Traffic Tax Act. The purpose of the air traffic tax is to generate €1 billion of revenue annually to create a steering effect towards more environmentally friendly behaviour in the aviation industry. The court admitted that the tax presents a financial burden to airlines. However, this is not enough to regard the act as unconstitutional.

Tour operators' terms and conditions regarding flight times
Germany | 11 June 2014

The Federal Court of Justice recently deemed two clauses in the terms and conditions of a tour operator regarding flight time changes to be invalid. The court found the clauses to be unreasonable to the traveller. However, it did not determine what a valid clause would look like or what a reasonable timeframe for amendments to flight times would be.

Online bookings – when and how must final prices be indicated?
Germany | 30 April 2014

In a recent case, the Federal Court argued that EU Regulation 1008/2008 does not specify an exact time when the final price of air services must be indicated when booking on a computerised booking system. The regulation aims to enable consumers to effectively compare prices of different air carriers. The provision is meant to guarantee information and transparency and strengthen consumer protection.

Application for refund of energy tax
Germany | 05 March 2014

The Energy Tax Law provides that fuel supplied to commercial aircraft may be granted tax-exempt status. However, Germany is the only EU country in which exemption is not automatically granted to all commercial flights. Instead, customs permits are expressly required. Recent audits of EU air carriers have shown that airline accounts departments are often unaware of the need to apply for an exemption from the tax.

Times are changing for tour operators – but not passengers
Germany | 29 January 2014

The Federal Court of Justice recently deemed two clauses in the general terms and conditions of a tour operator regarding flight time changes to be invalid. The defendant tour operator's terms and conditions stipulated that the determination of flight times rested with the tour operator issuing the travel documents. The court deemed the clauses invalid, as they put passengers at an unfair disadvantage.

German pilots' union Cockpit protests against adjustment of flying times
Germany | 13 November 2013

The European Commission has issued new proposals in relation to the planned harmonisation of regulations governing flight duty hours and resting times. German pilots' union Cockpit believes that the decision will jeopardise safety in favour of monetary interests. Cockpit has protested against the adjustment of flying times and has indicated that it is considering taking legal action in this regard.

Flight routes still under dispute at Rhein-Main Airport
Germany | 18 September 2013

The Kassel Higher Administrative Court recently announced its ruling on claims filed by local government authorities and inhabitants of South and Rhine Hessen affected by the decision in favour of a southerly bypass. The court ruled that independent operation of the southerly bypass by means of a radio navigation system was not feasible and there was no evidence that it would become feasible in the foreseeable future.

Compensation for delay resulting in missed flight connections
Germany | 07 August 2013

The Federal Court of Justice has held that passengers of a delayed feeder flight which falls within the scope of Article 3 of EU Regulation 261/2004 are entitled to compensation if the delay causes them to miss their connecting flight and results in them reaching their final destination with a delay of three hours or more. This applies regardless of whether the connecting flight falls within the scope of the regulation or was delayed.

Air traffic tax: the next round
Germany | 05 June 2013

Pilots' union Cockpit recently lodged a petition with Parliament regarding the abolition of air traffic tax. The tax has led to significant distortion of competition, to the detriment of German airlines and airports. The petition has been successful, and as a result Parliament's Petition Committee may schedule a public debate on the petition.

Non-applicability of regulation to connecting flights outside EU territory confirmed
Germany | 01 May 2013

The Landshut Regional Court recently ruled that each segment of a flight involving a scheduled stopover had to be regarded separately for the purposes of determining the applicability of EU Regulation 261/2004. The decision is important for third country (non-EU) air carriers which offer flights from EU countries via a hub outside the European Union to the rest of the world.

ECJ broadens application of Sturgeon
Germany | 13 March 2013

There has been a string of successful decisions in Germany regarding the requirement for delayed departure within the meaning of Article 6 of EU Regulation 261/2004 in order to seek compensation under the regulation further to the European Court of Justice (ECJ) decision in Sturgeon. A recent ECJ ruling in a case referred to it by the German Federal Court of Justice has thus come as something of a blow.

No compensation for delay on connecting flight outside EU territory
Germany | 20 February 2013

The Federal Court of Justice recently held that passengers were not entitled to compensation if the delay occurred on a connecting flight departing outside EU territory. The court stated that the meaning of the term 'flight' could not be determined by national air law, but was defined autonomously by EU Regulation 261/2004.

Will the Air Traffic Tax Act be abolished in 2013?
Germany | 19 December 2012

The federal state of Bavaria recently brought forward a motion aiming to abolish the Air Traffic Tax Act by Autumn 2013. The motion was approved by the Federal Council; as a result, the government has been requested to initiate a legislative procedure regarding the abolishment of the act.

No discrimination of male pilots obliged to wear uniform cap within airport premises
Germany | 21 November 2012

According to a recent decision of the Cologne Regional Labour Court, a provision in a works agreement stating that male pilots were obliged to wear a uniform cap in the public areas of the airport premises was not deemed discriminatory under the General Act on Equal Treatment. The court left it unclear whether the relevant provisions were to be interpreted narrowly or broadly.

No mineral oil tax exemption for corporate aircraft
Germany | 05 September 2012

The Federal Finance Court has ruled that the mineral oil tax exemption may be granted to air carriers only. However, it did not address the potential overlap of the EU Energy Taxation Directive and the EU Emissions Trading Scheme. As the exemption from the scheme for commercial air carriers does not apply to non-commercial operators (ie, undertakings with corporate aircraft), such operators will be charged twice.

No compensation for flights cancelled due to threatened pilot strikes
Germany | 29 August 2012

The Federal Court of Justice has ruled that if an airline's flight schedule cannot be operated in full or to a significant extent due to a strike, passengers have no right to compensation pursuant to EU Regulation 261/2004 because the 'extraordinary circumstances' defence applies. However, the airline must take reasonable measures to minimise the effects of a strike.

Customs clearance is responsibility of consignor, not carrier
Germany | 22 August 2012

Attempts are frequently made to shift all responsibility in connection with transport arrangements onto the forwarder/carrier. Thanks to a recent Darmstadt Regional Court judgment, clarity has now been established: a consignor is not entitled to shirk these responsibilities or to assert claims against the air freight forwarder should import approval be denied.

Alternative dispute resolution for passenger claims
Germany | 08 August 2012

The Federal Cabinet has adopted draft legislation on the introduction of conciliation bodies for airline passengers, with the aim of allowing passengers to make claims against airlines in a fast, cheap and straightforward manner. However, the plans would be yet another setback for the industry, particularly because airlines would have to bear the costs.

Advocate general affirms controversial Sturgeon decision
Germany | 20 June 2012

In an opinion requested by the Cologne Local Court and a UK court, the advocate general of the European Court of Justice (ECJ) has confirmed the ECJ's much-debated Sturgeon decision, which held that passengers whose flights are delayed, and who reach their final destination three hours or more after the arrival time originally scheduled by the air carrier, may rely on the right to compensation pursuant to EU Regulation 261/2004.

Sharp increase in administrative fine proceedings
Germany | 06 June 2012

In response to an inquiry initiated by Alliance 90/The Green Party, the government has revealed the latest statistics on the number of administrative fine proceedings and penalty notices imposed by the Federal Aviation Office (LBA). In 2011 the LBA initiated more proceedings than ever before; particularly significant is the increase for German air carriers. The number of penalty notices has also increased drastically.

Airline compensation claim valid only if delay occurred on both departure and arrival
Germany | 09 May 2012

The Nürtingen local court recently confirmed that, in relation to claims for compensation brought pursuant to EU Regulation 261/2004, a delay can have the same legal consequences as a cancellation only in cases where delays occurred both on departure and on arrival.

Federal Administrative Court upholds flight ban at Frankfurt Airport
Germany | 02 May 2012

The Federal Administrative Court has announced its long-awaited decision on the night curfew at Frankfurt International Airport. The court mainly affirmed the first instance ruling by prohibiting exceptions to the night curfew during the core night hours of 11:00pm to 5:00am. While the court's ruling ends the long-running conflict, the economic consequences for Frankfurt and the Rhine-Main region could be severe.

Airlines sue air traffic controllers' union for unlawful strike threats
Germany | 29 February 2012

Three airlines have filed lawsuits against the German union of air traffic controllers for damages related to allegedly unlawful strike threats. Never before has such a lawsuit been filed in Germany, which is based on the argument that an illegal threat to strike has caused financial losses to third parties. A condemnation of the union would have a significant impact on future decisions of German unions to strike.

Air traffic tax cuts disappoint industry players
Germany | 26 October 2011

The forthcoming air traffic tax cuts represent a good opportunity to even out the playing field for German airports and passengers. However, in light of the imminent inclusion of aviation in the European Emissions Trading Scheme, the German legislature would be well advised to consider abandoning the tax all together.

ECJ rules on retirement age of German pilots
Germany | 05 October 2011

According to a recent European Court of Justice, the provision in the standard collective agreement for German air carriers which requires that pilots be retired from working as crew members automatically when they reach the age of 60 constitutes undue age discrimination and violates the EU Equality Directive. The court therefore held that the relevant provision in the collective agreement was invalid.

Insurance

Court rules on policyholder's claim against insurer for information on stored personal data
Germany | 04 May 2021

In 2019 the Cologne Higher Regional Court issued a decision on the scope of the right to information under the EU General Data Protection Regulation that has enormous implications for insurers that collect or process personal data. The court held that the right to information covers not only the so-called 'master data' in the relationship between the insurer and the policyholder, but also telephone and conversation notes that the insurer has stored, used and processed with reference to the policyholder.

Do not leave your package unattended
Germany | 06 April 2021

In 2019 the Stuttgart Regional Court considered a dispute about claims for damages following a vehicle transfer from Turkey to Germany. Following a traffic accident, the plaintiff delivered the vehicle to a workshop and notified the defendant of damage to the roof of the vehicle and the loss of various items that were allegedly in the vehicle. The court held that the defendant was not liable for the alleged theft of the items.

How will BaFin regulate the conduct and run-off of cross-border activities post-Brexit?
Germany | 23 March 2021

The Federal Financial Supervisory Authority has issued a general administrative act regulating the conduct and run-off of cross-border business of insurers in the United Kingdom, Northern Ireland or Gibraltar. What does this mean for insurers based in the United Kingdom, Northern Ireland or Gibraltar in respect of their cross-border activities in Germany and for German insurers in respect of their cross-border activities in the United Kingdom?

Court rules on assured's obligation to notify insurer of risk-relevant fact prior to conclusion of contract
Germany | 02 February 2021

In a recently published decision, the Federal Court of Justice ruled on the obligation of an assured to notify its insurer of a risk-relevant fact prior to the conclusion of the insurance contract. The decision clarifies the important distinction of cases in which there is an objective breach of duty and cases in which there is not. Negligence is relevant only where there is an objective breach. If there is no objective breach, as found in this case, fault is irrelevant.

Business shutdown insurance and COVID-19: update on the most controversial topic of 2020
Germany | 26 January 2021

The first court decisions concerning business shutdown insurance are now available. The key questions in this respect include whether COVID-19 qualifies as a communicable disease, whether a business that has ceased business operations on a small scale (eg, which now offers only delivery services) qualifies as being 'shut down', and how loss will be calculated and what benefits or compensation insurers must ultimately provide depending on actual loss.

Exclusion of transport risk in insurance policies
Germany | 22 December 2020

In a 2018 decision, the Federal Court of Justice (BGH) clarified the requirements for valid and duly executed insurance risk exclusions for the export of goods, which are of significant practical relevance. The BGH's decision sets strict requirements for the transparent and valid wording of risk exclusion clauses in insurance contracts. Those principles, which have been confirmed within the scope of transport insurance, apply to all insurance sectors.

Courts decide whether insurance broker with 100% of shares held by insurer was independent and neutral
Germany | 03 November 2020

According to German law, there is a strict separation between brokers and agents; German intermediaries must decide whether they wish to act as brokers on the side of policyholders or as agents as representatives on the side of insurers. They cannot act as both. The Munich Higher Regional Court recently ruled on the matter and the verdict was rather surprising.

Yacht hull insurance: coverage if insured was unaware that yacht was unfit to sail
Germany | 06 October 2020

In 2019 the Flensburg court considered damage to a sailing yacht which had occurred during a sailing regatta (ie, a series of boat races) in 2010. The judgment strengthens the legal position of insureds with yacht hull insurance. It highlights that insurers have the onus to prove that the insured was aware of the unseaworthiness when the voyage commenced. It is not enough to prove the unseaworthiness – insurers must prove that the owner was aware thereof.

In hot water: court rules on claim for cover against liability insurer
Germany | 01 September 2020

In 2018 the Celle Higher Regional Court ruled on a claim for cover against a liability insurer relating to a fire on a yacht that had also damaged other items. The judgment confirms – and well illustrates – the so-called 'separation principle' applicable under German liability insurance law. Liability insurers may learn from this judgment that careful consideration must be given to the reasons for which cover is denied; they could be forced to cover and indemnify for unjustified liability claims.

German Insurance Association releases amended sanctions clause
Germany | 25 August 2020

The German Insurers Association (GDV) recently released a new version of its sample sanctions clause. This article highlights the background of the changes and the current status of EU and German anti-boycott legislation. Insurers which use the GDV clause should keep an eye not only on the development of US sanctions against Iran, but also on US sanctions in general.

Insurance premium tax: Federal Ministry of Finance issues guidelines on determination of policyholders
Germany | 07 July 2020

The Federal Ministry of Finance recently issued guidelines on the determination of policyholders who are persons of relevance for insurance premium tax (IPT) as their registered office in Germany might trigger IPT. These guidelines are especially relevant for vessel and aircraft insurance and English-language policies.

Federal Court of Justice rules on policyholder's insolvency under D&O insurance policy
Germany | 16 June 2020

The Federal Court of Justice recently examined the consequences of a policyholder's insolvency under a directors' and officers' (D&O) insurance policy. The ruling has clarified that the insured person's rights under a D&O insurance policy remain the same irrespective of the policyholder's insolvency. As a policyholder's insolvency often leads to liability claims against the (former) management, such situation is one of the most important matters for D&O insurance policies to cover.

Non-payment of insurance premium – legal consequences during COVID-19 pandemic
Germany | 12 May 2020

In response to the COVID-19 pandemic, Parliament recently passed an act whereby insurers, under certain circumstances, despite non-payment of an insurance premium, are temporarily prohibited from either terminating the insurance contract or refusing cover. Further, the act grants consumers and micro-enterprises a temporary right to refuse performance in the context of contracts for essential continuing obligations, including insurance contracts.

Business shutdown insurance in case of business interruption during COVID-19 crisis
Germany | 05 May 2020

One of the biggest risks for companies is business interruption. Companies can insure this risk under so-called 'business interruption' insurance policies; however, these policies generally provide cover only if the business interruption is the result of an insured property loss. The situation is completely different with so-called 'business shutdown' insurance, which is – at least so far – uncommon.

Insurability of corporate fines: new draft law's implications for insurance industry
Germany | 31 March 2020

In 2019 the Federal Ministry of Justice and Consumer Protection presented its draft bill for a new and independent law on corporate penalties. Pursuant to the draft bill, considerable fines may be imposed not only on the persons involved in wrongdoing, but also on companies. This will significantly affect insurance cover, especially in the areas of professional indemnity and directors' and officers' insurance.

Small differences matter: pre-contractual duty of disclosure and lack of knowledge due to negligence
Germany | 03 March 2020

In a recent decision, the Federal Court of Justice once again stressed the difficulties in and the importance of obtaining a precise legal subsumption of the established facts where the pre-contractual duty of disclosure is concerned. The decision is relevant for all insurance contracts that fall under the Insurance Contract Act, although special regulations exist.

Court rules on representative action undertaken by insurance agent on insurer's behalf
Germany | 04 February 2020

The Hamburg Court of Appeal has expressly discarded an earlier obiter dictum, ruling that a representative action (ie, an authority to pursue the claim of another in one's own name) by an insurance agent on behalf of the insurer stops time only if the agent disclosed its authority and the name of the represented insurer when filing the action. A later disclosure of the authority – which existed at the time of lodging the claim – in court has no retroactive effect and does not interrupt the limitation period.

Insurers' duty to advise assureds in cases of amended general terms and conditions
Germany | 21 January 2020

A recent Hamm Higher Regional Court decision concerning insurers' duty of advice continues the previous case law in respect of partly favourable and partly unfavourable new conditions or conditions that are merely more favourable for the policyholder. The case highlights the question of whether insurers have a duty to advise assureds of amendments made to the general terms and conditions in their insurance policies, particularly with regard to linguistic amendments.

Insurers beware: CMR jurisdiction rules apply to direct claims against carriers' liability insurers
Germany | 24 December 2019

The Federal Court of Justice recently ruled on the appropriate jurisdiction regarding a head carrier's insurer's direct claim against subcarriers' liability insurers. The first and second instances had affirmed their international jurisdiction and admitted the direct claim against the liability insurer on the basis of Article 31(1)(1)(b) of the Contract for the International Carriage of Goods by Road. The Federal Court of Justice confirmed this approach.

Proximate cause of grounding in bad weather after engine problems and insurers' right to information
Germany | 03 December 2019

The Bremen Court of Appeal recently held that the proximate cause of a vessel's grounding after its main engine had cut out was the bad weather, rather than the engine problem. Further, the insurer's right to request information from the assured was limited to information relating to the proximate cause and did not extend to remote causes. This decision is highly questionable in respect of both causation and insurers' right to information.

Insurance law aspects of recourse claims against subcarriers
Germany | 08 October 2019

The Dusseldorf Higher Regional Court has ruled on the insurance law aspects of recourse claims against subcarriers. This decision demonstrates that an insured's entitlement to claim compensation can be safeguarded if the insurer supplies a written declaration authorising the insured to continue the recourse proceedings, irrespective of whether the insurer has compensated the insured.

Suspension of limitation period in coverage dispute
Germany | 03 September 2019

German law provides several circumstances in which the limitation period in an insurance coverage dispute may be suspended, subject to the case facts. However, to avoid the risk of an insurance claim becoming time barred, assureds should pursue claims diligently. A recent case before the Dresden Higher Regional Court is a useful reminder that suspending limitation periods due to negotiations requires that the insurer is actively involved in the matter.

Subsidiary clauses in mandatory vehicle insurance contracts
Germany | 06 August 2019

Motor vehicle liability insurance is mandatory for vehicles admitted to travel on public roads in Germany (the same applies to non-motorised trailers and semi-trailers) and covers damages caused by the policyholder to third parties or their vehicles. However, a Federal Court of Justice decision emphasises that subsidiary clauses in mandatory insurance contracts which limit liability are void unless such exemptions are legally permitted or agreed on by the insurers.

Pleasure yacht insurance: navigating without up-to-date charts and proper voyage plan
Germany | 02 July 2019

In a notable hull insurance case, the Celle Court of Appeal dismissed an action brought by an assured pleasure yacht owner who had been sailing on the Baltic Sea and ran aground. The case facts suggest that assureds are often unaware of the impact that outdated chart materials can have on hull insurance and liability cover.

Prohibition on passing on commission in reinsurance context – exemption uncertainty
Germany | 21 May 2019

The controversial prohibition on passing on commission forbids brokers and insurers from granting or promising special remuneration to policyholders, insured persons or beneficiaries under an insurance contract. According to the legislature, the prohibition was upheld during the implementation of the EU Insurance Distribution Directive into national law over the past three years. However, whether reinsurance remains excluded from the prohibition is unclear.

Shipping & Transport

CMR carrier's liability for wrong delivery of goods
Germany | 09 June 2021

The Koblenz Higher Regional Court recently decided on a case of wrongful delivery. A subcarrier driver had not found the recipient at the given delivery address and, following the instructions of a man unknown to the driver, had unloaded the goods without ascertaining the man's identity or legitimacy to receive the shipment. The court's decision regarding the definition of loss seems logical. As to the exclusion or limitation of liability, the court's reasoning is quite severe but rather convincing in this particular case.

Ever Given grounding: who is liable for carrier and forwarder delays?
Germany | 28 April 2021

The grounding of the Ever Given container vessel in the Suez Canal caused considerable congestion for many other vessels which were trapped on both sides of the canal. As such, cargo interests – such as shippers' and consignees' respective cargo insurers – as well as the sea carriers of the respective vessels and the initial (multimodal) carriers and forwarders are faced with damages arising from these delays. This article considers the issue of liability for delays under German law.

Theft of semi-trailer and violation of safety instructions
Germany | 24 February 2021

A recent Federal Supreme Court concerned a clause in a consignor's general terms and conditions, according to which loaded vehicles had to be monitored while parked or parked where sufficient safety was guaranteed. Following the theft of the cargo in question, the court held that this clause was not sufficiently clear as to impose on the carrier any duties of care beyond the legal requirements. This judgment has strengthened the position of carriers.

Implementation of Freight Forwarders' Standard Terms and Conditions
Germany | 10 February 2021

The list of associations which were involved in the negotiation of the Freight Forwarders' Standard Terms and Conditions (ADSp) 2017 and now recommend them is significantly larger than for the ADSp 2003. However, whether this alone is sufficient to affirm a comprehensive inclusion of the entire ADSp 2017 in a transport contract is doubtful. This article discusses a Heidelberg Regional Court decision which provides clarity on this matter.

Freight claim in case of premature termination of freight contract
Germany | 16 December 2020

A recent decision highlights that it is not a precondition of an obstacle to carriage or delivery that the agreed carriage has become impossible. Rather, it is sufficient that the transport can no longer be performed in accordance with the contract. Moreover, such an obstacle exists if the carrier loses possession of the goods because the sub-carrier now transports the goods under a freight contract concluded directly with the consignor.

Yacht hull insurance: coverage if insured was unaware that yacht was unfit to sail
Germany | 14 October 2020

In 2019 the Flensburg court considered damage to a sailing yacht which had occurred during a sailing regatta (ie, a series of boat races) in 2010. The judgment strengthens the legal position of insureds with yacht hull insurance. It highlights that insurers have the onus to prove that the insured was aware of the unseaworthiness when the voyage commenced. It is not enough to prove the unseaworthiness – insurers must prove that the owner was aware thereof.

Damage of cargo during multimodal transport
Germany | 07 October 2020

In a recently published decision, the Würzburg Regional Court held that if a carrier does not submit a single offer to the consignor for carriage by different means of transport for the entire route as requested, but rather makes separate offers for the inland and ocean-going routes, and these offers are accepted by the consignor, it is not a true multimodal contract, but rather an inland waterway contract and a separate ocean-going contract.

Contract of carriage by sea is not contract with protective effect in favour of other shippers
Germany | 02 September 2020

A higher regional court recently found that a contract of carriage by sea is not a contract with protective effect in favour of other shippers. The shipper's obligations relating to proper and safe packaging and labelling were meant to primarily protect the carrier, not other shippers. The court's judgment, dismissing the idea of a contractual link between two shippers of the same carrier, does seem convincing.

A city is a city but not a concrete legal venue
Germany | 01 July 2020

Two freight forwarding companies were in dispute over the payment of freight forwarding charges in connection with a transport from Germany to the United Kingdom. After out-of-court negotiations failed, the plaintiff filed a complaint with the Duisburg Local Court. The plaintiff claimed that the local court's jurisdiction derived from its general terms and conditions, in which Duisburg was stated as the place of jurisdiction.

Deliberate recklessness of carrier in disregard of instruction
Germany | 10 June 2020

A higher regional court recently found that a carrier had acted with wilful misconduct by disregarding a claimant's shipping order which contained a clear instruction to refrain from parking in unguarded parking spaces. Senders are well advised to give clear instructions to carriers by agreements in their contracts of carriage. If such clear instructions by the customer are not followed and damage arises, the carrier faces the reproach of wilful misconduct.

Limited liability of carrier's bodies in case of loss of deck cargo
Germany | 13 May 2020

In 2018 the Hamburg Higher Regional Court ruled on a damages claim arising from the loss of deck cargo during a sea voyage. The court had to examine under what circumstances bodies acting on behalf of a carrier have acted with gross negligence where cargo goes overboard due to inadequate lashing or securing. In maritime transport, a gross organisational fault on the part of bodies acting on behalf of a carrier breaks the limitation of liability.

Obligation to pay compensation for damages following disruption of tram network
Germany | 06 May 2020

The Frankfurt District Court recently ruled in a dispute between the operator of the city's tram network and the insurer of a vehicle which had parked in such a way as to block the tram tracks. The dispute concerned the plaintiff's claim for compensation for the damages that it had suffered as a result of the vehicle owner interfering in its business operations.

COVID-19, voyage charterparties and force majeure
Germany | 22 April 2020

The closure of Chinese ports due to the COVID-19 pandemic raises the question of whether and under which conditions expenses and risks charterers may cancel their voyage charterparty in the event of the closure of a port due to COVID-19. This article examines German law from the charterer's point of view and asks in particular what happens if a voyage charterparty contains no force majeure clause.

Liability in Germany under EU Ship Recycling Regulation
Germany | 04 March 2020

Legal clarity on the exact scope of the criminal and civil liability penalties of the EU Ship Recycling Regulation in Germany and their extent will be reached only when the regulation is transposed into national law. The enforcement provisions are expected to be based on German criminal law and to be comparable with the Waste Shipment Act, which implemented the EU Waste Shipment Regulation.

Zeamarine – what creditors need to know under German law
Germany | 26 February 2020

The Bremen Local Court recently designated a provisional bankruptcy administrator responsible for the assets of three companies belonging to the Zeamarine group. All actors in the maritime industry should check whether they have any dealings or outstanding claims against any of the three Zeamarine companies for which bankruptcy proceedings are now pending.

Carrier liability for contaminated liquid bulk cargo – contributory negligence of shipper
Germany | 15 January 2020

In a March 2019 case, the Hamburg Higher Regional Court had to decide whether the claimant had a control and inspection duty under the Commercial Code and, if so, to what extent the damage should be reduced for reasons of contributory negligence. The decision clarifies that shippers can rely on carriers to provide a sound transport vehicle.

Proof of carrier's qualified fault in case of partial loss of transported goods
Germany | 18 December 2019

A recent Higher Regional Court of Dusseldorf decision concerning the partial loss of goods has strengthened the position of carriers. The court found that it is not enough to inform a carrier's driver of the risk of theft only when loading goods, as the carrier will have no time to assess the situation. The notification of risk must be made in good time so that the carrier can make a decision in the normal course of business.

Delivery damaged – only damaged pallets and packaging are liable for reimbursement
Germany | 11 December 2019

No matter how well goods are packaged and how great the effort of a carrier to consign a delivery in perfect condition to the customer, damage to goods, pallets and packaging cannot always be avoided. If damage occurs, the carrier will quickly be faced with a claim for damages, either from the shipper, the recipient or their insurer. The Federal Court of Justice redefined the calculation of damages in a ruling at the end of 2018.

Delivery of goods by parking container outside consignee premises
Germany | 13 November 2019

According to the Bremen Higher Regional Court, if agreed by contracting parties, goods can be delivered by parking a shipping container in front of the consignee's premises during non-business hours. In such instances, the carrier will not be liable if the cargo is stolen. This decision is a useful reminder that parties to a transport contract must have unequivocal terms of delivery.

CMNI statute of limitations also applies to ship damage
Germany | 23 October 2019

The Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways (CMNI) states that all claims arising from contracts regulated thereunder become time barred one year after the day on which the goods were or should have been delivered to the consignee. A Higher Shipping Maritime Court decision serves as a useful reminder that Article 24 of the CMNI applies to all claims relating to transport, regardless of which party raises them or whether they concern tortious or enrichment matters.

Court examines scope of multimodal transport
Germany | 02 October 2019

Federal Court of Justice case law suggests that, in multimodal transport cases, voyages always have a series of sections and there are no stages without sections. However, a recent Hamburg Regional Court decision suggests that there may be transport stages in a multimodal transport system that cannot be attributed to a particular section.

Calculating carriers' contributory negligence
Germany | 25 September 2019

In a decision which conflicts with the examination sequence typically preferred by the Federal Court of Justice, the Hamburg Higher Regional Court ruled that a carrier's liability had been miscalculated and that that contributory negligence should have been examined before the limitations of liability. The court opined that, in view of Section 254 of the Civil Code, contributory negligence should be considered after or in conjunction with determining concrete damages and before the limitations of liability.

Additional place of jurisdiction clause in ADSp 2017
Germany | 18 September 2019

The Freight Forwarders' Standard Terms and Conditions (ADSp) are general terms of service recommended by several trade associations. In a recent non-published decision, the Dresden Higher Regional Court addressed whether, in addition to the place of jurisdiction specifications in Section 30.3 of the ADSp 2017, the place of jurisdiction rules set out in Section 30(1) of the Code of Civil Procedure also apply in legal disputes against freight forwarders.

Carrier liability for loss of goods and delayed delivery
Germany | 10 July 2019

The distinction between freight and forwarding contracts is a common subject of legal disputes in Germany, as freight forwarders are generally liable only for organisational or selection faults and can usually relieve themselves of liability if they can prove that they chose a conscientious carrier. A recent Verden Regional Court ruling on the liability of a carrier for loss of goods and delayed delivery provides useful clarity in this context.

Pleasure yacht insurance: navigating without up-to-date charts and proper voyage plan
Germany | 03 July 2019

In a notable hull insurance case, the Celle Court of Appeal dismissed an action brought by an assured pleasure yacht owner who had been sailing on the Baltic Sea and ran aground. The case facts suggest that assureds are often unaware of the impact that outdated chart materials can have on hull insurance and liability cover.

New terms and conditions for logistics providers
Germany | 05 June 2019

The Logistics Terms and Conditions (Logistik-AGB) 2019, which were jointly revised by the German Association for Freight Forwarding and Logistics, the Federal Association of Road Haulage, Logistics and Disposal and the Federal Association of Furniture Forwarders and Logistics, will enter into force on 1 July 2019. The new terms and conditions will replace the Logistik-AGB 2006 and supplement the Freight Forwarders' Standard Terms and Conditions 2017.

Destruction of consignment by Customs – question of liability
Germany | 22 May 2019

The Higher Regional Court of Dusseldorf recently confirmed the underlying principle of Article 18(2)(d) of the Montreal Convention – namely, that air carriers cannot be held liable for damages which are entirely outside their sphere of risk and influence. However, this decision is also a useful reminder that an exclusion of liability clause is not a free pass for carriers.

Light goods + heavy pallets x 8.33 special drawing rights?
Germany | 24 April 2019

How should the weight of a shipment containing damaged goods but usable pallets be calculated, considering that this would form the basis for liability? According to a recent Federal Court of Justice decision, if the pallets are still usable, only the net weight of the goods counts. The court held that it is necessary to look closely at what has been damaged, as the fate of some items is not necessarily the fate of others.

Impact of truck cartel on transport sector
Germany | 10 April 2019

Daimler, MAN, Volvo/Renault, DAF, Iveco and Scania are facing billion-dollar damages claims from carriers for illegal price fixing. To date, more than 7,000 transport companies from 26 countries have filed over 300 claims in excess of €1 billion in the German courts. However, the spillover effects on the transport sector remain unclear. A recent Dortmund Regional Court decision provides much-needed clarity in this regard.

ADSp 2003, 2016 or 2017 – which version is valid?
Germany | 23 January 2019

The German Freight Forwarders' Standard Terms and Conditions (ADSp) are a joint body of recommendations for shipping industry associations and freight forwarders. However, given that there are (at least) three versions – namely, ADSp 2003, ADSp 2016 and ADSp 2017 – many companies struggle to clearly identify the ADSp on which they should base their services.

Carriers' liability for implementing safety instructions
Germany | 09 January 2019

A recent Bremen Regional Court decision serves as a stark reminder to carriers that all contractual obligations, particularly those relating to security instructions, must be fulfilled and that any carrier found to have breached these obligations could face unrestricted liability in the event of damages. Carriers should carefully assess the feasibility of implementing any listed safety instructions before accepting transport contracts.

Shipshape: tour operators not liable for gym injuries sustained during sea swells
Germany | 19 December 2018

The Koblenz Higher Regional Court recently confirmed that tour operators cannot be held liable by cruise passengers for gym injuries sustained during large swells. The decision re-emphasises the fact that ships shift constantly at sea and that all passengers should therefore take appropriate care while on board – particularly during large swells – as failure to do so may deny them the ability to claim damages if an accident occurs.

CMR versus Civil Code: five or nine percentage points above basic lending rate?
Germany | 12 December 2018

The Verden Regional Court recently sentenced a forwarder to pay full compensation plus interest calculated at nine percentage points above the basic lending rate under the Civil Code. Upholding the forwarder's appeal, the Celle Higher Regional Court held that the interest rate should be reduced to five percentage points above the basic lending rate, which is more in line with interest claims under the Convention on the Contract for the International Carriage of Goods by Road.

A deal is a deal: compensation claim for alleged consignment loss or damage
Germany | 24 October 2018

While settling claims out of court to avoid losing customers is becoming standard practice in the shipping and transport industry, such payments should not be made prematurely – particularly if the carrier's responsibility for the damage is unclear. In most cases, the opposing party interprets such goodwill payments as an acknowledgement of debt at a later stage in the proceedings. Therefore, carriers are advised to draw up a brief compensation declaration to avoid having to compensate twice.

No liability for late delivery where loading readiness is agreed as subject to vessel availability
Germany | 03 October 2018

In its capacity as a court for inland navigation, the Mannheim District Court recently settled a dispute between an inland waterway carrier and a sender. The sender had instructed the carrier on short notice and despite the express statement by the carrier that its vessel was not yet available. According to the court's interpretation of the transport contract, the flexibility agreed in respect of loading readiness was to be understood as an exemption of liability for late delivery.

CMNI transport documents must specify weight
Germany | 19 September 2018

The Federal Court of Justice recently clarified a number of issues under the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway – most importantly, the determination (calculation) of the limitation per weight of goods. According to the court, only the weight specified in the transport document can be invoked; if no weight is mentioned in the transport document, the carrier must rely on the limitation per package.

Gap closed – no further risk for forwarders
Germany | 12 September 2018

The German Freight Forwarders' Standard Terms and Conditions (ADSp) 2017 are designed to protect forwarders and close any potential liability risk gaps, particularly for organisations involved in air transport. In order to clarify the issue of whether the ADSp 2003 applied only to transport that was governed by German law, the updated ADSp stipulate that they do not apply to international transport.

Court examines loss of goods placed in front of unattended warehouse
Germany | 29 August 2018

The Munich Higher Regional Court recently confirmed that 'delivery' under the Commercial Code essentially means the procurement of direct possession. While the physical seizure of transported goods by a consignee is unnecessary, the goods must be made available to the consignee in such a way that it can, without further obstacles, seize control of the goods. The court also clarified how to classify the unloading of valuable goods in front of an unattended warehouse without an agreement or instructions.

'Gigaliner' operation does not violate EU law
Germany | 01 August 2018

The Berlin Administrative Court recently considered the action of an environmental association admissible but unfounded. The association had sought a declaration that introducing long trucks or 'gigaliners' to regular operation and extending the trial operation of certain extra-long trucks was illegal. While this judgment strengthens the road transport route, given that the operation of extra-long trucks is limited by the density of the cargo, the use of gigaliners might not affect competition with rail transport.

Contractual risk exclusion of intervention by customs authorities in transport insurance
Germany | 11 July 2018

The Federal Court of Justice recently ruled on two risk exclusion clauses in transport insurance policies that are especially relevant for the export and import industries. While the decision has resolved some of the legal uncertainty surrounding transport insurance, it will likely apply to all types of insurance. As far as risk exclusion clauses are concerned, the court has made it clear that exclusion clauses should be interpreted restrictively.

White Collar Crime

Whistleblower Protection Act: new compliance requirements
Germany | 10 May 2021

The Federal Ministry of Justice and Consumer Protection recently presented a draft bill for the Whistleblower Protection Act. The reason for the draft bill is the EU Whistleblowing Directive, which aims to better protect whistleblowers (ie, internal employees who draw attention to their employers' compliance violations). Without adequate protection, whistleblowers are often subject to reprisals, which may lead to compliance breaches not being reported.