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05 July 2017
A tanker barge was anchored on the River Rhine in an area where anchoring was prohibited. During a manoeuvre, the vessel ran aground and was secured with an anchor; the anchor chain blocked the entrance to a marina. The claimants' vessels – which were working on a construction project in the marina – were thereby prevented from leaving the marina for working purposes for a certain period. The claimants claimed damages on the basis of Section 823 of the Civil Code, asserting that their property (ie, the vessels) had been interfered with. They claimed that their vessels were prevented from leaving the marina for several days. However, according to the evidence, it was only one day.
Section 823 reads:
"A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this."
The first-instance court ruled in favour of the claimants. The appeal dismissed the claim on the grounds that the day's loss was insufficient to constitute injury to property for the purposes of Section 823. The decision was based on a Federal Court of Justice decision where the interference lasted for eight months. Following this decision, some lower courts subsequently ruled that for a claim under Section 823, to succeed the interference must be more than "just negligible", which in one decision was held to be 14 days and in another more than three days.
However, in the present case, the court decided (BGH VI ZR 403/14, June 2016) that the claimants' property was injured even though their vessels were blocked for one day only. The court held that the test to be applied to determine injury was not any specific length of time. The decisive factor was whether depriving the owners from employing their vessels as intended was tantamount to actually removing the vessel completely from the owner's disposition and thereby injuring their property. According to the court, this is what happened.
The decision puts an end to the established jurisprudence of the lower courts, particularly in shipping law where the time factor is relevant for the decision of whether property has been injured within the meaning of Section 823.
Time will tell how the courts will deal with this ruling, as the Federal Court of Justice has not clarified at what point the threshold between an inconsequential disturbance is crossed to become an injury to property due to deprivation of use. However, the losses suffered should not determine whether the property is deemed injured according to Section 823.
For further information on this topic please contact Karen Lorenz or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 779 70) or email (email@example.com or firstname.lastname@example.org). The Dabelstein & Passehl website can be accessed at www.asd-law.com.
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