Shipping & Transport, Germany, Arnecke Sibeth Dabelstein updates

Yacht hull insurance: coverage if insured was unaware that yacht was unfit to sail
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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.

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