Arnecke Sibeth Dabelstein updates

Airport charges take flight: airlines challenge fee structure
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Court rules on representative action undertaken by insurance agent on insurer's behalf
Arnecke Sibeth Dabelstein
  • Insurance
  • 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
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Security controls outside scope of airlines
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Carrier liability for contaminated liquid bulk cargo – contributory negligence of shipper
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Insurers beware: CMR jurisdiction rules apply to direct claims against carriers' liability insurers
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Proof of carrier's qualified fault in case of partial loss of transported goods
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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
  • Shipping & Transport
  • 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.

Proximate cause of grounding in bad weather after engine problems and insurers' right to information
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Delivery of goods by parking container outside consignee premises
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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
  • Shipping & Transport
  • 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.

Q&A on pitfalls and red flags when dealing with German MROs
Arnecke Sibeth Dabelstein
  • Aviation
  • 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?
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Insurance law aspects of recourse claims against subcarriers
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Court examines scope of multimodal transport
Arnecke Sibeth Dabelstein
  • Shipping & 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
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Air fares can be displayed in multiple currencies
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Additional place of jurisdiction clause in ADSp 2017
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Compensation must be offset against compensation for damages according to national law
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Suspension of limitation period in coverage dispute
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

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