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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.