Latest updates

Theft of semi-trailer and violation of safety instructions
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Court rules on assured's obligation to notify insurer of risk-relevant fact prior to conclusion of contract
Arnecke Sibeth Dabelstein
  • Insurance
  • 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
Arnecke Sibeth Dabelstein
  • Insurance
  • 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
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Freight claim in case of premature termination of freight contract
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Special features of airline insolvencies in Germany
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Courts decide whether insurance broker with 100% of shares held by insurer was independent and neutral
Arnecke Sibeth Dabelstein
  • Insurance
  • 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
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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
  • Shipping & 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.

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

BER: all set for grand opening
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Contract of carriage by sea is not contract with protective effect in favour of other shippers
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

In hot water: court rules on claim for cover against liability insurer
Arnecke Sibeth Dabelstein
  • Insurance
  • 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
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

MRO agreements from airlines' perspective – combating effects of COVID-19
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

Insurance premium tax: Federal Ministry of Finance issues guidelines on determination of policyholders
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

A city is a city but not a concrete legal venue
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Federal Court of Justice rules on policyholder's insolvency under D&O insurance policy
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Deliberate recklessness of carrier in disregard of instruction
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.