Born 1972, qualified as a German lawyer in 2004.
Having studied in Freiburg i. Brsg., Paris and Kiel, and after post graduate studies in Private International Law and International Commercial Law at the Sorbonne (Diplôme d'Etudes Approfondies D.E.A) he has been teaching German Legal Terminology and German Law at the Parisian Institute for Comparative Law. He wrote his doctoral thesis in comparative private international law (French. German, and Italian law) and obtained a Master of Laws (LLM.) in French, European and International Business Law at the university Panthéon-Assas (Paris).
He then came to Hamburg for a 'Referendariat' and gathered practical experience in Bangkok at the German Embassy as well as in Beijing at the GTZ Advisory Service to the Legal Reform in China.
Olaf Hartenstein's particular areas of practice are private international law, international commercial law and international process law.
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.
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.
The Federal Court of Justice recently ruled that claims settlements by brokers on behalf of liability insurers constitute a violation of the Legal Service Act. The settlement of claims for insurers does not qualify as an accessory activity of the main activity of a broker, because a broker's main activity is to safeguard the assured's interests. It is not possible to represent the insurer's and the assured's interests simultaneously.
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.
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 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.
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.
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.
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.
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 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.
The owner of a German-flagged yacht was sued by another German-flagged yacht owner for compensation after the yachts collided in bad weather. The first-instance court dismissed the claim on the basis that the claimant did not sufficiently prove the defendant's negligence. The claimant appealed to the higher regional court, which clarified the ambit and scope of prima facie evidence for maritime law.
In two recent cases, the Rostock District Court decided that cruise ship passengers are not entitled to claims for repayment or damages due to unpleasant noises or vibrations which are attributable to the normal course of operation of a cruise ship. This is because a ship, in contrast to a hotel, is a means of transportation which cannot be operated without any noticeable vibrations or noise-producing units.
In a recent Federal Court of Justice case, 230 phones were reported missing following their delivery via road and air. As it was unclear where the damage had occurred, the court had to decide whether the road carriage formed an ancillary feeder service within the meaning of the Montreal Convention. The decision confirms the court's 2012 ruling that road carriage performed as part of a contract of carriage by air is not ancillary where carriage by air would have been possible.
In a recent case the sender believed that damage to its goods which occurred during shipping had been caused by rough treatment of the container and sued the carrier for damages. The carrier argued that the goods had been damaged due to insufficient packaging. As it was unknown where the damage occurred, the court applied (land) transport law. The court saw no indication of reckless behaviour by the carrier and dismissed the claim.
The Local Court of Hamburg recently contradicted a Regional Court of Bremen decision regarding whether vessels are protected from arrest during preliminary insolvency proceedings. The Hamburg court agreed that vessels should be treated as immoveables. However, it made no exception for vessels located abroad.
The Dusseldorf Higher Regional Court recently confirmed that the limitation of the policy territory in a carrier's liability insurance policy is based on the relevant transportation contract and whether it is entirely within the described territory or beyond it. The territory in which the damage occurs is irrelevant. The advantage of this approach is that it makes the question of cover easier to answer.
A transport insurer claimed damages from a carrier for damage to transported goods. The Federal Court of Justice decided that the damage had taken place outside the period of custody – with the consequence that transport law rules on liability did not apply. According to the court, general contract law applied and the defendant was liable due to violation of its duty of care.
The Act on the Reform of Maritime Trade Law has recently entered into force. Among other things, the requirements for ship arrests have been amended. In particular, the requirement of special urgency has been dropped for the arrest of vessels, undoubtedly facilitating ship arrests in Germany. However, it remains unclear whether the reform has also abolished the obstacle of counter-security.
German maritime trade law has been reformed in order to satisfy the needs of the 21st century shipping industry. The new legislation entered into force on April 25.
Germany is in the final stages of significantly reforming its maritime trade law. The reform bill has been approved and is set to enter into force in due course. The reform is a considerable step towards improving the standards of the German shipping industry, providing a modern legal framework without losing sight of practical needs. However, it will be essential to revise standard terms and conditions to meet the new standards.
The Hamburg Higher Regional Court recently held invalid a clause which exempts and limits the liability of the carrier for damages caused by delay, independent of the degree of default. The court found that a limitation of liability could not be justified, even in the event that use of the clause would be customary in international maritime business.
The Dusseldorf Court of Appeal recently clarified a carrier's obligation to provide information in case of damage to goods. The carrier must provide detailed facts concerning the damage only if the claimant has provided evidence of the likelihood of a qualified fault. In this case, the claimant failed to provide such evidence.
Seagoing vessels are protected from arrest during insolvency proceedings under insolvency law, but whether they are similarly protected during preliminary insolvency proceedings is less clear. According to a decision of the Bremen Regional Court, the arrest of a vessel is also prohibited during preliminary insolvency proceedings if it is arrested outside of the German jurisdiction.
The Court of Appeal has ruled on the postponement of the commencement of the limitation period for recourse claims according to Section 439, Paragraph 2 of the Commercial Code. The court held that a synchronicity of the basis for liability was not a condition for postponement. While the court's reasoning is correct in its result, it still leaves several questions unanswered.
A carrier claimed remuneration in addition to the contractually agreed freight because the transportation service that it completed was delayed by 10 days due to an unforeseeable obstruction en route. The Federal Court of Justice ultimately rejected the claim. This decision has ended a long-running and controversial dispute over the issue of which party bears the risk of unforeseeable, random causes of delay in transportation.
The Federal Court of Justice recently clarified the liability of a forwarder for damage that occurred before the consignment was loaded onto a truck. The decision extends the liability of a forwarder to pre-transport storage under German transport law, even if the transport begins several days later. However, this applies only when the forwarder has already been instructed with the transport.
In February 2008 the roll-on, roll-off vessel Adriyatik caught fire as it sailed from Turkey to Italy, destroying about 200 trucks. Since then, several courts in Germany have considered the liability of Turkish carriers under the Convention on Contracts for the International Carriage of Goods by Road (CMR). This update considers recent developments in the various cases, particularly with regard to the question of whether the English or French version of the CMR should apply.
Pirate attacks in the Gulf of Aden remain one of the major issues in the maritime industry. Hitherto, deploying private armed security teams has turned out to be the most effective way for shipowners to ensure that their vessel can safely traverse the dangerous seas along the coast of Somalia. This update outlines the German government's position on the deployment armed private security teams and considers the criminal risks involved.
The Federal Labour Court has held that a seafarer habitually carries out his or her work in the state whose flag is flown by the vessel on which he or she works. Although the court may have been correct that the German courts lacked jurisdiction, the reasoning of the court is unconvincing, and future decisions in this area are awaited with some suspense.
A recent Federal Court judgment has won the merit of reducing future uncertainty by defining more precisely when - under normal circumstances - the leg of the carriage by sea ends and the subsequent leg of the carriage by land begins. However, this decision leaves some relevant questions unaddressed.
The Federal Court of Justice has confirmed that in order to avoid full liability, a carrier may sometimes be ordered to disclose how the loss or damage occurred, and to this extent give an insight into its internal organization of the transport in question; failing which there will be a presumption that it acted recklessly with knowledge that damage would probably result.