Germany updates

Aviation

Contributed by Arnecke Sibeth Dabelstein
Passenger versus service cart – typical aviation hazard?
  • Germany
  • 03 March 2021

The Celle Higher Regional Court recently found that the Hanover Regional Court wrongly rejected an application for legal aid by a passenger who claimed that a flight attendant had injured her knee with a service cart. However, it remains to be seen whether the damages will be reduced or excluded due to any contributory negligence on the part of the applicant.

Special features of airline insolvencies in Germany
  • 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.

BER: all set for grand opening
  • 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delays have harmed the original idea for the airport given the fact that its infrastructure has already become a bit outdated without ever having been used.

MRO agreements from airlines' perspective – combating effects of COVID-19
  • 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.

E-ticket voucher not a valid ticket
  • Germany
  • 20 May 2020

A recent Eilenburg Local Court decision highlighted that a booking or reservation confirmation issued to a passenger by a tour operator with whom a flight has been booked should not necessarily be regarded as a confirmed booking under Article 3(2)(a) of the EU Flight Delay Compensation Regulation, even if the booking is referred to as an 'e-ticket voucher'. This decision underlines that the burden of proof for the existence of a confirmed booking will be borne by the passenger.


Insurance

Contributed by Arnecke Sibeth Dabelstein
Court rules on policyholder's claim against insurer for information on stored personal data
  • Germany
  • 04 May 2021

In 2019 the Cologne Higher Regional Court issued a decision on the scope of the right to information under the EU General Data Protection Regulation that has enormous implications for insurers that collect or process personal data. The court held that the right to information covers not only the so-called 'master data' in the relationship between the insurer and the policyholder, but also telephone and conversation notes that the insurer has stored, used and processed with reference to the policyholder.

Do not leave your package unattended
  • Germany
  • 06 April 2021

In 2019 the Stuttgart Regional Court considered a dispute about claims for damages following a vehicle transfer from Turkey to Germany. Following a traffic accident, the plaintiff delivered the vehicle to a workshop and notified the defendant of damage to the roof of the vehicle and the loss of various items that were allegedly in the vehicle. The court held that the defendant was not liable for the alleged theft of the items.

How will BaFin regulate the conduct and run-off of cross-border activities post-Brexit?
  • Germany
  • 23 March 2021

The Federal Financial Supervisory Authority has issued a general administrative act regulating the conduct and run-off of cross-border business of insurers in the United Kingdom, Northern Ireland or Gibraltar. What does this mean for insurers based in the United Kingdom, Northern Ireland or Gibraltar in respect of their cross-border activities in Germany and for German insurers in respect of their cross-border activities in the United Kingdom?

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


Shipping & Transport

Contributed by Arnecke Sibeth Dabelstein
CMR carrier's liability for wrong delivery of goods
  • Germany
  • 09 June 2021

The Koblenz Higher Regional Court recently decided on a case of wrongful delivery. A subcarrier driver had not found the recipient at the given delivery address and, following the instructions of a man unknown to the driver, had unloaded the goods without ascertaining the man's identity or legitimacy to receive the shipment. The court's decision regarding the definition of loss seems logical. As to the exclusion or limitation of liability, the court's reasoning is quite severe but rather convincing in this particular case.

Ever Given grounding: who is liable for carrier and forwarder delays?
  • Germany
  • 28 April 2021

The grounding of the Ever Given container vessel in the Suez Canal caused considerable congestion for many other vessels which were trapped on both sides of the canal. As such, cargo interests – such as shippers' and consignees' respective cargo insurers – as well as the sea carriers of the respective vessels and the initial (multimodal) carriers and forwarders are faced with damages arising from these delays. This article considers the issue of liability for delays under German law.

Theft of semi-trailer and violation of safety instructions
  • 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
  • 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.

Freight claim in case of premature termination of freight contract
  • 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.


White Collar Crime

Whistleblower Protection Act: new compliance requirements
Arnecke Sibeth Dabelstein
  • Germany
  • 10 May 2021

The Federal Ministry of Justice and Consumer Protection recently presented a draft bill for the Whistleblower Protection Act. The reason for the draft bill is the EU Whistleblowing Directive, which aims to better protect whistleblowers (ie, internal employees who draw attention to their employers' compliance violations). Without adequate protection, whistleblowers are often subject to reprisals, which may lead to compliance breaches not being reported.


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