Latest updates

CMR carrier's liability for wrong delivery of goods
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Whistleblower Protection Act: new compliance requirements
Arnecke Sibeth Dabelstein
  • White Collar Crime
  • 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.

Court rules on policyholder's claim against insurer for information on stored personal data
Arnecke Sibeth Dabelstein
  • Insurance
  • 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.

Ever Given grounding: who is liable for carrier and forwarder delays?
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • 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.

Air freight overview
Arnecke Sibeth Dabelstein
  • Aviation
  • International
  • 21 April 2021

Many of the goods that arrive in stores or directly at people's homes every day have travelled a long way. The customer's wish for goods to be available as quickly as possible means that such goods are often transported across borders by air freight. National laws do not apply in such cases, at least not to a great extent. Instead, various air transport agreements establish comprehensive regulations of which parties must be aware.

Do not leave your package unattended
Arnecke Sibeth Dabelstein
  • Insurance
  • 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?
Arnecke Sibeth Dabelstein
  • Insurance
  • 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?

Passenger versus service cart – typical aviation hazard?
Arnecke Sibeth Dabelstein
  • Aviation
  • 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.

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.

EASA AOC: to cert or not to cert?
Arnecke Sibeth Dabelstein
  • Aviation
  • European Union
  • 17 February 2021

EU Regulation 2018/1139 enables airlines that operate in more than one EU member state under multiple air operator certificates (AOCs) to obtain a European Aviation Safety Agency (EASA) AOC. The EASA AOC enables airlines which have aircraft registered in different European cities to report to a single competent authority in relation to safety oversight and certification, which may significantly reduce costs.

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.