It justifies the reproach of grossly negligent behavior on the part of the skipper and justifies a reduction in the insurance benefit by 80% if a skipper sets his course over a shoal marked on the nautical chart and, despite danger signs, activated echo sounder and with good visibility, does not adjust his speed or completely stops in order to be able to make sure in time not to drive over the shoal.
LG Neubrandenburg, 14.04.2021 – 3 O 537/19
= Transportrecht 6 2021, S. 293 ff
1. Whether a late delivery, which justifies the lack of any marketing opportunity, is to be qualified as loss / total damage or as a delivery time being exceeded can remain open if the carrier is to be accused of qualified fault according to Art. 29 CMR.
2. Qualified fault on the part of the carrier according to Art. 29 CMR is already to be assumed if the carrier does not substantiate why the goods were not delivered on time.
LG Bonn, Urt. v. 05.03.2021 – 11 0 65/19
= Transportrecht 2 2022, S. 68 ff
If the company closure insurance provides coverage in accordance with the conditions in the event of the diseases and pathogens named in the Infection Protection Act in Sections 6 and 7 of the LfSG, without an explicit list, but if an extract from these two provisions is attached at the time of application, insurance cover only applies to the diseases and pathogens listed in these regulations at this point in time. The fact that the conditions do not explicitly refer to the extract from the lfSG and the extract is on separate sheets does not change anything here. (not official)
LG Lübeck, Urt. v. 28.01.2021 – 4 0 162/20, n.rk.
= VersR 6 2021, S. 375 ff
1. If a sport boat harbor operator based in the Netherlands also advertises its services in Germany, the place of jurisdiction of Art. 18 (1) EuGWO (in Germany) in the event of damage in the event of damage to a motor yacht belonging to a German owner.
2. This also applies to claims of the responsible yacht hull insurer, which have been transferred to the insurer according to proportionate regulation in accordance with Section 86 (1) WG, but have been reassigned to the owner by the insurer.
3. It is left open whether a corresponding procedure by the yacht hull insurer is possibly abusive in the case of separate assertion of the right of recourse, since the risk of contradicting partial judgments would exist (§ 301 ZPO).
LG Aurich, Zwischenurt. v. 21.09.2020 – 2 0 972/19
= Transportrecht 5 2021, S. 254 ff
1. The application for an interim injunction is rejected.
2. The plaintiff has to bear the costs of the proceedings.
3. The judgment is provisionally enforceable. The plaintiff can avert the enforcement of the defendant by providing security in the amount of 110% of the amount enforceable on the basis of the judgment, if the defendant does not provide security in the amount of 110% of the amount to be enforced prior to enforcement.
LG Mannheim, 29.4.2020 – 11 O 66/20
1. Shipment and freight documents and a so-called health certificate establish an actual presumption that the goods have been handed over for transport in full and intact.
2. The unjustified breaking of a veterinary seal justifies a total loss of the goods sealed up to then.
3. The unauthorized disclosure of a PIN to pick up a container in the seaport constitutes a qualified fault.
LG Karlsruhe, 25.03.2020 – 14 O 55/19 KfH
= Transportrecht 6 2021, S. 288 ff
1. The unconditional payment of the amount of the limited liability constitutes a “testimony against oneself”, which leads to a reversal of the burden of presentation and proof with regard to the requirements on which the claim is based.
2. There is prima facie evidence that the total loss of the mandatory temperature-controlled medication is based on a failure of the cooling system over a period of approx. 33 hours.
3. In the event that the temperature-controlled shipment is temporarily stored in the carrier’s custody area, he must ensure that the temperature is constantly maintained with the care required for traffic.
LG Köln, Urt. v. 12.03.2020 – 85 O 45/18
= Transportrecht 10 2021, S. 427 ff
On the question of whether dangers and accidents at sea and other navigable waters within the meaning of Section 499 (1) I (1) HGB can also occur on land.
LG Hamburg, 16.01.2020 – 409 HKO 28/19
= Transportrecht 6 2021, S. 277 ff
1. A seaport terminal which charges the freight forwarder with the sea freight agreed (directly) between the freight broker and the sea freight carrier, including billing for other own services (here: for stowing and washing goods), is not a fixed-cost freight forwarder within the meaning of § 459 HGB.
2. If damage occurs on the sea route, the seaport terminal is only liable in the event of a breach of its own obligations according to §§ 461 Paragraph 2, 454 HGB or § 280 BGB; for example in the case of a defective stowage / lashing. The freight broker has to prove this.
LG Hamburg, Urt. v. 13.12.2019 – 415 HKO 53/18
= Transportrecht 9 2020, S. 397 ff
In the case of damage caused by wetness, the carrier must provide a substantiated account of the specific circumstances and causes of the damage – in particular with the names of the persons involved, their summonable address and, if possible, also the time and place of occurrence of the damage – otherwise qualified fault on the part of the carrier pursuant to § 435 of the German Commercial Code (HGB) is to be presumed due to a violation of the so-called duty to investigate.
LG Bielefeld, Urt. v. 03.09.2019 – 24 S 5/19
= TransportR. 3 2020, S. 126 f
1. If, according to the (own) terms and conditions of a parcel service provider, there is an obligation to deliver goods personally to the recipient, the delivery of a shipment to a third party constitutes a qualified fault in accordance with Section 435 of the German Commercial Code (HGB).
2. In the case of temperature-controlled transport of temperature-sensitive drugs, the interruption of the cold chain and / or its documentation justifies a suspicion of damage.
3. It is the responsibility of the parcel service provider to remove any suspicion of damage; otherwise a total write-off is to be suspected.
LG Bamberg, Endurt. v. 23.08.2019 – 1 HKO 3/19
= Transportrecht 2 2021, S. 67 ff
1. A contractual relationship results from § 242, Paragraph 2 BGB, the mutual obligation to take into account the rights, legal interests and interests of the other party. The assertion of unjustified claims constitutes a violation of this obligation. There is no such assertion in the request for a waiver of the objection of the statute of limitations in order to enable the processing of the damage case.
2. A breach of duty in the form of such an assertion is not negligent if the obligee does not recognize that his claim is not justified in the matter. The obligee already corresponds to the care required in traffic if he can consider a claim to be plausible. If it remains uncertain whether there has actually been a breach of duty on the part of the other contracting party, the obligee may assert the rights resulting from a breach of duty without having to fear liability for damages due to a culpable breach of contract, even if his request turns out to be unjustified, otherwise the Assertion of claims are made inadmissibly difficult.
LG Hamburg, Urt. v. 19.07.2019 – 415 HKO 55/18
= Transportrecht 9 2020, S. 421 ff
1. To interpret a contract as a freight or forwarding contract
2. If the freight forwarder is obliged to provide a (special) vehicle with a lifting platform and if the freight forwarder – if the consignment weight is known to him – provides a truck with a lifting platform whose maximum permissible weight is less than the weight of the consignment, the freight forwarder is to be blamed for qualified fault if at the lift breaks off during unloading and the shipment on it crashes.
LG Göttingen , Urt. v. 06.03.2019 – 3 O 31/16
= Transportrecht 11/12 2020, S. 481 ff
1. The judicial assertion of assigned claims by policyholders by the transport insurer constitutes an auxiliary or secondary activity without permission within the meaning of Art. 1 § 5 No. 1 RBerG.
2. The warehouse keeper is liable for suspected negligence and must therefore be exonerated by providing full evidence that he is not responsible for the destruction of the stored goods. This includes a presentation and proof of how the storage rooms were designed, that damage was appropriately avoided and that he and his vicarious agents (e.g. the landlord of the storage building) are not accused of guilt, although he cannot simply refer to the fact that the damage was caused by external sources Circumstances have been caused; if the cause of the damage cannot be clarified, he is responsible for it.
3. One of the duties of the warehouse keeper is to store the goods in such a way that there are no recognizable or avoidable risks of changes in substance that could be identified with reasonable effort. In addition, he has to continuously control and guard the storage location, in particular to ensure fire prevention and fire protection. It is true that the storekeeper cannot be expected to have full knowledge of the properties of the stored goods and absolute protection is not owed; In principle, however, the recognizable value and any specific susceptibility to damage of the goods must be taken into account when selecting the storage location.
4. The choice of an unsuitable storage location constitutes a violation of cardinal obligations.
LG Berlin, Urt. v. 30.01.2019 – 101 O 82/17
= Transportrecht 7|8 2019, S. 333 ff
If goods are contaminated / damaged by migrants during an international transport by truck and the carrier cannot substantiate when, where and how the migrants entered the vehicle, the carrier per se cannot invoke an exclusion of liability according to Art. 17 para. 2 CMR.
LG München, Endurt. v. 21.01.2019 – 15 HKO 2598/14
= Transportrecht 7|8 2020, S. 363 ff
The guarantee of a P & 1 insurer based in England does not fulfill the requirements of § 108 (1) sentence 1 ZPO; especially taking into account the expected BREXIT.
LG Hamburg, Zwischenurt. v. 18.01.2019 – 415 HKO 55/18
= TransportR. 10 2019, S. 465 ff
Clauses in a transport order requiring the carrier to take breaks only on guarded and video-monitored parking spaces are effectively agreed upon when the carriage is carried out, as neither surprising nor inappropriate.
LG Bremen, Urt. v. 05.06.2018 – 110169/17
= TransportR. 10 2018, S. 390 ff