1. A pre-trial “no objection” to passive legitimacy is not suitable to justify a claim against the person concerned. (No. 19)
2. The burden of explanation and proof for all circumstances that justify the outfitter status is borne by the person who claims an outfitter as such. The assessment of the supplier status is not based on a formal legal position, but on the actual use of the ship for inland navigation like a ship owner. Principles of prima facie evidence do not apply. (paragraph 20)
3. The user of the ship is only an outfitter (§ 2 Para. 1 BinSchG) if the skipper is in his service, i.e. dependent on him and subject to his managerial rights. (paragraph 21)
4. Liability as a “bogus supplier” only exists in the area of legal transactions, but not within the framework of liability from tort, in particular for average claims. (Rn. 21)
5. Negotiations within the meaning of Section 203 of the German Civil Code require the obligated party to engage in discussions. This is lacking if liability is consistently rejected. (Rn. 35) (Editorial guidelines)
AG Bremen, Urt. v. 12.03.2021 – 11 C 1/20
= RdTW 10/2021, S. 405
In contrast to possibly according to Section 19 ADSp, a prohibition of offsetting in favor of the carrier commissioned by the user is in any case not justified according to § 32 AÖSp.
AG Hannover, Beschl. v. 04.06.2020 – 410 C 1448/20
= Transportrecht 1 2021, S. 19
Decisive for the calculation of the regular liability according to § 431 HGB is the weight of the freight item and not the weight.
AG Bremen, Urt. v. 01.02.2018 – 10 C 227/17
= TransportR. 6 2018, S. 250 ff