Ship collision – Prima facie evidence under German Law
Ship collision – Prima facie evidence under German Law
OLG Nürnberg, Endurteil v. 19.10.2016 – 12 U 2194/14
Facts
The owner of a German flagged yacht was sued by another German flagged yacht owner for compensation, after the yachts collided in bad weather. Both vessels had been lying at anchor at the bay of Tiha in Croatia, about 300 to 350 meters apart, when during the night due to weather changes (wind shift as well as wind gusts) the defendant’s vessel’s anchor loosened and as a result hit the claimant’s vessel.
The court of first instance dismissed the claim on the basis that the claimant did not sufficiently proved the defendant’s negligence. The claimant appealed to the Higher Regional Court.
Decision
The Higher Regional Court set aside and remitted the decision by the court of first instance because the latter had not sufficiently taken into account the principles of two prima facie evidence rules.
Firstly, if a vessel in a steady position (a so called “Stillieger”) drifts away and as a result causes damages, there is a prima facie evidence in favour of the damaged party that the vessel was insufficiently secured. A vessel lies in a steady position if it is moored (e.g. on docks or dolphins), lying at anchor, lies aground or is stuck in ice.
Secondly, if there is a collision between a vessel in movement and a vessel that lies in a steady position (“Stillieger”) or at anchor (“Ankerlieger”), there is a prima facie evidence that the crew of the moving vessel caused the damage. A vessel at anchor means any vessel that lies at anchor or sways.
As a principle, a prima facie evidence requires a typical course of events, which, according to the experience of life, suggests a specific cause or a specific culpable conduct and as such is in its nature so normal and customary that the special individual circumstances are less significant. It is “evidence based on experience”.
A prima facie evidence can be set aside by the other party by proving that there was a realistic possibility of another than the typical course of events. It is not sufficient to only present to the Court any possible other cause of damage. The presented alternative must be a serious possible other cause.
Comment
The decision constitutes a clarification of the ambit and scope of prima facie evidences for maritime law. New in this decision is the finding by the Court that the principles used so far mainly for inland waters are expressly expanded to incidents in “blue water”, at least inshore. Unfortunately, the Court does not expressly say it but it indicates between the lines that it favours the applicability also to events occurring anywhere else in the open sea.
To learn more from the authors, please contact Lars Kortländer, Olaf Hartenstein, and Jan Dreyer at their respective addresses of l.kortlaender@da-pa.com, o.hartenstein@da-pa.com, and j.dreyer@da-pa.com.