A tanker barge anchored on the Rhine River within an area were anchoring was prohibited. During a manoeuver the vessel ran aground and was secured with an anchor; the anchor chain blocked the entrance to a marina. Thereby claimants’ vessels, working on a construction project within the marina at the time, were prevented from leaving the marina for working purposes for a certain period of time. The Claimants claimed damages on basis of § 823 of the German Civil Code (BGB) asserting their property – the vessels – had been interfered with. They claimed that their vessels were prevented from leaving the marina for several days whereas on the evidence it was only one day.
823 I BGB reads:
A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.
The first-instance court ruled in favour of claimants. The appeal dismissed the claim on the grounds that the day’s loss is not sufficient to constitute the injury to property for the purposes of § 823 I BGB. Their decision was based in particular on a former decision of the Federal Court of Justice (BGH) were the interference lasted for 8 months. Following this decision some lower courts subsequently ruled that for a claim under § 823 BGB to succeed the interference had to be more than “just negligible” which in one decision was held to be 14 days and in another ruling more than 3 days.
In the present case, however, the BGH decided in June 2016 (reference number BGH VI ZR 403/14) that the claimants’ property was injured although their vessels were blocked for one day only. The court held that the test to be applied to determine injury was not any specific length of time. The decisive factor was whether depriving the owners from employing their vessels as intended was tantamount to actually removing the vessel completely from the owner’s disposition and thereby injuring their property. This, so the court, was what had happened here.
The decision of the BGH puts an end to established jurisprudence of lower courts particularly in shipping law, namely that the time factor is relevant for the decision whether property has been injured within the meaning of § 823 BGB.
Time will tell how the courts will deal with this ruling as the BGH has not clarified when the threshold between an inconsequential disturbance is crossed to become an injury to property due to deprivation of its use. We would note, however, that the losses suffered should not determine if the property is deemed injured within the meaning of § 823 BGB.