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Case:
BGHZ 55, 153 II. Civil Senate (II ZR 133/68) Fleet -decision = NJW 1971, 886 = VersR 1971, 418
Date:
21 December 1970
Judges:
Professor B.S. Markesinis
Copyright:
F.H. Lawson and B.S. Markesinis

The defendant Federal Republic of Germany was the owner of a navigable channel which connected a mill with the port of B. During the night of 21 October 1965 part of the wall forming the bank collapsed bringing down part of the external wall of a dwelling-house based on it. In order to prevent a further collapse of the house, its owner, acting in accordance with an order of the competent authority, the City of B inserted beams as support. Two of these were inserted between the two banks of the channel immediately upon its surface. Thus the channel was effectively closed until the bank of the channel was provisionally restored during the middle of 1966. As a result the plaintiff’s motor vessel Christel was immobilized at the mill; nor could the plaintiff approach the mill with his other vessels, as he was contractually bound to do, in order to carry goods to and from the mill. He claimed damages amounting to DM 31,061 for loss of earnings.

The Landgericht Stade and the Court of Appeal of Celle allowed the claim. Upon a second appeal, the claim was rejected in part for the following

Reasons

I. . . .

II. . . .

1. The Court of Appeal is correct in holding that the case of a culpable violation of the duty incumbent upon the defendant by its constitutionally appointed organs to maintain the channel, § 823 I, §§ 89, 31 BGB must be considered as forming the basis of the claim, and not, as the appellant contends § 839 BGB in conjunction with Art. 34 of the Federal Constitution (GG)

. . .

Prior to and at the time of the collapse of the wall forming the bank the duty to maintain it was vested (by State) in a particular authority. The culpable violation of this duty gives rise to claims under § 823 I BGB [references] . . .

2. . . . it follows from the existing duties of the defendant [references] to keep the channel open to navigation that it is also obliged to prevent the threatening collapse of the wall of the channel by suitable safety measures which the owner must tolerate . . .

In the special circumstances the duty of the defendant to secure the navigability of the channel included not only the duty to restore it when obstructed or rendered impassable, but also the duty to remedy by suitable measures any immediate danger which endangered the navigability of the channel owing to the state of the walls or the banks.

3. As the Court of Appeal has held with justification, the authority constitutionally appointed by the defendant has culpably violated this duty . . .

The appellant is wrong in contending that the culpable violation of this duty was the adequate causation for the closure of the channel and therefore for the losses of the plaintiff resulting therefrom. It is true that the immediate cause for closure of the channel was the order of the city of B of 22 October 1965 and the propping-up of the house, street no. 10 in the execution of this order. Both were only the adequate consequence of the preceding violation of the duty incumbent upon the authority constitutionally appointed by the defendant. For it is not outside common experience that the failure to secure a defective wall of a bank which supports an external wall of a building, can lead to consequences of this kind.

4. The Court of Appeal denies that the provisions concerning the duty to maintain a waterway constitute a protective law in the meaning of § 823 II BGB. This is correct in law [references]. Nevertheless it holds the defendant liable in damages for the loss incurred by the plaintiff through the closure of the channel because the conduct of its constitutionally appointed organ in violation of its duty is to be regarded as an inadmissible interference with an established and active commercial or industrial enterprise. This reasoning, and partly also the result, are open to legal doubts.

(a) Liability based on interference with the right to an established and active commercial or industrial enterprise is subsidiary in character and is incurred only if no other remedy exists, and if the rules in force governing a certain topic viewed as a whole disclose the existence of a gap, which must be closed with the help of § 823 I BGB [reference]. An examination of the case from this angle leads to the following conclusions.

As regards the plaintiff’s motor vessel Christel, any claim for damages on the ground of interference with a right to an established and active commercial or industrial enterprise is ruled out to the extent that damage to property has occurred which leads to loss. For property is damaged not only if the substance of an object is adversely affected but also by any other actual interference with the right of an owner [references]. In the present case property of the plaintiff in the motor vessel Christel has been damaged inasmuch as the vessel was forced to remain at the loading stage of the mill because the channel was closed. It was consequently unable to move beyond that area of the channel between the loading-stage and the beams which formed a bar. It was therefore practically eliminated as a means of transport and was incapable of normal use. The ‘imprisonment’ of the vessel therefore constituted a factual interference with this vessel which affected the rights of the plaintiff as an owner. In denying an interference with property in a similar case the Reichsgericht [reference], contrary to the present Division, clearly proceeded from the assumption that an interference with property in the meaning of § 823 I BGB can exist only in an interference with the substance of an object, but not in any other kind of interference [reference]. Such a narrow interpretation of § 823 I BGB does not, however, accord with the purpose of this provision. This is to protect the rights enumerated therein against any culpable illegal violation. The defendant, who is responsible for the conduct of its constitutionally appointed representative (§§ 89, 31 BGB), who, in violating its duty caused damage, is therefore liable to pay compensation to the plaintiff for the damage arising from the ‘imprisonment’ of the motor vessel Christel: § 823 I BGB. To this extent any liability of the defendant is excluded on the ground of illegal culpable interference with the rights of the plaintiff in an established and active commercial or industrial enterprise. Moreover it must remain undecided as to whether any such interference has taken place at all.

As regards the claim for damages in respect of the river boats which could not use the channel the answer must be different. To this extent the defendant has not interfered with the property of the plaintiff for the reason that the river-boats were not affected in their capacity of means of transport by the closure of the channel and were thus not diverted from their natural use. This conclusion is not altered by the fact that the plaintiff was unable to dispatch the river-boats to the loading-stage of the mill while the channel was closed. This cannot be regarded as an interference with property, but is a restriction of the plaintiff in the enjoyment of the common use of the channel together with all others who engage in shipping. Such common use is not, however, ‘another right’ in the meaning of § 823 I BGB [reference].

(b) Therefore the question as to whether the violation of their duty by the constitutionally appointed authority is to be regarded as an inadmissible interference with an established and active commercial or industrial enterprise is only relevant in respect of the plaintiff’s claim for damages arising out of the closure of the channel. This court disagrees with the Court of Appeal which answered the question in the affirmative. The appellant is, however, wrong in arguing that in the present no right of the plaintiff in an established and active commercial or industrial enterprise has been violated if only for the reason that such a violation cannot be committed by an omission. The rights and legal interest which are protected by § 823 I BGB can also be violated through an omission [reference]. The appellant is right, however, in contending that the observations of the Court of Appeal as to whether in the present case the defendant has directly interfered with the plaintiff’s established and active commercial or industrial enterprise is not open to legal objections, at least in so far as they concern the amount of damages in issue.

It is recognized by the practice of the courts that not every illegal and culpable interference with the business activity of another gives rise to claims for damages in accordance with § 823 I BGB. Instead, this is only the case if the interference touches directly the sphere of the commercial or industrial enterprise, therefore centred on the enterprise and does not affect rights or protected interests which can be separated without difficulty from the commercial or industrial enterprise [references]. In the present case no such interference aimed at the plaintiff’s enterprise has taken place. The navigability of a waterway does not fall within the ambit of the commercial enterprise of a person engaged in shipping. A temporary closure of a waterway which also concerns others engaged in shipping does not therefore interfere with the plaintiff’s commercial enterprise. The Court of Appeal wishes to come to a different conclusion in the present case on the ground that the plaintiff’s vessels had used the channel, before its closure, more than others engaged in shipping—at times almost exclusively—and that the closure has temporarily prevented the plaintiff from complying with his contractual obligations towards the mill; but this reasoning cannot be accepted. The existence of such obligations does not mean that the navigability of a waterway, which a person engaged in shipping has to use within the framework of his contractual obligations, is to be regarded as falling within the sphere of that person’s commercial enterprises. The contrary opinion of the Court of Appeal cannot be supported either by the consideration that at the time when the river-wall collapsed the journeys of the plaintiff’s vessel on behalf of the mill represented an important part of the plaintiff’s commercial activities. The question as to what falls within the commercial enterprise of a person engaged in shipping cannot be determined by the fact that one or several of his vessels are principally employed on certain river routes, seeing that this depends on the offers to load them made by third parties. The Court of Appeal is therefore wrong in holding that in the present case the defendant is liable to pay damages for having interfered with the plaintiff’s established and active commercial enterprise also in so far as he could not for a time use the channel for his vessels. If this opinion were accepted it would mean that common users would be protected under the heading of ‘any other rights’ of § 823 I BGB, if only by the circuitous route of a right in an established and active commercial or industrial enterprise.

It follows that the judgment appealed against is only to be upheld to the extent that it declares the plaintiff’s claim arising out of the ‘imprisonment’ of the motor vessel Christel to be justified (DM 24,086). The additional claim (DM 6965) must be dismissed.

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