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Case:
BGHZ 3, 261 I. Civil Senate (I ZR 31/51) Klappschuten -decision = VersR 1952, 128
Date:
23 October 1951
Judges:
Professor B.S. Markesinis
Copyright:
F.H. Lawson and B.H. Markesinis

On 27 July 1948 six ships entered down stream the Datteln lock of the Lippe Side Canal. The first, the tug Dollart, was moored to barges Gesine and Heinrich Hirdseg (HH9), which were moored behind each other to the south wall. In the fourth place followed the MS Edelweiss, laden with 360 tonnes of wheat, on the way from Bremen to Rüdesheim. The Edelweiss lay on the starboard side of the HH9 and was moored to the north wall. Finally came the motor ships Weser I and Nixe moored behind each other to the north wall. The walls of the Datteln locks are strengthened towards the bottom so that their chambers have a conical instead of a rectangular cross-section. As the water-level then stood, with a difference of 7.46 m between high and low water, the clear distance between the wall diminished from 12.77 m above to 12.31 m below. For that reason the lock personnel were instructed to pass through ships side by side of the overall breadth of 11.75 m only.

In the absence of the lock-keeper, the lock was operated by the subordinate T. He asked the skippers of HH9 and Edelweiss beforehand about the breadth of their craft. Edelweiss gave her breadth correctly as 6.67 m, whereas the skipper S gave the breadth of HH9 incorrectly as 5 m. It was actually 5.87 m. The pump operator M received the same answers to his questions. The subordinate T accepted the declared overall breadth as satisfactory, shut the upper gate, and emptied the lock chamber. As the water dropped, Edelweiss and HH9, which originally floated freely, were pressed together and also left rubbing marks on both walls. They were disregarded and the process was continued until the lower water level was reached. It was only when the skipper of the tug Dollart tried to drag the barges Gesine and HH9 that it was noticed that the latter was stuck fast to the Edelweiss and could not be moved. So Dollart dragged only Gesine out. Thereupon T and M, in the lock-keeper’s absence, decided to free the ships by raising the level of water in the lock chamber. The lower gate was shut and the sluice-boards of the upper gate raised 19 cm. The water level rose at a rate of 25 cm in a minute and a half. But the boats that were stuck together did not float up evenly. They were lifted like a roof along their common surface of contact but with their other surfaces listed, hanging on the lock walls. The Edelweiss, which had only a 15 cm freeboard, was threatened with flooding. Despite persistent danger signals the lock personnel failed to stop the rush of water in time. The Edelweiss filled with water and sank. Only the crew could be saved.

The plaintiff, who had insured the owner of the Edelweiss, indemnified him and claimed DM 103,605 as compensation from the defendant as owner of the HH9, on the ground that the damage had been caused by its skipper’s incorrect statement of its breadth. The defendant rejected the claim, disputing the causality of the incorrect statement and attributed the damage exclusively to the unskilful steps taken by the lock personnel.

The Navigation Court declared the claim (originally only for a part claim amounting to DM 10,000) against the defendant and the skipper S justified in full against the latter, but limited as to the defendant to the ship and cargo or their value. Only the plaintiff and the defendant appealed. The Court of Appeal allowed in full the claim, extended in the second instance to the total damage, and now directed only against the defendant, and rejected the defendant’s appeal.

The application for review resulted in the decision being quashed and the case being referred back for the following

Reasons

The Court of Appeal holds that the master’s incorrect statement of the HH9’s breadth was the immediate and adequate cause, not only of the jamming together of the ships, but also of the additional damage that arose from the loosening of the ships from the jam. It went on to say that jamming on leaving a lock, though infrequent, was not extraordinary, and that the instructions to the lock personnel took account of such an occurrence. In any case, the removal of the jam by letting the water in was not an extraordinary but the only solution. Risks in operating locks are always a matter of practical experience. These risks are multiplied if one of the foreseen dangers, here the jamming, intervenes and must be removed in a usual way, in accordance with practical experience. In so doing increased account must be taken of a failure, at the same time both human and technical in character. That is not at all improbable and should, according to general human experience, have been recognized by the bargemaster. Accordingly, the failure of the lock personnel was not enough to break the causal connection between the incorrect information about the breadth and the sinking of the Edelweiss.

It must be conceded to the applicant that the statements concerning the causal connection as a presupposition of the defendant’s liability are not free from legal error. To begin with, the assumption that the blameworthy conduct of the master S was the immediate cause of the damage is not correct. S did nothing to lay Edelweiss alongside HH9 and thereby provide the first condition for the subsequent jamming. The choice of the berth depended on the free decision of the master of Edelweiss. Likewise, the placing of the boat at that spot depended on the decision of the lock personnel, who alone had to determine the occupation of the lock and approved the laying side by side, so as to make better use of the space. However, S’s incorrect statement of the breadth led to that decision and in that way indirectly caused the jamming. It is certain that the lock personnel would not have allowed the boats to be placed side by side, if they had known the correct breadth of the HH9. The incorrect information was therefore, in spite of its merely indirect operation, a conditio sine qua non of the further course of events.

However, this alone does not prove that S caused the damage in such a way as to incur liability. It has long been undisputed in legal literature and case-law that the scope of such natural logical causes is commonly far too wide for all their consequences to be imputed to the person causing them. Hence the jurists have elaborated the concept of adequate causation, which, according to the Reichsgericht’s decision of 18 November 1932 [reference], should make it possible to exclude some conditions, which from the point of view of natural science were conditions of a certain consequence, and without whose existence the consequence would not have occurred, for the purpose of causal connection in a legal sense; and the conditions which are logically most remote from the consequence should be excluded, because a consideration of those conditions would also lead to legal results that are at variance with equity.

Adequate cause has been formulated mainly by von Kries, Rümelin, and Traeger (cf. summary in Lindenmaier, ‘Adequate cause and proximate cause’ in Festschrift für Wüstendörfer, Zeitschrift für das gesamte Handelsrecht und Konkursrecht 113, Heft 3/4 (Stuttgart 1950)). Common to these formulations is the valuation of a concrete conditio sine qua non on the basis of its tendency to favour the consequence according to general standards. They differ according to the point of view from which the valuation is undertaken. While von Kries, the creator of the concept of adequate cause, prefers to undertake a valuation on the basis of all circumstances known or knowable individually to the originator of the condition at the time of its entry (ex ante), and also taking into account general practical knowledge (ex post) based on experience, Rümelin puts forward the theory of ‘objective hindsight’. For the formation of a judgment of possibility he prefers to have regard to the whole empirical knowledge of mankind and all the circumstances anywhere to hand at the time the condition occurred, whether they were recognizable by the most superior discernment or had first become recognizable ex post from events following the condition in question.

Von Kries’s individual foresight proved to be too narrow for private law cases of objective strict liability and contractual liability, Rümelin’s objective hindsight too wide, to exclude with certainty the inequitable results of the condition theory. Rümelin himself accordingly found it necessary to curtail his doctrine, in so far as by the condition in question the injured party was brought into contact in time or in space with the damage-producing event. Traeger avoided the defects in both formulations with the following formulation (Kausalbegriff im Zivil- und Strafrecht (1904), 159): An event is an adequate condition of a consequence if it has in a general and appreciable way enhanced the objective possibility of a consequence of the kind that occurred. In making the necessary assessment account is to be taken only of:

(a) all the circumstances recognizable by an ‘optimal’ observer at the time the event occurred,

(b) the additional circumstances known to the originator of the condition.

The factual situation so established is, according to Traeger, to be examined by applying the whole human experience available at the time a decision is made to see whether it appreciably favoured the occurrence of the damage-producing event (cf. Lindenmaier, op. cit., 223–6).

Traeger’s formulation has been followed in essentials by the Reichsgericht since the decision in RGZ 133, 126, 127, more recently in the form that there is an adequate connection ‘if a fact in general and not under special peculiar quite improbable circumstances, to be disregarded according to the regular course of things, was apt to produce a consequence’.

This formulation expressed until now unaltered in essentials in many decisions (RGZ 133, 126; 135, 154; 148, 165; 152, 49; 148, 38; 168, 88; 169, 91) has also been followed by this Senate, maintaining the grounds for decision laid down by Traeger. Admittedly—as Lindenmaier points out (op. cit., 239, 241)—one must not forget the starting-point of the inquiry: namely the search for a corrective that restricts the scope of the purely logical consequences, in order to produce an equitable result to the imputable consequences. Only if the courts are conscious of the fact that it is a question here not really of causation but of the fixing of the limits within which the originator of a condition can equitably be presumed liable for its consequences, and therefore of establishing in reality a positive condition of liability (Larenz, Vertrag und Unrecht 12, 14; Lindenmaier, op. cit., 239, 241–2), will the danger of a schematization of the formula be avoided and correct results be guaranteed.

That in the case before us the jamming of the boats was an adequate consequence of the incorrect information (concerning the breadth of the vessel) was accepted by the Court of Appeal without error of law. But the jamming produced no provable damage, since matters were at a standstill and the boats lay quietly on an even keel in the lock chamber. However, the first real damage-producing consequence came later, and in assessing them the Court of Appeal did not pay sufficient attention to the possibly necessary restriction of liability, when, while recognizing it the court declined to consider the failure of the lock personnel. It is true that the Reichsgericht has repeatedly recognized that anyone who has caused an accident must also answer for such consequences as are first produced in the course of conduct made unavoidable by the accident, through an intervening lack of skill, because according to human experience it must be taken into account that not all conduct will necessarily be perfect and accompanied by the desired result (RGZ 102, 230; 105, 264; 119, 204; RG HRR 28, 831; RG JW 1911, 755). This principle, however, does not apply without exception and cannot lead to saddling the person responsible for an accident indiscriminately with all consequences that, without his doing, are brought about in a completely unusual and inappropriate way by persons who are completely unauthorized to intervene (cf. the aforementioned decisions RGZ 102, 230 and JW 1911, 755).

The defendant had pointed out that such an unusual and grossly incorrect intervention of the lock personnel did occur and the Court of Appeal should therefore have made a detailed examination of their behaviour, instead of contenting itself with the remark that ‘no matter how significant the signs of the failure of the lock personnel they did not suffice for a break in the causal connection, above all because there could be no question of the accident being intentionally brought about by the lock personnel’.

The question raised by the concept of intentional conduct has no place in this connection, which is concerned only with the concept of causation. It requires only an examination of whether an ‘optimal’ observer would normally have been able to take into account the behaviour of the lock personnel as it is presented—and, for the most part, undisputed—at the moment the condition on which liability was based—i.e. the incorrect declaration of breadth—occurred. The omission of that examination not only justifies the procedural objection raised by the application for review that the factual situation was not exhaustively dealt with, but leads to a recognition that the Court of Appeal did not apply the correct standard for distinguishing between imputable and inadequate consequences.

Among the circumstances which could form independent causes of damage according to the factual situation, the following were to be examined:

1. the fact that the lock-keeper neglected, contrary to § 2 no. 2 of the service instructions, to supervise the operation of the lock in person, that he left the operation to the subordinate who had not been appointed as his representative and who had continued it although the marks of rubbing on the lock walls ought to have made him notice that the boats were jammed;

2. the fact that after the jamming the lock personnel and the pump engineer had, of their own volition and contrary to an express prohibition in the service instructions, tried to break the jam by letting in the water, without warning the lock-keeper, who was alone empowered to do so by the instructions, and leaving to him the removal of the obstacle, and all of it although there was no occasion for precipitate action, since the course of events had come to a standstill once the lower water-level had been reached;

3. the fact, asserted by the defendant and established by evidence, that the lock-keeper would have been able to break the jam without danger to the boats, as he had done on several previous occasions, perhaps by removing obstacles created by good fenders and coverings and by carefully raising the water-level, if need be by manually working the sluice-boards;

4. the fact that the raising of the water-level was so quick that within one and a half minutes the freeboard of the Edelweiss, which was only 15 cm high, was bound to be flooded if the jam were not broken and the boats did not float up as intended;

5. the fact of the failure in the electricity supply, which remains unexplained, when and why it happened . . .

It may be that one or even several of these facts fall within the scope of the dangers which experience would lead one to expect, so that their foreseeability, taken one by one, could be affirmed. Nevertheless it should have been examined whether the coincidence of these manifold conditions, in part possibly accidental, were not unusual and outside the scope of normal risks. In that connection it should be noted that conditions were under consideration which reinforced each other and only in combination led to the perilous aggravation of the situation that had little to do with the original creation of the jam.

The Court of Appeal’s findings of fact do not go far enough to enable the court of review to decide finally the question of causal connection. The part played by the lock personnel in the course of the accident must be elucidated, if need be with the help of independent experts, and then a fresh conclusion reached on the responsibility of the defendant.

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