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Case:
BGH NJW 1976, 46 VI. Civil Senate (VI ZR 43/74) = JZ 1975, 733
Date:
07 October 1975
Translated by:
K. Lipstein
Copyright:
Professor B.S. Markesinis

The plaintiff, the Gas–Electricity and Waterworks of the City of K, as holders of the right to draw water for their undertaking, claimed damages in respect of expenses incurred or likely to be incurred in the future as a result of the pollution of the water-table by petroleum waste. The plaintiff alleged that the fourth defendant, a petrochemical enterprise, had engaged the first defendant on the recommendation of the second defendant—an independent expert on damage by mineral oil and de facto manager of the first defendant—to carry and safely to dispose of their oil waste consisting mainly of a mixture of oil and water. In carrying out this assignment, the first defendant had installed ovens and barrels in a gravel-pit filled with refuse situated in an area which had been designated by the government as a protected water-zone for the use of the waterworks. No licence had been obtained, although the first defendant had been given to understand by the competent authorities that it would be forthcoming, if certain conditions were complied with.

On being alerted by an outsider that the oil waste had not been disposed of expertly, the plaintiff caused boreholes to be sunk and excavations to be made which disclosed that the water-table was covered by an extensive body of oil. In the action against the fourth defendant the plaintiff sought to be reimbursed for the expense of drilling observation wells and of collecting and examining samples of water and soil.

The District Court, by a separate judgment, rejected the claim against the fourth defendant while allowing the other actions to proceed. On appeal by the plaintiff, the Court of Appeal of Cologne quashed the judgment of the District Court and referred the case back. A second appeal was unsuccessful for the following

Reasons

I. The Court of Appeal has held that the fourth defendant is liable in tort (§ 823 I BGB), as well as on the ground that the plaintiff had acted on his behalf in his interests and in accordance with his actual or presumed intention (§§ 683, 677, 670 BGB), to pay the expenses claimed by the plaintiff if further evidence to be obtained by the District Court reveals that the first defendant has contaminated the water-table to the plaintiff’s detriment by disposing inexpertly of the waste entrusted to him.

1. The plaintiff’s pleadings do not support any liability of the fourth defendant according to the provision of § 22 of the Water Preservation Act (WHG) which establishes extensive strict liability for such expenses in the instances enumerated there.

(a) § 22 I WHG cannot serve as a basis of the claim, if for no other reason, because no act of the fourth defendant was objectively capable of allowing the waste produce to seep into the water-table [references]. The fourth defendant has not even envisaged and accepted the possibility that the oil waste might be disposed of in this manner nor were the measures taken by him for the destruction of the waste in fact capable of allowing the waste to seep into the water. The circumstance that by handing the waste over to the first defendant he enabled the latter to dispose of it improperly, contrary to a contractual arrangement, does not suffice to attract liability under § 22 I WHG. This provision was not intended to create such an extensive liability for the unauthorized conduct of third parties . . .

(b) The fourth defendant cannot be held liable under § 22 II WHG because the noxious substances infiltrated into the water-table from the first defendant’s installation but not from that of the fourth defendant from which they had already been carried away.

2. Liability for damage caused by the fact that waste materials seeped into the water-table is not, however, confined to the situations enumerated in § 22 WHG. This provision was intended to reinforce the protection against interference with the quality of water by introducing strict liability; in the absence of an express statement to this effect this provision, like any other establishing strict liability, does not preclude claims based on tort or on quasi-contract [acting for another without authorization; references].

The Court of Appeal was also correct when considering this ground of liability that the right of the plaintiff enjoyed by virtue of §§ 46 ff., 200, 203 of the Prussian Water Act was not affected by subsequent legislation [references]. The right to extract water is an absolute right in the meaning of § 823 I to be respected by everybody [reference], capable of being violated by the pollution by noxious substances to the water-table in the area of the intake operated by the plaintiff’s waterworks [reference]. The Court of Appeal was right in holding consequently that the fourth defendant must prevent as far as possible any such interferences with the right to extract water by waste products and that if he fails to act in accordance with the care required in daily life he must, inter alia, pay for the necessary measure to avert the danger to the supply of drinking-water by the waterworks as a result of a pollution of the water-table [references].

II. 1. As stated, the producer of such industrial waste which is a source of danger to the environment in the absence of special measures is liable, irrespective of other special rules of conduct and of the legal consequences resulting from their infringement under § 823 I BGB, to take the necessary steps in the execution of the general duty of care to safeguard the public in general [Verkehrssicherungspflicht] derived from § 823 I BGB to avoid that the (potential) danger results in damage to third parties. Just as the producer of goods is subject to this duty in respect of goods introduced into commerce [references] the producer of industrial waste must also seek to avert within the limits of what is practicable any usual dangers emanating from by-products ‘of negative value’. It is irrelevant in this connection that they are not for sale, as is also that their manufacture is allowed. The fact alone determines that the manufacturer has created the source of danger and must render it safe for third parties within the limits of what is possible and can be expected of him. This general principle of the law of tort [reference] has its counterpart, as regards objective imputation, in the maxim which also dominates in public law relating to the environment to the effect that he who causes damage to the environment must also pay for it [references] . . .

2. The Court of Appeal has found, without contravening the law, that the waste containing petroleum constitutes a special danger for the maintenance of the water-table if it is stored or destroyed inexpertly. Given the danger to the environment, especially having regard to the quantity of petroleum waste products produced by the fourth defendant (about 570 tonnes in approximately two months), strict care was required in storing and disposing of it. The Court of Appeal stressed correctly in this connection that a harmless disposal of the waste was technically difficult and therefore demanded a special method and a special installation for destroying it if the danger of inexpert or incomplete destruction was to be avoided; and that at least greater storage capacity and longer storage was necessary with its attendant perils.

3. The Court was right, moreover, in holding that the fourth defendant was not obliged to store, and dispose of, the waste himself, but could delegate this task to an independent enterprise which could not be regarded as its aide in the meaning of § 831 [editor’s note: the judgment refers wrongly to § 832] BGB in the absence of a relationship of dependency. In such circumstances, the fourth defendant was, however, bound to see to it that the necessary safety measures were taken properly in order to prevent damage to third parties by the disposal of the oil waste.

(a) Naturally the supervision of a specialized enterprise is limited by the need for a trusting collaboration, and by the independence and the immunity from orders of the agent; it would mean straining excessively the requirements of care in the face of economic and technical reality if the principal were asked to control at every step the manner in which the agent operates. On the other hand, those subject to duties of care to safeguard the public in general are not always released of their responsibility for the sources of danger which they have created if another is equally bound to take safeguarding action by virtue of a contract. Instead they may be obliged, if the circumstances so require—as for instance in an acutely dangerous situation [reference: fireworks] or if serious reasons exist for doubting whether the agent will take sufficient account of the dangers and the need to safeguard against them [reference: Mosel Lock construction]—to control the work by the enterprise entrusted with it or to intervene in case of necessity [reference]. In particular, the duty is not discharged if an enterprise is employed which does not offer a sufficient guarantee that the necessary safety measures will be taken; for in those circumstances the delegation to such an enterprise of the duty to safeguard the public only increases the danger of damages to third parties. In such a case those subject to a duty of care to safeguard the public in general cannot plead that by the interposition of an independent enterprise their power controlling the source of danger has been curtailed. They had the opportunity to select the agent carefully; the more their influence is limited by the independence of the enterprise to which the task is delegated, the more the duty to select the enterprise carefully must be taken seriously. They are liable if the danger materializes, since they themselves brought it about by employing an unreliable enterprise.

(b) The appellant argues that petroleum waste is no more dangerous than the petroleum produced by the fourth defendant. Since the fourth defendant cannot be held liable for damage caused by an inappropriate use of the petroleum after it has been delivered to his customers he cannot be liable either if an enterprise engaging in the destruction of waste employed by him disposes of the waste in an improper manner contrary to a contractual arrangement.

This argument cannot be accepted—at least in this generalization. It need not be decided whether and to what extent the manufacturer of goods can also be held liable for damage to third parties when the product is used contrary to its intended use, if the manufacturer ought in this respect to have had doubts about the reliability of the customer [references]. In determining and delimiting the respective spheres of liability it is decisive that the waste incidental to the manufacture of petroleum and its disposal are, so to say, the ‘negative aspect’ of the manufacture and that, according to the general view, its destruction is and remains a matter for the manufacturer, while the ‘destruction’ of the petroleum is in the hands of the customer according to its purpose. If a manufacturer decides to engage in the production of petroleum, he must provide for safe destruction of waste, the more so since this normally requires special measures; certainly resort may also be had to his liability in private law if somebody is damaged by the waste. If the manufacturer employs a third party for the disposal of the waste, he complies with his own duty to safeguard the public in general through the interposition of the third party . . .

4. No legal objections exist against the finding of the Court of Appeal that in the course of the enquiries, which were necessary and could be expected to be carried out before delegating the task, the fourth defendant should have realized that the enterprise employed by him did not at the time offer a sufficient guarantee that the waste would be disposed of safely and that, if the enterprise should have disposed of it in the way the plaintiff alleges, dangers did materialize for which the fourth defendant is liable, not having used sufficient care in selecting the enterprise.

(a) The Court of Appeal is correct in law when it bases its critical appreciation of the first defendant’s action on the primitive conditions in which the installation, established provisionally only, was operated . . . This method did not comply with the provisions of § 34 II 1 WHG according to which even outside a water protection zone materials may only be stored or deposited so as not to create the fear that the water-table may become polluted or that its quality may be affected in any other way. The fact that the installation was set up on a foundation of clay which had been spread over the refuse did not exclude with the necessary degree of certainty a pollution of the water-table—by seeping oil—if only as a result of mixing it with oil [reference], the more so since it was uncertain whether the layer was resistant to water and fluids throughout [reference]. For this reason special measures had to be taken for the protection of the water-table so as to prevent effectively that oil should escape because the containers begin to leak as a result of corrosion, of defective materials or construction, or in consequence of spilling in the course of filling or emptying [references] . . .

At all events the fourth defendant should have realized, when he gave the order, that the installation lacked the simplest safety mechanism for protecting the water-table and that in its actual state the harmless destruction of the waste was not guaranteed, keeping in mind the amount of waste to be destroyed. If so, he should have entertained doubts about the reliability of the management of the enterprise which has so flagrantly disregarded the simplest requirements of safety. In view of such manifest flagrant omissions the fourth defendant could also have foreseen that the first defendant in destroying the oil waste would not seriously consider the protection of the water-table . . .

(b) Having regard to its duty to safeguard the public in general [Verkehrssicherungspflicht], the fourth defendant was obliged to inform himself of the operational conditions of the first defendant before entrusting him with the waste oil. The fact that at the time malpractices in disposing of industrial waste had not seriously concerned the public and the industries involved, as the appellant contends, does not relieve the fourth defendant; given his experience he must have been aware of the possibility and the resulting danger of an improper destruction of such waste . . .

In agreement with the Court of Appeal it must be held that the fourth defendant could not rely on the recommendations of the second defendant, even if he got to know him as a reliable expert on the prevention of damage by oil and that he had been recommended as such by the water authorities and by the department head of the fourth defendant’s insurers. Whether the same considerations would apply also if the second defendant had not been personally connected with the first defendant need not be decided here. At any rate . . . the fourth defendant knew that the second defendant had founded the enterprise together with his wife, who was only nominally the manager, and that in fact he managed the affairs of the first defendant himself.

III. 1. In view of those considerations, the Court of Appeal had held correctly that if the fourth defendant had applied the standard of care required of him, he should not have left it to the first defendant to dispose of the waste, at least not without taking special measures for controlling the destruction. Consequently, the fourth defendant is liable, certainly from the angle of damages due according to § 823 BGB, to compensate the plaintiff for the expenses necessarily incurred in restricting the dangers to the supply of drinking-water, in so far as they are caused by the alleged inexpert operations of the first defendant and would not have occurred if the fourth defendant had properly complied with his duty of care to safeguard the public in general.

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