The new JUVE Handbook of Commercial Law Firms 2024/2025 arrived in the mail today and we’re in it! Apparently we were ‘often recommended’ in the field of transport and maritime law. For us as a small commercial law boutique, it is not a matter of course that recommendations have brought us into the rankings of JUVE and Legal500, the two most important rankings for commercial law firms in our opinion. Thank you!
One of the greatest privileges of our job is to see and learn new things every day. Contact with other cultures, legal systems, alternative decision-making methods and other ways to negotiate is simply exciting. In addition to contract and crisis negotiations, our tasks abroad often include the assertion of claims, often arising from commercial relations or transport damage. If legal proceedings become necessary, we manage these for our clients. It can happen that we travel all over the world to pursue our clients‘ interests locally. This week I am in Canada for a mediation and our colleague Dr. Dansalia is in Chandigarh, India, to support our local colleague there.
One element of proceedings in common law countries that fascinates me because of the complexity, the effort involved and the challenges for lawyers and clients are the discoveries or depositions.
In Canada and other common law countries, civil proceedings involve a stage called „discoveries“ which is a pre-trial taking of evidence. This is where both sides exchange information and evidence to understand each other’s case better. It includes oral examinations (called „examinations for discovery“) where lawyers question the other side’s witnesses under oath to gather facts. This very complex process leads to an impressive investigation of the case.
In Germany or other civil law countries, civil proceedings do not have a similar discovery phase. Instead, the „taking of evidence“ happens during the trial itself. Here, the judge plays a more active role in gathering and examining evidence. Witnesses and experts present their testimony directly to the judge, who decides what evidence is relevant and admissible. The process is more controlled by the court, with less back-and-forth between the parties outside of the trial. However, the parties have a great deal of influence over which facts they present and offer as evidence. The court can then only take evidence on the facts presented and by taking the evidence offered by the parties.
So, the main difference is that common law proceedings emphasize pre-trial information exchange additionally to the process of taking evidence during the trial itself, while in many civil law proceedings, the evidence is primarily gathered and assessed during the trial under the judge’s guidance.
From our experience with proceedings in common law and civil law countries, the procedure with discoveries or depositions is more complex, longer and more costly. Sometimes it may lead to earlier settlement. If there is a choice, for example in arbitration proceedings or in cases where there is a place of jurisdiction in both systems, the time and cost factor probably argues for the civil law taking of evidence.
Am I to shaped by my roots in the civil law system? Or can this be objectively determined? What is your experience?
Many of our cases involve parties from different countries and jurisdictions. Therefore we are often faced with the challenge of having to put together international teams of specialized lawyers, surveyors, investigators, IT- and other experts. In these cases we face the same challenge as, for example, foreign insurers or industrial companies that have to handle claims in Germany.
How do we proceed?
If someone is looking for suitable lawyers in Germany, the system of bar certified specialist lawyers is helpful for orientation. The German bar associations can grant specialized lawyers the title of a bar certified specialist lawyer (Fachanwalt) for a specific area of law on a uniform legal basis. The prerequisites are admission as a lawyer for at least 3 years and special theoretical knowledge that has been proven in a course of 120 hours with a final written examination lasting no less than 15 hours. Finally, the lawyer must prove his practical experience by providing the Bar with evidence in 80 cases he has personally worked on. With over 165,000 lawyers in Germany, the search can be narrowed down to a shortlist for example of just under 250 bar certified specialist lawyers in the fields of transport and forwarding law and international commercial law. These can usually be accessed via the electronic search engines of the local chambers.
This year, the INTERNATIONAL UNION OF MARINE INSURANCE (IUMI) is celebrating its 150th anniversary. We are honored to be a sponsor for the second time after 2015 at IUMI’s annual conference in Berlin in this special year.
IUMI represents the transport insurance industry internationally as a global federation and is the oldest international association in the insurance industry. The members of IUMI are the respective national insurance associations.
Transport insurance itself is even older. As early as 3000 BC, associations of Phoenician merchants in the eastern Mediterranean compensated their members if a ship’s cargo was lost. Babylonian merchants created similar structures for land transportation around 2000 BC to cover losses caused by robbery and attacks on their caravans. Without transport insurance, international trade and a global economy in the form that exists today would be inconceivable!
We are proud and grateful to be at home in this traditional and always global sector for more than 20 years now and to be able to advise on questions of transport insurance law, transport law and international trade law. We look forward to a successful conference in Berlin in 2024.
In our latest issue of Business law Briefings, we look at the liability of the German ocean carrier. Hapag Lloyd, Hamburg Süd and others play a not insignificant role as ocean carriers on the world market. In their B/L conditions, they often provide for the applicability of German law and a place of jurisdiction in Germany. Reason enough to take a brief look at the liability of these carriers.
Legal 500, one of the leading international law firm rankings, in 2020 again ranks KUSS Rechtsanwälte among the best commercial law firms in Germany in the field of Transport Law.
Based on its research in the editorial section Legal 500 has come to the conclusion (our translation):
„Kuss Rechtsanwälte Partnerschaft mbb is highly specialized in the field of International Transport, Forwarding and Warehousing Law. The focus of activities of the four-member team of bar certified specialists (Fachanwälte) lies in complex cases of major transport damage as well as in the conduct and defense of recovery claims. In addition, the team around Robert Kuss and Corinna Kuss advises policyholders and insurers on transport insurance coverage. A particular added value regarding the international activities of the law firm lies in the legal advice and consulting offered in English, French, Italian, Spanish and Russian.”
We were particularly pleased with the references:
„The law firm is very competent, reliable and always adheres to the given schedules. In addition, the team is characterized by patience and perseverance even in stressful situations.”
„The law firm is our first address in Germany in the field of Transport Law. Especially in the field of road transport the team is unbeatable in terms of efficiency, transparency, expertise and experience.”
‘Robert Kuss is outstanding in competence and client service and has excellent negotiating skills.”
You can find the ranking under the following link:
https://www.legal500.de/c/deutschland/transport/transportrecht/
According to the case law of German courts, damage to transported goods is to be assumed if damage could have occurred as a result of an event, even if it is not externally recognizable.
If machines or other technical equipment, pharmaceutical products or food are not transported as intended, it is often discussed in practice whether a damage or even a total loss is present, although a damage is not externally recognizable.
The interests of both sides are clear: no consignor wants to guarantee that goods that have not been transported as planned are actually undamaged. The carrier on the other hand does not want to pay compensation if the goods are not noticeably damaged. Typical examples are tilted sensitive machines, moisture damage and temperature deviations in pharmaceuticals or foodstuffs.
German case law considers a well-founded suspicion of damage to be damage to transported goods.
In a fundamental, very comprehensible decision, the Federal Court of Justice (BGH) has clarified for German law and the application of international conventions in Germany that indemnifiable damages can also be assumed to exist without any established substance damage solely on the basis of a well-founded suspicion of damage to the object. In this case, the owner must have the object examined for such damage in order to remove the suspicion of damage or to be able to repair the object. The inspection costs shall also be reimbursed if the inspection leads to the conclusion that there is no damage. If the probable examination costs exceed the value of the object, the BGH is of the opinion that an economic total loss of the object is to be assumed even without an established substance violation, cf. BGH, TranspR 2002, 440.
The Regional Court of Hamburg has consistently taken up this thread and decided that the expiration of the factory guarantee of a transformer due to a considerable impact leads to a total loss of the transformer. This is the case even if the transformer should retain its physical functionality without impairment despite the impact, see Landgericht Hamburg, RdTW 2019, 143 ff.
Robert N. Kuss, LL.M. oec.
A breach of specific contractual agreements constitutes qualified fault and leads to unlimited liability of the carrier.
The carrier’s liability for losses caused in its custody is limited. The lower the weight and the higher the value of the goods, the greater is the gap between the consignor’s damage and the compensation the carrier has to pay. Only in the case of willful misconduct or reckless fault, the limitations of liability do not apply. It is therefore not surprising that questions of such qualified fault and thus of unlimited liability are of great importance for shippers and carriers.
In legal proceedings conducted by us before the Hanseatic Higher Regional Court (Hanseatisches Oberlandesgericht) of Hamburg, the court again clarified in a notice in June of this year that a breach of specific contractual agreements constitutes qualified fault.
The case concerned a consignment of cigarettes to be transported within Germany. During a stop on an unguarded motorway station over the weekend, the trailer was cut open and a considerable number of cigarettes were stolen. However, it was contractually agreed between the shipper and the carrier that overnight stops were only permitted with the shipper’s prior consent. The Higher Regional Court (Oberlandesgericht) of Hamburg, which only rarely assumes a qualified fault, saw the breach of this clear regulation as a qualified fault leading to unlimited liability.
In the same way the Regional Court (Landgericht) of Bremen decided a few months earlier in its judgement of June 6, 2018, file no. 11 O 169/17: Clauses in a transportation contract according to which stops are only permitted on guarded and video-monitored parking lots are valid. If the carrier does not adhere to these requirements, he acts, according to the judgment, at least recklessly and is liable without limitation.
Consignors of theft-prone goods should therefore agree in the contract that only guarded parking lots are permitted for stops, and carriers, if they consent to such agreements, should inform their drivers or subcontractors accordingly, otherwise unlimited liability is imminent.
Robert N. Kuss, LL.M. oec.
In practice, it happens again and again that ocean carriers forget or fail to inform the consignee of the arrival of containers at the port of destination and that, after the agreed demurrage free time has expired, the cargo is handed over only concurrently against payment of demurrage. Carriers justify the charging of demurrage with bill of lading terms and conditions expressly excluding the obligation to provide information on the arrival of the cargo at the port of destination.
Under German law such clauses in the bill of lading terms and conditions are ineffective. The delivery of cargo requires that the consignee is put in a position to take possession of the goods and that he indicates his willingness to take possession. Terms and condi-tions of a bill of lading cannot facilitate delivery unilaterally, as this would undermine lia-bility for proper delivery. This, however, inevitably presupposes that the consignee is informed where and when he can collect the cargo.
The Higher Regional Court of Thuringia recently informed the plaintiff in a litigation relat-ing to that question that his appeal had no chance of success. (Decision of June 25, 2019, Ref.: 7 U 119/19.) The first instance had decided that the carrier has to repay the demurrage costs.
Maxim Miskewych, Attorney at law and bar certified specialist in international business law
Maxim Miskewych was awarded the title of a Certified Specialist for International Business Law by the Cologne Bar Association.
A bar certified specialist (Fachanwalt) is a lawyer with proven expertise and practical experience in a particular area of law. The title is awarded by the Regional Bar Associations after having intensively examined whether the necessary prerequisites are fulfilled according to the Rules on Certified Specialist Lawyers (Fachanwaltsordnung). The lawyer has to demonstrate knowledge and skills in his specialty area reaching far beyond those generally gained during education, training and practical job experience.
Prior to achieving the status of specialist, the lawyer has to attend a 120 hour specializing course and pass several examinations. Moreover, the handling of a certain number of cases in the specialized area must be proven. A lawyer bearing the title “bar certified specialist” has to prove every year to have further expanded his expertise to the prescribed extent.
The German Rules on Bar Certified Specialist Lawyers (Fachanwaltsordnung) provide for a bar certified specialist in international commercial and business law to demonstrate special knowledge in the areas of
We congratulate Maxim Miskewych on successfully obtaining this title, which documents his remarkable competence in this demanding and important field of law.