The basic concept of "liability" in transport law provides for a liability for goods in custody that often comes close to strict liability, but the amount is limited. However, this limitation does not apply if the carrier is guilty of a so-called "qualified fault" – that is, when the carrier acted with intent or with fault equivalent to intent and such actions resulted in damage to or loss of the goods. In principle, under maritime transport law, only the personal fault of the carrier counts for this purpose, not the fault of its employees or sub-contractors.

In principle, the claimant has the full burden of proof. Case law facilitates such proof by inferring the awareness of the probability of damage as an internal fact according to the external circumstances of the occurrence of the damage – at least, if the reckless conduct allows this inference according to the underlying content and circumstances.

However, the established case law of the Federal Court of Justice assigns an extended duty of disclosure (also referred to as "secondary burden of proof") to the carrier. In this context, the burden of presentation and proof for the special prerequisites of unlimited liability (which, in principle lies with the claimant) is alleviated to the extent that the carrier – where possible and reasonable – must provide, in good faith, detailed information on the transport operation and the circumstances of the loss. This is due to the different levels of information possessed by the contracting parties. In particular, the carrier must also state what knowledge it has about the specific course of the damage and what causes of damage it could determine while fulfilling its duty to investigate. This duty to investigate and provide information applies to the carrier even if the cause of the damage is not within the carrier's own operational sphere of responsibility and perception.

To assume the extended duty of disclosure, the claimant must present factual indications that:

  • suggest, with a certain probability, the existence of a qualified fault caused by the carrier (personally) or the carrier's management; and
  • result from the type and extent of the damage.

There must be a connection between these indications and the carrier's own area of responsibility. A mere reference to hidden causes is not sufficient in this respect.

Insofar as it does not exceed the limits of reasonableness, the carrier must also substantiate the possible damage prevention measures that have been taking place. If the carrier fails to meet this secondary burden of proof to the required extent, it is refutably presumed that it is guilty of qualified fault in both objective and subjective respects.

The duty of admission does technically not change the claimant's sole burden of proof. It merely facilitates the presentation of evidence by giving the claimant access to the information required to assess the qualified fault. In the case that even the extended obligation to admit does not lead to the facts being clarified, the claimant must prove the preconditions of the carrier's qualified fault. Since, in contrast to Anglo-American civil procedural law, there is no duty of disclosure in German civil procedural law – rather, it is up to the parties to bring the facts into a legal dispute (known as the "principle of submission" or the "negotiation maxim") – this legal concept ultimately serves to ensure equality of arms between the parties.

For further information on this topic please contact Felix Goebel or Olaf Hartenstein at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email ([email protected] or [email protected]). The Arnecke Sibeth Dabelstein website can be accessed at