Facts

The owner of a German-flagged yacht was sued by another German-flagged yacht owner for compensation after the yachts collided in bad weather. Both vessels had been lying at anchor at the Bay of Tiha in Croatia, about 300 to 350 metres apart, when due to weather changes (wind shift and wind gusts) during the night, the defendant's vessel's anchor loosened and subsequently hit the claimant's vessel.

The first-instance court dismissed the claim on the basis that the claimant did not sufficiently prove the defendant's negligence. The claimant appealed to the higher regional court.

Decision

The higher regional court set aside and remitted the first-instance court decision because the latter had not sufficiently taken into account the principles of two prima facie evidence rules.

First, if a vessel in a steady position drifts away and causes damage as a result, there is prima facie evidence in favour of the damaged party that the vessel was insufficiently secured. A vessel lies in a steady position if it is moored (eg, on docks or dolphins), lying at anchor, lies aground or is stuck in ice.

Second, if there is a collision between a vessel in movement and a vessel that lies in a steady position or at anchor, there is prima facie evidence that the crew of the moving vessel caused the damage. A vessel at anchor means any vessel that lies at anchor or sways.

In principle, prima facie evidence requires a typical course of events which, according to the experience of life, suggests a specific cause or specific culpable conduct and is by its nature so normal and customary that the special individual circumstances are less significant. It is evidence based on experience.

Prima facie evidence can be set aside by the other party by proving that there was a realistic possibility of a non-typical course of events. It is insufficient to simply present to the court any possible other cause of damage. The presented alternative must be a serious and genuine possible other cause.

Comment

The decision clarified the ambit and scope of prima facie evidence for maritime law. New in this decision is the finding that the principles used thus far mainly for inland waters were expressly expanded to include incidents occurring in blue water, at least inshore. Unfortunately, the court did not expressly state this, but it did indicate that it favoured applicability to events occurring anywhere in the open sea.

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For further information on this topic please contact Lars Kortländer or Olaf Hartenstein at Dabelstein & Passehl by telephone (+49 40 31 779 70) or email (l.kortlaender@da-pa.com or o.hartenstein@da-pa.com). The Dabelstein & Passehl website can be accessed at www.da-pa.com.