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Applicable treaties

Major air law treaties

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

Germany is a party to the following multilateral agreements:

  • Convention for the unification of certain rules relating to international carriage by air (Warsaw) - 29 December 1933;
  • Protocol to amend the Warsaw Convention (the Hague) - 1 August 1963;
  • Convention, supplementary to the Warsaw Convention, for the unification of certain rules relating to international carriage by air performed by a person other than the contracting carrier (Guadalajara) - 31 May 1964;
  • Convention for the unification of certain rules relating to international carriage by air (Montreal) - 28 June 2004; and
  • Convention on offences and certain other acts committed on board aircraft (Tokyo) - 16 March 1970.

International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Yes, German courts usually interpret the similar provisions of the Montreal Convention and the Warsaw Convention the same way.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

Basically, German courts consider the Montreal Convention and the Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death, provided that these Conventions are applicable.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

As per the interpretation of German courts, a carrier is the person or entity that promises the transportation of persons or goods. It is irrelevant whether the carrier undertakes the flight itself or whether it is even capable of carrying out the transportation with its own aircraft. The carrier can delegate the actual transportation.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

  • ‘Accident’: German courts are not consistent in their interpretation. Mostly, a wider interpretation is used. An ‘accident’ is therefore a sudden damaging event from outside the usual operation.
  • ‘Bodily injury’: as per German courts, a bodily injury can be any bodily harm. German courts only consider such problems as compensable if they have a bodily effect and can be classified as illness. It would therefore not be sufficient if the passenger states that he or she suffers fears or that he or she was in emotional distress, but these psychological issues must be of a severity to the effect that they are considered as an illness by a doctor. This is normally the case when the passenger actually undergoes psychotherapy because of the incident.
  • ‘In the course of any of the operations of embarking or disembarking’: as per German courts, the term of embarking or disembarking is seen in light of whether and when the passenger the passenger faces risks and dangers that are imminent in air travel.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

  • ‘No negligence’ defence: the carrier must prove that it and its staffhave not set the cause for the damage. The carrier does not have to prove that it has undertaken all reasonable measures to avoid the damage despite it being caused by another person.
  • ‘Reasonable measures’ defence: in Germany, the requirements regarding ‘reasonable measures’ are very strict. German courts consider an ex ante point of view and take into account what a carefully and reasonably acting air carrier would have done.
  • ‘Wilful misconduct’: German courts apply a shifted burden of proof. Since the claimant is unable to prove any and all actions of the air carrier, it is sufficient that the claimant disputes that the air carrier has acted diligently. It is then up to the air carrier to prove its actions and to put forward how exactly the damage was caused.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

Under article 5 of Regulation (EC) 2027/97 of 9 October 1997 as amended by Regulation (EC) 889/2002 of 13 May 2002, the air carrier must make an adequate advance payment, in the case of death at least 16,000 special drawing rights (SDR) per passenger.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Article 33 of the Montreal Convention

German courts respect the jurisdictions provided under article 33 of the Montreal Convention:

  • domicile of the carrier: the domicile of the carrier is where the carrier is based;
  • the air carrier’s principal place of business: this is where the main management of the air carrier is located;
  • the air carrier’s place of business through which the contract has been made: this can be the local office of the air carrier if the air ticket was bought there. It can also be an IATA travel agency;
  • place of destination: this can be the place of arrival but, in the case of a round trip, also the place of departure if this is also the final destination of the entire trip; and
  • place of residence of the passenger: the party that relies on this place of this as fifth jurisdiction has the burden of proof regarding the prerequisites thereof.

Article 28 of the Warsaw Convention

The jurisdictions under the Warsaw Convention are considered by German courts in the same way as the jurisdictions under the Montreal Convention. However, under the Warsaw Convention, the above-mentioned fifth jurisdiction does not exist.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

German courts respect the two-year limitation period under article 35 of the Montreal Convention and under article 29 of the Warsaw Convention.

It is not regarded as a ‘normal’ prescription period that can be suspended under certain circumstances but any claim is precluded if a legal action has not been filed within the two-year deadline.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Under German legal practice both the contracting and the operating carrier can be held liable, individually and also jointly and severally. The contracting carrier can be held liable for the whole of the carriage and the operating carrier solely for the carriage that it performs. German courts respect article 40 of the Montreal Convention.

Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

Under article 45 paragraph 1 of the German Air Traffic Act (LuftVG), the air carrier is strictly liable in the case of death or injury of a passenger caused by an accident on board the aircraft, respectively during boarding or disembarking. Under article 45 paragraph 2, the carrier’s liability is limited to 113,100 SDR per passenger unless the damage was caused by a negligent act or omission of the carrier or another third person. Up to 113,100 SDR, the air carrier cannot exclude itself unless there was contributory negligence on the part of the passenger.

If domestic carriage (within Germany) is carried out by an air carrier of the European Union, it is not the LuftVG but Regulation (EC) No. 889/2002 incorporating the rules of the Montreal Convention for domestic air carriage in EU member states.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

The liability is strict but limited liability. See question 11.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

Yes. See question 11.

Main defences

What are the main defences available to the air carrier?

The air carrier is strictly liable up to 113,100 SDR. Up to this amount, the carrier cannot exclude its liability except for contributory negligence. Regarding any amount exceeding 113,100 SDR, the carrier can defend itself by proving that it did not act negligently.

Damages

Is the air carrier’s liability for damages joint and several?

Yes, the contracting air carrier and the operating carrier can be jointly and severally liable under German law.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

In the case of contributory negligence, fault is apportioned depending on the extent of the passenger’s fault. The adequate compensation is then reduced by this percentage.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The action has to be filed within two years after the aircraft has reached its destination.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

If another party caused the damage and legal action has been filed against the air carrier, the air carrier can file a third-party notice against the party that caused the damage in order to bind this third party to the outcome of these proceedings. In these proceedings, a judgment cannot be rendered against this third party. However, under German law, a third-party notice does not suspend the prescription period of the Warsaw Convention and the Montreal Convention. Therefore, the air carrier would have to bring protective action against the third party within the limitation period to avoid its recourse claim becoming time barred.

Time limits

What time limits apply?

The time limit depends on the contractual relationship between the air carrier and the third party. Basically, under German law, the prescription period is three years starting at the end of the year in which the incident occurred.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

Article 33 of LuftVG applies. Liability under article 33 is strict liability without any exception or any possibility of exculpation. The liability under article 33 is limited depending on the weight of the aircraft. In the case of an aircraft with a weight of more than 500,000 kilograms, the operator’s liability is limited to 700 million SDR. In the case of death or injury of a person, the liability is limited to €600,000.

Nature and conditions of liability

What is the nature of, and conditions for, an air carrier’s liability for ground damage?

See above.

Liability limits

Is there any limit of carriers’ liability for ground damage?

See above.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

The air carrier is strictly liable except for contributory negligence.

The claimant loses his or her rights if he or she does not inform the air carrier about the damage within three months after he or she had knowledge of the damage and the identity of the air carrier.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

The Montreal Convention or the Warsaw Convention may apply. However, it is disputed in Germany whether such an event is considered as an ‘accident’.

Nature and conditions of liability

What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?

Under German law, an injury or death caused by an unruly passenger or a terrorist event would most likely not be considered as an ‘accident’ as German courts do not see causation between the operation of an aircraft and the event. Such event is not considered as a typical risk of air travel.

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

Not applicable.

Main defences

What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?

Lack of causation. See above.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

In Germany, passenger rights are mainly governed by EU regulations, especially Regulation (EC) No. 261/2004 regarding flight cancellations and delays, as well as denied boarding and overbooking. Also, the Montreal Convention applies in respect of passenger rights. Regarding passengers with reduced mobility, Regulation (EC) 1107/2006 applies. There are no specific rules regarding tarmac delays.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

The rules of public liability apply, article 839 of the German Civil Code in connection with article 34 of the German Constitution.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

Article 839 of the German Civil Code reads as follows:

If a government official intentionally or negligently breaches the official duty incumbent upon him in relation to a third party he must compensate the third party for damage arising from this. If the government official is only responsible because of negligence he may only be held liable if the injured person is not able to obtain compensation in another way.

Liability limits

Are there any limitations to seeking recovery from the government entity?

This is governed in article 839 of the German Civil Code:

If the government official is only responsible because of negligence, he may only be held liable if the injured person is not able to obtain compensation in another way.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

Under German law, a company cannot be held criminally liable by way of criminal prosecution. Only individuals can be held criminally liable, not companies. Criminal liability of an individual may result from an organisational fault.

Under article 30 of the German Regulatory Offences Act, an administrative fine can be imposed on a company, thus also on an air carrier, if a person who is authorised to represent the legal entity or who is a member of the company’s representative organ commits a criminal or regulatory offence by violating the company’s duties. The fine that can be imposed on the company amounts to €5 million in the case of a negligent offence and up to €10 million in the case of intent. The legal duty to care or to maintain safety are examples of such duties of the company that, when violated by the company’s representative, can lead to a corporate fine for the air carrier.

Nevertheless, the responsible person on the side of the company (but not the company itself) may be held criminally liable for any criminal action undertaken by this person.

In German criminal law, there is a ‘principle of guilt’. Accordingly, a certain conduct can only be considered as relevant under criminal law and would thus be subject to prosecution if the person has acted either intentionally or negligently. In the case of the death of a person, a precondition for negligence would be that the responsible person on the side of the air carrier failed to observe the duty of reasonable care and, additionally, that the death of the person was foreseeable and avoidable for him or her.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

The findings in criminal proceedings are not binding on a civil action. However, usually, the judge in civil proceedings will inspect the files of the criminal proceedings and can use these as evidence.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

This is possible by way of an adhesion procedure in which the court can rule on compensation for the victim of a criminal offence.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

The air carrier can limit its liability in the conditions of carriage (eg, liability for consequential damages can be excluded). However, the air carrier cannot limit its liability to the effect that the limits under the Montreal Convention or the compensation rules as per Regulation (EC) 261/2004 are undermined.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

In the case of an injury on board, the injured passenger is entitled to the following positions.

Reimbursement of medical costs

Should the injured party have had any expenses in connection with their medical treatment (eg, costs for medicine, doctor’s fees, transportation costs to see a doctor), he or she is entitled to reimbursement of these costs. The expenses for medical treatment made by the health insurance must be reimbursed to the health insurance company (ie, both the passenger and the health insurance company have their own right to claim).

Damages for pain and suffering

Depending on the severity of the accident and the injury, the injured passenger can be entitled to damages for pain and suffering. The amount of damages strongly depends on the extent of the injury, the number and severity of the operations, the duration of the medical treatment, the duration of the inability to work, psychological consequences, the factual consequences and the question of whether the injured has permanent damages. The amount can range between about €500 (eg, for burns because of spilled coffee) and €20,000 (eg, for permanent damage leading to disablement).

Loss of income

If the injured passenger was not able to work because of their injury, they are entitled to payment of their income to the extent that it is not paid to them by their insurer. However, if the insurer pays sickness benefit to the injured, the insurer is entitled to claim reimbursement from the air carrier.

The right to payment of income exists for the complete time in which the injured party is not able to work.

However, the injured party is obliged to mitigate the damage as much as possible. If the injured party is no longer able to work in his or her profession at all because of the injury, he or she is obliged to find another job that corresponds with his or her abilities or that the injured party can adapt to, or to work part-time.

Should special training or special equipment be necessary for the new job, the injuring party is obliged to pay for this as well.

What damages are recoverable for the death of a passenger?

Under German law and legal practice, in the case of a fatal accident, four types of loss or damage, as given below, are compensable to the dependants of a deceased passenger.

Pre-death pain and suffering

The heirs of the deceased passenger are entitled to compensation in respect of the passenger’s justified claim for pre-death pain and suffering. The heirs may be determined by a last will.

If there is no last will, the legal heirs are determined by law. Basically, under German law the spouse inherits 50 per cent, and children (one or more together) the other 50 per cent. Only if there are no children would the legal heirs besides the spouse be the parents and siblings.

The amount of compensation granted by German courts for pre-death pain and suffering is determined by how long the suffering lasted before the person died. For example, the Federal Court of Justice ruled that in the case of an accident where a person was severely injured and died a few seconds after the accident, no compensation for pain and suffering can be claimed. On the other hand, the fact that the deceased had mortal fears or that he had an early death leads to an increase in the compensation amount.

It is crucial for the amount of compensation whether the injured was conscious and aware of the life-threatening situation or whether he or she was in a state of unconsciousness until his or her death. If the death of the person does not occur immediately upon the event of the accident, but the process of dying only takes a very short time in which the injured does not reacquire his or her cognitive abilities, compensation is not granted at all as the bodily injury is not considered as an immaterial impairment requiring financial compensation.

There are judgments awarding compensation from €500 (death several minutes after an accident) up to €20,000 (death 36 hours after brutal mistreatment).

Funeral expenses

The heirs of the victim who are obliged to bear the funeral expenses are entitled to reimbursement of the funeral expenses. Reimbursable funeral expenses usually are the expenses for:

  • the undertaker;
  • the ‘normal’ mourning ceremony and the subsequent funeral meal;
  • the tombstone;
  • the establishment of the grave; and
  • death notices and ‘thank you’ cards.

In a normal case, the reimbursable funeral expenses will not exceed €20,000. However, if the victim was a well-known person with a wider sphere of activity or influence the reimbursable funeral expenses may exceed €20,000.

Loss of maintenance

If the victim was legally obliged to pay and actually paid maintenance, the dependant is entitled to compensation for the loss of such maintenance. Dependants that are entitled to such a claim for loss of maintenance are usually the spouse, children that are still minors and in some cases also the parents. The more the victim earned, and the younger the spouse and children were at the time of death, the higher the claim for loss of maintenance.

Moral damages

Until the new paragraph 3 of article 844 of the German Civil Code came into force (see ‘Update and trends’), under German law, the loss of a close relative in an accident did not automatically justify a claim for moral damages. Only under certain rather strict circumstances were the next of kin of a deceased entitled to compensation for nervous shock. This is a claim in tort.

Such compensation for nervous shock was granted by German courts only if the three following preconditions were fulfilled:

  • the claimant must be the next of kin of the injured or deceased. Next to family members, the fiancé or the partner in life of the injured or deceased can also be entitled to compensation for nervous shock;
  • the claimant must suffer a severe psychical impairment because of the injury or death of his or her family member or his or her partner. In cases of ‘normal’ mourning, compensation is not granted by the courts. To receive compensation, the claimant must prove an impairment of health that considerably exceeds the impairments, that family members as indirectly affected persons usually suffer from such psycho pathological deficits during a longer period; and
  • the event causing the injury or death of the person must objectively be a sufficient cause for the mental distress of the family member. According to the court rulings, severe injuries or the death of a person is considered sufficient even if the family member did not witness the accident but was only notified of the severe injuries or the death.

 

On 22 July 2017, article 844 of the German Civil Code and various other laws were amended by a new paragraph granting the surviving dependant a direct right to damages for pain and suffering. The new article 844, section 3 reads as follows:

 

The person liable must pay the surviving dependant, who, at the time of the injury, was in a special personal close relationship with the person killed, appropriate monetary compensation for the mental suffering caused to the surviving dependant. A special personal relationship of proximity is presumed if the surviving dependant was the spouse, life partner, parent or child of the person killed.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

The German authority for the investigation of accidents and disruptions is the Federal Bureau of Aircraft Accident Investigation (BFU).

Accidents and dangers to the air traffic must be immediately reported by the pilot, the crew or the owner of the aircraft.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

The BFU publishes its accident reports on its website whereas the identity of the parties involved is kept confidential. These reports can be used in litigation.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Not applicable.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Insurance requirements for air carriers and aircraft operators are set out in Regulation (EC) No. 285/2010 amending Regulation (EC) No. 785/2004 of 21 April 2004.

This Regulation applies to all air carriers and to all aircraft operators flying within, into, out of or over the territory of a member state to which the Regulation applies. Air carriers and aircraft operators shall be insured in accordance with this Regulation as regards their aviation-specific liability in respect of passengers, baggage, cargo and third parties. The insured risks shall include acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion.

For liability in respect of passengers, the minimum insurance cover will be 250,000 SDR per passenger. For liability in respect of baggage, the minimum insurance cover will be 1,131 SDR per passenger in commercial operations. For liability in respect of cargo, the minimum insurance cover will be 19 SDR per kilogram in commercial operation. These figures, however, do not apply with respect to flights over the territory of the member states carried out by non-Community air carriers and by aircraft operators using aircraft registered outside the Community that do not involve a landing on, or take-off from, such territory.

In respect of liability for third parties, the minimum insurance cover per accident, for each and every aircraft, depends on the maximum takeoff weight (MTOW). For instance, the minimum insurance for an aircraft with an MTOW of less than 500,000 kilograms would be 500 million SDR and for an aircraft with 500,000 kilograms or more, the minimum insurance would be 700 million SDR.

The member states shall ensure that air carriers and aircraft operators comply with this Regulation. Member states may request evidence of compliance with the insurance requirements laid down in this regulation.

With regard to Community air carriers, sanctions for infringement of this Regulation may include the withdrawal of the operating licence. With regard to non-Community air carriers, the sanctions may include refusal of the right to land on the territory of a member state.

If the aircraft operator is not a Community carrier, the minimum insurance cover has to be in accordance with article 37 of the LuftVG. The figures are the same as in article 7 of Regulation (EC) No. 785/2004 (ie, it depends on the MTOW).

With an aircraft hull insurance the interest of the owner in the maintenance of the asset value can be insured. The insurer must pay for loss or damage to the aircraft up to the agreed insurance sum.

Another (not mandatory) type of insurance is aviation accident insurance. The insurer must pay the agreed sum to a passenger or to the employees of the air carrier on a strict basis (ie, without clarifying whether or not the requirements for the liability of the air carrier are fulfilled (as would be the case in mandatory liability insurance)).

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

In Germany, the local courts are competent for claims up to €5,000 and the regional courts for claims exceeding this amount.

If the first instance court is a local court, an appeal is possible if the amount claimed is more than €600. In such a case, an appeal can be filed with the regional court.

If the first instance court a regional court), the competent appeal court is the Higher Regional Court.

In special cases, a further appeal (revision) is allowed, which is dealt with by the Federal Court of Justice being the highest German civil court.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

Basically, the party having the burden of proof has to bring evidence. If such evidence is in the hand of the opponent, the court can force the opponent to disclose such evidence.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

If evidence is not at hand, the party having the burden of proof cannot prove its case.

If evidence has been destroyed by the opponent or not preserved, this can lead to a shift of the burden of proof.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

The winning party can recover costs based on the official schedule of lawyer’s fees applicable in Germany in civil law cases. The losing party also has to bear the court fees.

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

Default interest is payable in the amount five percentage points above the base rate.

Settlements

Is court approval required for settlements?

A court approval is not required for settlements. However, if a case is already at court, the parties apply for an official written court order in which the settlement wording is recorded.

What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?

If a settlement is concluded it is only binding upon the parties to the settlement and it does not affect the right to contribution or indemnity from another person or entity.

Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

Not applicable.

Updates and Trends

Updates & Trends

Updates and trends

New statutory right to damages for pain and suffering for surviving dependants

On 22 July 2017, article 844 of the German Civil Code and various other laws were amended by a new paragraph granting the surviving dependant a direct right to damages for pain and suffering.

The new article 844, section 3 reads as follows:

The person liable must pay the surviving dependant, who, at the time of the injury, was in a special personal close relationship with the person killed, appropriate monetary compensation for the mental suffering caused to the surviving dependant. A special personal relationship of proximity is presumed if the surviving dependant was the spouse, life partner, parent or child of the person killed.

In the past, surviving dependants did not have a direct right to damages for pain and suffering under the German Civil Code but only under very strict prerequisites (‘Schockschaden’ - see ‘Moral damages’). With the new law, it will be easier for the dependant survivors to claim for compensation for mental suffering.