Germany – Legislation

Introduction to German Air Traffic Act (LuftVG)

The Federal Republic of Germany is a State Party to the Warsaw Convention and to the Montreal Convention. As Germany is a member of the European Union, it is also subject to European legislation.

The main national legislative instrument is the Air Traffic Act or  Luftverkehrsgesetz (LuftVG) as enacted on 10 May 2007 (BGBl. I 698) with the latest amendment as of 5 August 2010 (BGBl. I 1126).

The second part of the Act lays down a regime for civil liability in connection with the operation of an aircraft:

Sections 33 – 43 provide for a liability of the operator (Halter) for damages for death or personal injury of individuals and damage to property which are not carried in the aircraft in connection with the operation of an aircraft. It follows from section 33(1) that the liability is strict; however, the liable person can limit its liability in accordance with section 37.

Sections 44 – 52 establish liability for damages of the carrier (Luftfrachtführer) vis-à-vis the passenger when a contract of carriage exists. According to section 44, the provisions are only applicable as far as the Warsaw Convention, the Montreal Convention or the Council Regulation (EC) No 2027/97 (as amended by the Regulation (EC) No 889/2002) do not apply or do not lay down rules.

Section 45 of the Act provides for a strict liability of the carrier for death and personal injury of a passenger caused by an accident on board the aircraft or in the course of embarking or disembarking. Under the preconditions of section 45(2), the carrier is in the position to limit its liability.

Section 46 establishes strict liability of the carrier for damages caused by delay in the carriage of the passenger. According to section 46(1), liability is excluded if the carrier and its servants or agents have taken all reasonable measures to avoid the loss or where they were unable to do so.

Section 47(1) sets out that the carrier is strictly liable for damages in case of loss of or damage to baggage carried on board the aircraft; liability is excluded if the loss is caused by the nature of the baggage or inherent vice. Section 47(2) provides for a strict liability for delay in the carriage of checked baggage; again,  liability is excluded if the carrier has taken all reasonable measures to avoid the loss or where unable to do so. Section 47(3) establishes liability of the carrier for loss of or damage to the personal belongings of the passenger; here, liability requires fault on the part of the carrier or its servants or agents. With regard to all of these instances of liability, section 47(4) gives the carrier a general right to limitation. According to section 47(5), the carrier loses this right if the loss has been caused intentionally or due to gross negligence.

Section 48b provides for joint and several liability of the contractual carrier and the performing carrier.

Section 49a sets out that claims are extinguished after a period of two years, counting as from the day on which the aircraft has or should have arrived at its destination or on which the carriage has been terminated.

Pursuant to section 49c, liability as established by the above provisions can not be excluded in the case of commercial carriage. The provision expressly states that exclusion clauses to the contrary are of no effect.

In accordance with section 50, the carrier is obliged to obtain insurance covering its liability.

Sections 53 and 54 contain special provisions applying to military aircraft.

Section 56 lays down the optional jurisdiction of specific courts, such as jurisdiction of the court at the place of destination or at principal place of business of the contractual or performing carrier.

For the full text (in German language) of the Luftverkehrsgesetz see:

http://www.gesetze-im-internet.de/bundesrecht/luftvg/gesamt.pdf

 

 

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