This was an appeal against a decision of the Regional Court of Hanover (LG Hannover 5 O 26/20) denying a claim brought by a passenger who suffered personal injury while boarding a cruise ship.

Held: Appeal dismissed.

The Regional Court correctly denied the appellant's claim for damages and compensation for pain and suffering. A claim does not arise from § 77 BinSchG (the Inland Navigation Act) [which provides that §§ 536-552 of the HGB/German Commercial Code, which give domestic effect to the Athens Convention 2002, apply equally to the carriage of passengers and their luggage on rivers and other inland waterways] read together with § 538.1.1 HGB. According to the latter provision, the carrier is liable for damage caused by the death or personal injury of a passenger if the event causing the damage occurred during carriage and is due to the fault of the carrier. The appellant has not conclusively demonstrated that the respondent was at fault.

The fault of the respondent is not to be presumed according to § 538.1.2 HGB. Nor is it dispensable according to § 538.2.1 HGB, because the damage was not caused by a 'shipping incident'. According to this provision, fault is presumed or the carrier is liable without fault if the event causing the damage is a shipping incident. According to § 537.5 HGB, a shipping incident is a 'shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship'. The appellant has not shown that any of these incidents occurred, in particular that there was any defect in the ship. According to § 537.6 HGB a 'defect in the ship' is, among other things, non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation, and disembarkation of passengers. It has not been shown that the respondent failed to comply with applicable safety regulations.

Section 7.01.5.3 BinSch-StrO (the Inland Water Regulations) [which sets out rules relating to embarkation and disembarkation of inland waterway vessels] does not come into consideration as a safety regulation in this sense. Apart from anything else, a violation of this provision does not constitute a defect in the ship within the meaning of § 537.6.a HGB. According to that wording, the safety regulation must be 'in respect of' any part of the ship or its equipment. Section 7.01.5.3 BinSchStrO is not a safety regulation 'in respect of' the pier. It does not regulate the safety of the pier as such. Rather, the pier is merely the means of safety regulation 'in respect of' the embarkation and disembarkation of passengers. The latter is the subject matter of § 7.01.5.3 BinSchStrO.

The genesis of § 537.6.a HGB also supports this interpretation. The definition contained therein corresponds to art 3.5.c of the Athens Convention 2002 (Bundestag 17/10309, p 108). This provision reads:

'defect in the ship' means any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers, or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances ...

It follows from this that the safety regulations must relate to a part of the ship or its equipment. It is not necessary that it is a safety regulation which relates to the embarkation and disembarkation of passengers. This interpretation of the wording also corresponds to the sense and purpose that a defect on the ship can also be caused by non-compliance with safety regulations that serve to ensure the functionality and usability of the devices and equipment. An interpretation that is so broad that even the incorrect or omitted use of - functional - parts of the ship or equipment by the crew constitutes a 'defect in the ship' cannot be inferred from the wording.

The appellant claims that the difference in height between the ship and the pier was at least 'two hand widths' and the distance between the ship and the pier was at least 20 cm. With such a difference in height and distance from the pier, there was indeed an objective danger. In such conditions, there is the possibility that passengers will step into the gap, lose their footing, and fall and injure themselves (cp OLG Hamm, judgment of 15 June 1999 - 9 U 249/98 [13]). However, this danger did not need to be remedied. It is well-known that there is always a certain gap between pier and ship. This is necessary because otherwise there would be damage if there was contact between the pier and the ship. If there is an entry from the pier directly into the ship without the presence of a gangplank, increased attention and caution is required from the outset, especially since the distances can change constantly due to even a small movement caused by the water. Passengers must compensate for the resulting uncertainties in the specific situation by paying more attention to these dangers; the respondent, as the operator of the ship who is obliged to provide safety, may also rely on this (see OLG Hamm judgment [16]).

In so far as the appellant argues that there was a malfunction or failure of a part of the ship or its equipment within the meaning of § 537.6 HGB due to the fact that a gangplank was not used by the respondent's employees, the Senate agrees that this not borne out by the facts. Both a malfunction and a failure of the equipment - here, the gangplank - presupposes a defect in the gangplank, which means that the gangplank could not be used due to this defect, or failed during use. The appellant has not presented any evidence of this.

In so far as the appellant states that she did not have to reckon with the gap between pier and ship because both ships and pleasure craft berth in the Masch Lake in Hanover without any gap due to magnetic mooring technology, this does not change the question of the need for remedial action. Even if gap-free magnet technology for mooring ships is now available, this is a special technology which is not common, particularly in the area of leisure shipping. In any case, such technology would generally not be taken for granted, which, according to general safety expectations, could make a gap between the ship and the pier appear unusual.

In so far as the appellant regards the stationing of two employees during embarkation as not being an equivalent substitute for the use of a gangplank, the appellant fails to recognise the standard of due diligence. There is no such thing as 100% safety, nor is it required by law. The question is whether the existing dangerous situation needed to be remedied or was adequately secured by the respondent. Considering the size of the gap, the associated general safety expectations, and the staff supervising embarkation, the use of a gangplank was not mandatory.