Third-Party Liability of Classification Societies

by Basedow, Jurgen; Wurmnest, Wofgang

• ISBN13: 9783540261841
• ISBN10: 3540261842
• Format: Paperback
• Copyright: 2005-09-30
• Publisher: Springer Verlag

Summary

With the worldwide upsurge of lawsuits against classification societies, their liability towards third parties has become one of the most contentious issues in contemporary maritime law. Against this background, the authors analyze potential third-party claims and examine to what extent classification societies may limit their liability. Given that the major classification societies are global players, these questions must be addressed from an international and comparative law perspective. Therefore, this study highlights the development in Australian, English, French, New Zealand, and U.S. law before discussing the relevant issues under German law.

Table of Contents

Preface	v
Summary Contents	vii
About the Authors	xiii
Abbreviations	xv
Introduction	1	(4)
Part 1: The Role of Classification Societies in the Shipping Industry	5	(10)
Scope of Activities	5	(2)
Economic Background of Ship Classification	7	(1)
Class and Classification Rules	8	(1)
Classification Surveys	9	(4)
Conclusion	13	(2)
Part 2: Third-Party Liability of Classification Societies in Selected Legal Systems	15	(24)
England	15	(6)
Basic Principles	15	(1)
Liability under the Tort of Negligence	16	(5)
New Zealand	21	(1)
Australia	22	(4)
Basic Principles	22	(1)
Liability under the Tort of Negligence	23	(3)
United States of America	26	(7)
Basic Principles	26	(1)
Liability under the Tort of Negligence	27	(3)
Liability under the Tort of Negligent Misrepresentation	30	(3)
France	33	(5)
Basic Principles	33	(2)
The Case Law	35	(3)
Ship Buyer Cases	35	(2)
Other Third-Party Cases	37	(1)
Conclusion	38	(1)
Part 3: The Basis for Liability under German Law	39	(44)
Third-Party Liability for Advice and Recommendation -- Systematic Foundations	39	(5)
Legislative Restraint	39	(1)
Extension of Third-Party Liability in Case Law	40	(3)
Conclusion	43	(1)
Contract to Provide Information	44	(1)
Contract with Protective Effects towards Third Parties	45	(27)
Basic Concept	46	(4)
Classification Agreements	46	(1)
Legal Basis	47	(1)
Prerequisites for Expanding the Scope of Protection to Third Parties	48	(2)
Further Conditions for Damages Claims	50	(1)
Application to Classification Agreements	50	(9)
Differences as Compared to Typical Cases of Professional Liability	51	(1)
Restricting the Group of Claimants	52	(1)
Limitations of Liability in Martitme Law	53	(3)
Pure Economic Loss	56	(3)
Scope of Protection - Selected Third Parties	59	(13)
Ship Purchasers	59	(1)
Groundwork	59	(4)
Class Confirmation based on Records as they Stand	63	(1)
Class Confirmation after Special Survey	64	(1)
Erroneous Certification at Routine Surveys	65	(1)
Hull Underwriters	66	(1)
Shippers and Freight Forwarders	67	(2)
Cargo Underwriters	69	(1)
Crew Members and Passengers	69	(3)
Conclusion	72	(1)
Claims based on the Doctrine of Culpa in Contrahendo	72	(3)
Prospectus Liability	73	(1)
Liability of Agent Availing Himself of Special Relationship of Trust	74	(1)
Conclusion	75	(1)
Claims based on the Law of Delict	75	(6)
Liability under § 823 (1) BGB	75	(1)
Liability under § 823 (2) BGB	76	(1)
Liability under § 826 BGB	77	(1)
Vicarious Liability under § 831 (1) BGB	78	(1)
Product Liability	78	(3)
Conclusion	81	(1)
Conclusion	81	(2)
Part 4: The Extent of Liability under German Law -- Selected Issues	83	(18)
Contributory Negligence	83	(2)
Misconduct by the Injured Party	83	(1)
Misconduct by Third Parties	84	(1)
Limitation of Liability	85	(13)
Background	85	(1)
Validity of Limitation of Liability Clauses	86	(8)
Restriction to Supplementary Performance	87	(1)
Liability Caps and Exclusions for Ordinary Negligence	87	(1)
Exclusion for Ordinary Negligence	88	(3)
Liability Caps	91	(1)
Limitation to Foreseeable Damage	91	(1)
Limiting the Personal Liability of Directors, Officers and Agents	92	(1)
Conclusion	93	(1)
Validity of Limitation of Liability Clauses towards Third Parties	94	(4)
Straightforward Cases	94	(1)
Liability Limitations and Contracts Having Protective Effects towards Third Parties	94	(1)
Subject-matter Review of Standard Contract Terms	95	(1)
Reliance on Liability Limitations does not Violate the Principle of Good Faith	96	(2)
Conclusion	98	(3)
Part 5: Conclusion	101	(4)
Bibliography	105	(8)
Table of Cases	113	(4)
Table of Main Statutes	117	(4)
Index	121