BGH NJW 1984, 2569 II. Civil Senate (II ZR 234/83)
09 April 1984
Translated by:
J.A. Weir
Professor B.S. Markesinis


In the summer of 1980 the plaintiff started to construct an inner harbour wall about 230 metres long out of steel shuttering. The employer and owner of the harbour was the city. On 16 March 1981 while building operations were still in train, the barge TS on entering the harbour collided with and damaged the part of the wall, which had been constructed. The plaintiff repaired the wall and sued the defendant as owner of the barge for its expense in so doing, claiming both in its own right and as assignee of the city.

The Rhine Navigation Court held the claim admissible, but the Rhine Navigation Court of Appeal dismissed it. The Bundesgerichtshof reversed and remanded.


1. The owner of a ship is answerable for damage done to a third party by the fault of any of the crew in the execution of his functions (§ 3 (1) BinnSchG). Not only must causative fault on the part of a crew-member be shown but that person must actually be liable to the third party [references]. The relevant basis of liability here is § 823 I BGB.

2. The Court of Appeal did not decide whether any of the crew were at fault in the collision with the coffer-dam, nor whether the navigational signs at the harbour entrance had been correctly positioned by the city, as the plaintiff alleged. For the purposes of this appeal both assumptions must be made in favour of the plaintiff.

3. According to the Court of Appeal the plaintiff cannot complain of damage to property because the plaintiff did not own the part of the wall which was damaged: it belonged to the city.

The piles driven into the harbour bed were firmly attached to it and formed an essential component of the harbour itself, which was vested in the city. The piles were not there as a merely temporary measure: they were to remain there for the duration of the works. It is irrelevant that at the time of the accident the city had not yet accepted the half-built wall. Important as acceptance is for the contractual relations between the plaintiff and the city (see §§ 640 ff. BGB) it is irrelevant to the question of the ownership of the constructed part of the wall. That falls to be determined by §§ 94, 946 BGB, as the court below correctly stated. This turns on objective factors (permanent fixture to the soil) and not on the attitudes of the contractor and owner of the land. To the extent that these have a role to play under § 95 BGB, the appellant is bound by the finding that the piles were driven into the ground for the duration and not for subsequent removal, so that there can be no question of this being ‘a purely temporary measure’ [references].

4. The Court of Appeal further held that the plaintiff could not base a claim on interference with possession. It held:

At the time of the accident the plaintiff was certainly still in possession of the standing portion of the wall; for the purpose of executing its building operations, it had direct physical control of the building site, the piles already installed, and the wall, on which they were still working. But possession is protected by § 823 I BGB only in so far as it confers a right to possession, use, or enjoyment. The claim under § 823 I BGB is geared in principle to the replacement of the injury to possession, not to injury to the thing itself; but the plaintiff’s claim is addressed to injury to the thing itself so that it does not lie under the heading of interference with possession.

Contrary to the view of the Court of Appeal the plaintiff’s possession of the coffer-dam is a sufficient basis for its claim, on the factual assumptions made for the purposes of this appeal (2. above). The plaintiff was still bound to complete the work after it had been damaged (see §§ 631, 644 BGB). Until the city accepted it, the plaintiff bore the risk of having to repair at its own expense any damage to the wall caused by third parties, and until that was done the city was bound neither to accept the work nor pay the agreed fee. Thus the plaintiff’s possession of the wall was associated with responsibility for its condition. This is enough to support a claim for the cost of the repairs. The case is akin to those where a tenant or lessee is contractually liable to the landlord or lessor for damage done to the thing by a third party. The tenant and lessee have been granted a claim for damages against the third party based on their possession [references]. Those are admittedly cases of ‘liability-harm’ [reference], whereas here it is by reason of his duty of performance vis-à-vis the site owner that the possessor suffers. Nevertheless, this is equally a consequential loss attributable to invasion of a legally protected interest, and it is irrelevant that it is purely economic in nature [reference]. The Court of Appeal was in error to suppose that in NJW 1970, 38 ff. the Sixth Civil Senate had held that a building contractor had no claim based on possession against another contractor for damaging work done by the first contractor and not yet accepted. On the contrary, the judgment expressly left this question open, the first contractor in that case being no longer in possession of the work. . . .

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