RGZ 119, 397 I. Civil Senate (119/27 I) = JW 1928, 1049
14 January 1928
with an approving note by Pappenheim
Translated by:
Kurt Lipstein
Professor Basil Markesinis

On 23 October 1921 at noon, the German three-masted schooner Lisbeth, on a journey through the English Channel to Göteborg, ran aground on the northern tip of the Dutch island of Texel on a sandbank. On 26 October it became a total loss. The plaintiff owner of the vessel sued the defendant captain of the ship claiming damages on the ground that he negligently caused the loss of the vessel. The District Court of Altona and the Court of Appeal of Kiel rejected the claim. Upon a second appeal the judgment of the Court of Appeal was confirmed for the following


The Court of Appeal has found as a fact that during the voyage when the accident occurred, the defendant had not handled the vessel in accordance with the practice of an experienced and able captain of a sailing-ship applying normal care. If the defendant had applied that care required in the circumstances of a normal, proper, and conscientious captain of a sailing-ship, the stranding could have been avoided. However, the defendant lacked the necessary experience and could not possess it in view of his education and previous activity. The plaintiff, himself an old and experienced captain of sailing-vessels, had been well aware of the limits of the defendant’s capacity when he appointed him. In particular the plaintiff had known that the defendant was not sufficiently qualified for discharging the specialized task of commanding the sailing-vessel Lisbeth and was completely inexperienced, especially for navigating in the North Sea. It was true that the plaintiff had not believed that he would suffer damage by appointing the unsuitable defendant; he had, however, been grossly negligent in failing to perceive the danger to the ship as a result of the defendant’s lack of qualification. In so far as the defendant in his written application for the post had stated that he had been in possession of a schooner and was experienced in handling vessels of this kind, the plaintiff had by no means been misled thereby. Considering that the plaintiff was fully cognizant of the extent of the nautical qualification of the defendant, the defendant’s own statement was of little importance. It offended against good faith if the plaintiff, who was well aware when he appointed the defendant that the latter, a young captain without any experience in navigating sailing vessels in the North Sea, would be unable to deal with difficult situations, having regard to his training and experience, now claimed damages against him because the defendant had proved unequal to the task. This held good too if the standard of care required of the defendant was put as that of a normal, proper, and conscientious captain of a sailing-vessel, without regard to the degree of experience possessed by men such as the defendant.

These statements of the Court of Appeal are mainly factual . . . On the strength of these facts the Court of Appeal could conclude, without violating the law, that the defendant was not liable to the plaintiff. The facts as found by the Court of Appeal show that in concluding the contract appointing the defendant the plaintiff knew of the particular personal circumstances of the defendant and took them into account. This indicates a tacit agreement to the effect that in assessing the duty of care incumbent upon the defendant in relation to the plaintiff, the latter’s special circumstances are of essential importance [reference]. As between the parties, the plaintiff could only demand such nautical activities of the defendant which did not exceed the degree of nautical capacity and experience which was known to the plaintiff. The defendant is not liable for any circumstances resulting in damage which arise outside these limits, having regard to the special nature of the contract between the parties. It makes no difference that the defendant . . . should have known that he was not equal to the appointment assumed by him. The findings of the fact by the Court of Appeal show clearly that the accident could not have been avoided even if the defendant, conscious of his nautical deficiencies, had acted with special precaution and care, seeing that objectively he lacked the capacity for doing so. On the other hand, the plaintiff in deciding to appoint the defendant, was fully aware of the extent of the defendant’s nautical qualifications and was not influenced by the fact that he applied for the post and accepted it without reservations.

These observations suffice to support the judgment appealed against. It may be observed, however, that the additional considerations of the Court of Appeal are not free from error. The Court of Appeal states that, leaving aside the special character of the relationship of the parties in issue, according to the general principles of law the defendant had not acted culpably because he had applied all that care expected of a person with his nautical experience.

The Court of Appeal bases its opinion on the view that within the circle of the captains of sailing-ships several groups exist, graded according to their nautical experience. A person belonging to the group of nautical experience similar to that of the defendant could not have avoided the mistakes which caused the accident, even if he had applied the proper standard of care. These considerations conflict with the dominant view in practice and in the literature. This holds that the term ‘the care required in human relations’ must be determined according to an objective standard, which is the requirement in regular and proper human relations, having regard to the individual circumstances. Thus the justified demands of human relations determine what measure of circumspection and care must be applied in order to avoid damage. It is normally to be gauged by reference to the view of a certain limited circle of persons and by the typical qualities of the group of persons who represent a specific range of human relations [references]. Accordingly § 511 of the Commercial Code requires the care of a proper ‘sailor’. If, as in the present case, the command of a sailing-vessel is in issue, the special features of navigating a sailing-vessel and the care of a proper captain of a sailing-vessel is required. Since the just and reasonable requirements of trade form the basis, it is evident that neither the care of a particularly experienced nor that of an inexperienced captain of a sailing-vessel can serve as a standard. Instead that standard of care is decisive which a proper and conscientious captain of a sailing-ship, endowed with normal knowledge, capacity, and experience, is accustomed to apply. If the circle of captains of sailing-ships as defined above were to be divided into groups according to the degree of nautical experience of individual members, the objective standard would become distorted by the introduction of personal circumstances. A group of experienced captains of sailing-vessels, who are incapable of measuring up to serious tasks and who fail in case of need would be useless in trade . . . Although the reasoning of the Court of Appeal contains an error of law, no ground exists for questioning its decision which, as shown above, is supported by other legally valid reasons.

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