Secondary burden of proof – extended disclosure obligation under German law – Commentary

The basic concept of “liability” in transport law provides for liability for goods in custody which often approximates strict liability, but the amount is limited. However, this limitation does not apply if the carrier is guilty of a “qualified fault”, that is to say when the carrier has acted intentionally or with fault amounting to intention and these actions have resulted in damage or loss of the goods. In principle, in maritime transport law, only the personal fault of the carrier counts for this purpose, and not the fault of its employees or subcontractors.

In principle, the applicant has the entire burden of proof. Case law facilitates such proof by inferring consciousness of the likelihood of damage as an internal fact depending on the external circumstances of the damage occurring – at least, if the reckless conduct allows this inference depending on the content and the underlying circumstances. .

However, established case law of the Federal Court of Justice assigns a broad disclosure obligation (also known as the “secondary burden of proof”) to the carrier. In this context, the burden of presenting and proving the particular conditions of unlimited liability (which in principle rests with the applicant) is reduced to the extent that the carrier – where possible and reasonable – must provide, in good faith, detailed information on the transport operation and the circumstances of the accident. This is due to the different levels of information held by the contracting parties. In particular, the carrier must also indicate what knowledge he has of the specific development of the damage and what causes of damage he could determine in the performance of his duty of investigation. This duty of investigation and information applies to the carrier even if the cause of the damage does not fall within the operational sphere of responsibility and perception of the carrier.

To fulfill the extended disclosure obligation, the applicant must present factual indications that:

  • suggest, with some probability, the existence of a qualified fault caused by the carrier (personally) or the carrier’s management; and
  • result from the nature and extent of the damage.

There must be a link between these indications and the area of ​​responsibility of the carrier. Mere reference to hidden causes is not sufficient in this regard.

Insofar as this does not exceed reasonable limits, the carrier must also justify any damage prevention measures that have been put in place. If the carrier fails to discharge this secondary burden of proof to the extent required, there is a rebuttable presumption that he is guilty of qualified fault in both objective and subjective respects.

The admission requirement does not technically alter the applicant’s sole burden of proof. It simply facilitates the presentation of proof by giving the applicant access to the information necessary for the assessment of the qualified fault. In the event that even the extended admission obligation does not clarify the facts, the claimant must prove the preconditions of the carrier’s qualified fault. Since, unlike Anglo-American civil procedural law, there is no duty of disclosure in German civil procedural law – rather it is up to the parties to bring the facts into a legal dispute (known as the “principle of submission” or the “maxim of negotiation”) – this legal concept ultimately serves to ensure equality of arms between the parties.

For more information on this, please contact Felix Goebel or Olaf Hartenstein at Arnecke Sibeth Dabelstein by phone (+49 40 31 779 70) or by e-mail ([email protected] Where [email protected]). Arnecke Sibeth Dabelstein’s website can be accessed at

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