Tractor vs. Trailer – The German jurisdiction about the liability of owners

The German jurisdiction about the liability of owners of tractor and owners of trailer has effect on other European jurisdiction.

Distance freight transport is mainly performed by truck-traffic, often with combined vehicles, tractor and trailer. Frequently the operator of the tractor and the operator of the trailer are not the same entity and thus the liability insurers of both units may differ. In most countries, if an accident occurs that involves both units, only the insurer of the tractor is obliged to compensate for the damage. The drivers fault is only attributed to the tractor.

According to German jurisdiction there is no preference for a liability of the operator of the tractor, due to the fact that the trailer does not have a separate driver or guarding person, when the accident occurs, nor a subsidiary liability of the operator of the trailer or his liability insurance (leading decision BGH 27.10.2010 – IV ZR 279/08 and since e.g. BGH 04.03.2015 – IV ZR 128/14; OLG Celle 30.04.2013 – 14 U 191/12; OLG Hamm 12.04.2015 – I-6 U 173/14). The liability of the operator of the trailer is triggered independently of the question, if there is some contributing cause in his responsibility or even only in his sphere of risk. Within the strict liability according to § 7 (1) StVG both, the operator of the tractor, as well as the operator of the trailer, bear the legal responsibility for the behavior of the driver of the tractor alike own contributory negligence (§§ 9 StVG, 254 BGB).

Thus an injured third party has own claims versus the operator of the tractor unit and versus the operator of the trailer. They are joint and several debtors (§§ 840 (1), 421 BGB) towards the injured party owing each full compensation. The claim versus the operator of the trailer exists notwithstanding the fact of the claim versus the operator of the tractor unit. Both bear legal responsibility for the driver’s negligence.

In conclusion the operator of the tractor unit and the operator of the trailer are responsible for 50 % of the injured third party’s damages towards each other, unless there are no specific circumstances demanding a different quota.

This means liability insurers of both vehicle-units are insurers of the same risk. This presents a case of double insurance, which shall be resolved according to the rules of multiple insurance. Consequently the insurer who has compensated the injured third party has an equalization claim (§ 78 (2) VVG) versus the other.

The position of the German jurisdiction (applicable on vehicle/caravan-combinations too) has an effect on foreign jurisdictions. In the case of an accident of combined vehicles in Germany, that have foreign liability-insurers, both the tractor and the trailers insurers are liable to the same degree. If the principle of multiple insurance applies to their relationship, this may give rise to a claim for equalization in height of 50% of the paid compensation (e.g. Vilnius High Court, 06.05.2016 – 3K-3-187-701/2016).

Publisher: NJP Grotstollen, Rechtsanwälte Notare


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