Third-party liability of classification societies : a comparative perspective

Classification societies are charged with the technical supervision of maritime shipping to enhance the safety of life and property at sea by securing high te- nical standards of design, manufacture, construction and maintenance of seagoing vessels. Each and every shipping catastrophe caused by a technical defect reminds the maritime world of the central importance of the vessel's proper technical supervision. Correspondingly, the liability of classification societies has become a particularly discussed issue over the past years. Their contractual liability is usually limited by general terms and conditions incorporated in the classification rules and cases brought by typical contracting partners of classification societies, such as ship owners and ship yards, are not an issue in the current debate. H- ever, one can note a substantial worldwide increase of actions brought by parties who are not in privity with classification societies. This study focuses on third-party liability of classification societies. It ori- nates in an expert opinion on selected issues relating to third-party liability which the authors compiled for the German classification society Germanischer Lloyd AG. Driven by the highly interesting legal issues and unexplored shores in this area of law, we continued our research and are able to present a relatively c- prehensive overview on the law on third-party liability of classification societies. Given the origins of our work, the discussion of limitations of liability clauses is based on the standard terms and conditions of the Germanischer Lloyd, version 2005.

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

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