Owner Petersen is travelling with his yacht under engine in good visibility in the fairway towards Burgstaaken on Fehmarn. He orientates himself by the green buoy line. After buoy 9, the course to the next green buoy requires a course change to starboard. After this, the yacht collides with an underwater obstacle, comes to an abrupt halt, Petersen is thrown to the ground and seriously injured.
It turns out that a course change should only have taken place after buoy 11. However, it was not in place because the fisherman commissioned by the responsible municipality had pulled buoy 11 in to carry out maintenance work.
Owner Petersen asserts all claims against the municipality. However, the municipality rejects all claims made against it. The fisherman had retrieved buoy 11 and marked the spot with a fishing flag. He then placed a new buoy. Petersen should also have orientated himself to the red port buoys and observed the sector light that was also in operation during the day.
Owner Petersen files a complaint. He had not noticed any fishing flags. In a buoyed fairway, it is not usual to navigate by beacons. In addition, it is customary to orientate oneself by the lateral signs of the side of the fairway being navigated and not by those on the opposite side.
The lawyer comments
The judgement (LG Lübeck, judgement of 19 September 2022 - 10 O 173/18) found that the municipality had breached its official duty to safely regulate shipping traffic in a fairway belonging to the municipal port by temporarily removing a fairway buoy from the fairway without a suitable replacement. If a sailing yacht then runs aground, the municipality is predominantly at fault with corresponding liability consequences for material and immaterial damage in accordance with Section 839 (1) BGB.
The court's main finding was that the municipality had breached its duty to ensure public safety by having the fairway buoy 11 removed by the authorised fisherman. This was because the fishing flag, even with a green-painted float and green flag, was not a suitable replacement.
The court obtained an expert opinion on the nautical issues and used it as the basis for its decision. It emphasised that fairway buoys represent an essential marking of the fairway to be navigated safely, but should nevertheless only be regarded as an aid, meaning that navigation should not be limited exclusively to fairway buoys. It could be wrong to adhere exactly to the buoy line, especially in curves.
It is therefore always necessary to work with the nautical chart and adapt one's own course to the course of the fairway, also using the echo sounder.
Against this background, the Lübeck Regional Court assumed contributory negligence on the part of the owner Petersen and reduced the claims by one third. Admittedly, the fault of the municipality was to be assessed significantly higher. However, owner Petersen should have recognised by careful navigation in the nautical chart that buoy 11 was missing, in particular because of the large distance to the next buoy after passing buoy 9. In this respect, additional orientation to the port buoys on the opposite side of the channel was also required.
The court took a different view of the white sector light. This was not a suitable navigational aid during the day.
The decision of the Lübeck Regional Court is understandable, but in view of the usual behaviour on board shortly before entering port, the ruling is quite surprising.
It is true that the skipper is always required to carry out careful navigation work and to take into account all the navigational aids available to him. On-board practice in comparable situations regularly looks like this: Sails are lashed down, lines are cleared and perhaps harbour handbooks are consulted. After reaching the fairway, navigation is often limited to simply sailing from buoy to buoy - as in the case of owner Petersen. However, this does not sufficiently fulfil the court's high requirements for careful navigation.
