The plaintiff insurer of a ship owned by a Polish company sought compensation for damage caused by a collision with a Dutch tug operated by the first defendant and navigated by the second defendant.

The plaintiff argued that the defendants' liability resulted from §§ 823.1 and 2 BGB (the German Civil Code) and 511.2 HGB (the German Commercial Code) as well as from art 3 of the Collision Convention 1910, since both States to which the ships belonged were parties to the Convention. According to the Convention, claims are time-barred after two years, so that the statute of limitations would have come into effect on 28 October 2002; but this was interrupted. Between 3 November 2000 and 14 August 2002, negotiations between the shipping companies about claims arising from the collision took place by fax or telephone, so that the limitation period was suspended and the action was brought within the limitation period.

The plaintiff later changed its submission to argue that the Collision Convention 1910 was not applicable, because the collision occurred during a manoeuvre that served to establish a towing connection. The tugboat operated by the first defendant and steered by the second defendant came into contact with the Polish ship in the course of assisting another vessel because the second defendant had not properly considered the current.

The defendants submitted that the plaintiff's claim was time-barred because the statute of limitations according to art 7.1 of the Convention is two years, and this period had long since expired when the complaint was filed. This applies to all bases for claims, including § 823 BGH. The collision did not occur during a manoeuvre aimed at establishing a towing connection or taking over a towing cable, but when the tug wanted to deliver the sea pilot assigned to the tow to the quay.

Held: The claim is dismissed.

The issue of whether the defendants are liable for damages is moot because any claim is time-barred according to art 7.1 of the Convention.

Contrary to the view expressed by the plaintiff in her last pleading, the Convention is applicable here. Article 12 of the Convention regulates the requirements for the liability of shipowners in the event of collisions between different independent ships if ships of different nationalities are involved whose States are parties to the Convention. This is the case here for both ships involved: Poland and the Netherlands are parties to the Convention. The rules of the Convention would only be inapplicable if the ships were not independent of each other, as is the case, for example, of a collision between ships of the same tow (Rabe, Seehandelsrecht, 2nd ed, § 735 HGB, note A 2). Then the special liability of the towage contract comes into play. Contrary to the plaintiff's view, the collision here did not take place in connection with a towing manoeuvre. It may be that the collision happened because the tug wanted to land a sea pilot at the quay, and that this was the sea pilot who was supposed to accompany the tow. However, the towing process has not yet begun when the pilot landed. It is recognised that the special liability arising from a towing contract only begins when the towing cable is taken over and ends when the connection is released. Here the cable had not yet been taken over; the manoeuvre was also not intended to enable the sea pilot to cross over to the tow. Rather, a connection between the manoeuvre that led to the collision and a towing process cannot be identified. The plaintiff has not even shown that there was a towing contract between the ships involved, the implementation of which would have resulted in the collision.

According to art 7.1 of the Convention, claims for compensation become time-barred two years after the event. This period had expired when the complaint was filed. According to art 7.3, a suspension or interruption is possible under the law of the court dealing with the claim. However, the requirements for a suspension or interruption under German law are not met. Here, at best, an interruption would come into consideration if the parties had negotiated the claim. But that is not substantiated by the facts.