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LOK Report – Frankfurt am Main Higher Regional Court: Damages due to late culpable provision of train paths

If a rail transport company is unable to meet its punctuality obligation under the transport contract with its client due to culpably late provision of train paths and its remuneration is therefore reduced, it can demand compensation from the rail network operator. If the rail network operator assigns the cause of the delayed provision to his area of ​​responsibility, this justifies a facilitation of proof for the assumption of a culpable breach of duty.

In a decision published today (February 6th, 2023), the Frankfurt am Main Higher Regional Court (OLG) confirmed the claim for damages of a good €60,000 awarded by the regional court.

The plaintiff is a railway company. The defendant operates the nationwide rail network. On the basis of the infrastructure contract concluded between the parties, the plaintiff ordered train paths from the defendant. The plaintiff was obliged to provide local passenger transport services to its regional client. Due to delays at stops served by the plaintiff, the client reduced the plaintiff’s remuneration for the years 2016 and 2017. The plaintiff is therefore suing the defendant for damages in the amount of the lost remuneration of a good €560,000.00. The regional court had upheld the lawsuit in the amount of a good €60,000 and dismissed the rest of the lawsuit.

The appeals filed against this by both parties were unsuccessful before the Higher Regional Court. The Higher Regional Court confirmed the basic liability of the defendants. Due to the infrastructure contract, which is to be classified as a rental agreement, the defendant is obliged to enable the plaintiff to use the rails at the contractually agreed train path times. If the defendant makes the train paths available too late, this constitutes a defect in the rented property. For delays and the resulting reductions in remuneration by the client, the defendant must pay compensation for culpably late provision. In this respect, the claim for damages is not limited to significant defects. In principle, the plaintiff is obliged to specifically explain and prove culpable behavior on the part of the defendant. However, if the defendant assigned the delayed provision itself to its area of ​​custody and responsibility in its internal coding system, this justifies a facilitation of proof in favor of the plaintiff. If the defendant later wanted to claim that the delay was not attributable to their area of ​​responsibility, contrary to this coding, they would then have to refute this in each individual case and individually present and prove alternative causes.

Delays of more than 90 seconds, which the defendant assigned to the headings “operational planning/operational management, infrastructure technology and structural reasons” in its coding system, are eligible for compensation. However, the plaintiff has not proven any further culpable breaches of duty. Insofar as the defendant attributed the delayed provision to “extreme influences”, for example in the form of the weather, these were not the defendant’s area of ​​responsibility. Consequently, the plaintiff would have to prove culpable breaches of duty in individual cases. This also applies to so-called “secondary causes of delays”, for example in the form of “dangerous events, train sequence, connection”. The plaintiff failed to provide this evidence.

The judgment is not final. The Senate has allowed the revision for both parties because of fundamental importance.

Frankfurt am Main Higher Regional Court, judgment of February 3, 2023, case no.: 2 U 88/21
(previously LG Frankfurt am Main, decision of May 14, 2021, Az. 2-08 O 318/19)

The decision is below shortly www.rv.hessenrecht.hessen.de available.

Press release Higher Regional Court Frankfurt am Main

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