Garden Contamination Case (No 1)

CourtCourt of Appeal of Cologne (Germany)
Federal Republic of Germany, Provincial Court (Landgericht) of Bonn
Superior Provincial Court (Oberlandesgericht) of Cologne.
Garden Contamination Case (1)1

State immunity Jurisdictional immunity Action against foreign State Procedure Service of writ Whether practicable to transmit writ through Ministry of Foreign Affairs Conditions for service of writ by publication Identity of defendant Whether ambassador of foreign State a proper defendant Action against the Union of Soviet Socialist Republics regarding Chernobyl accident

Diplomatic relations Immunity Diplomat Ambassador Action against foreign State Whether ambassador a proper defendant

Jurisdiction Territorial Tort committed outside jurisdiction Effects within jurisdiction Burden of proof

Environment Action against State regarding environmental damage Chernobyl nuclear accident The law of the Federal Republic of Germany

Summary: The facts:The plaintiff lodged a claim against the Soviet Union for damage caused by radioactive contamination arising from the accident at the Chernobyl nuclear reactor in April 1986. He alleged that, because of the danger to health, the crops which he had been growing in his garden in Berlin had had to be destroyed. The District Court (Amtsgericht) of Bonn refused to allow service of the writ in the Federal Republic and the plaintiff appealed. The Provincial Court of Bonn dismissed the appeal and the plaintiff lodged a further appeal with the Superior Provincial Court of Cologne.

Held (by the Provincial Court of Bonn):The complaint was admissible but had to be rejected.

(1) In accordance with the Hague Convention on Civil Procedure of 1 March 1954, to which both the Federal Republic (FRG) and the Soviet Union were parties, transmission of the writ was to be made through the German Embassy in Moscow. Direct transmission to the defendant through

its Ambassador in the FRG as a representative organ was inadmissible. Neither was service of the writ by publication admissible since the Hague Convention restricted the Court's entitlement to exercise its discretion in this regard, even where there was no hope of success for service through the normal channels

(2) The question of whether the Soviet Union was subject to Federal jurisdiction, or entitled to State immunity, did not arise in these proceedings, which were concerned merely with the appropriate procedure for service of the writ.

(3) International jurisdiction ratione loci under Article 32 of the Civil Procedure Code was not established. The plaintiff had failed to adduce any evidence to show that he had suffered loss as a result of contamination arising from the accident at Chernobyl. It was insufficient to refer to heavy fall-out and contamination over the Federal Republic as a whole in order to establish a connecting factor.

Held (by the Superior Provincial Court of Cologne:)The further complaint was admissible but had to be rejected.

(1) The conditions for service of the writ by publication were not satisfied simply because it was not yet clear whether the Ministry of Foreign Affairs would agree to transmit the writ issued against the Soviet Union. In these circumstances it could not be said that service abroad through diplomatic channels was impracticable or offered no prospect of success.

(2) The Federal authorities had only refused to transmit a writ which designated a foreign ambassador as representative of the defendant State. It was now up to the plaintiff to clarify whether service abroad was feasible with the writ as now amended and correctly addressed to the Union of Soviet Socialist Republics represented by the competent authorities.

The following is the text of the judgment of the Provincial Court (Landgericht) of Bonn:

grounds
I.

The plaintiff requests transmission of his writ9 C 362/86, submitted to the Bonn District Court (AG) on 26 May 1986, in which he claims compensation of DM 750 from the defendant for alleged radioactive contamination of a garden as a result of the accident at the nuclear reactor in Chernobyl (Ukraine) on 26 April 1986. The plaintiff alleges that he was growing mixed vegetables and fruit over an area of 780 square metres but that as a result of radioactive damage this will not be possible in the future. In order to avoid damage to health, the fruit and vegetables already produced have had to be destroyed.

The Court referred, in a letter to the plaintiff of 9 July 1986, to doubts concerning whether, as requested, the writ could be served on the Soviet Ambassador in Bonn and demanded an advance payment of DM 1500 for the translation costs of the intended transmission of the claim through diplomatic channels. This was not paid.

The plaintiff has appealed against the refusal of the requested transmission. He contends that:

The plaintiff has also asked for service of the writ by publication.

II.

The complaint is admissible (Articles 270, 271 and 567 ZPO) but in the event is unsuccessful.

The Court has rightly refused to allow the direct transmission of the writ to the defendant's Ambassador in the Federal Republic, referring to the necessity of transmission through diplomatic channels.

Regardless of whether the claimant, because of the subject-matter of the complaint, is subject to German jurisdiction and whether the Court to which this appeal has been made has international jurisdiction, the form and method for transmitting the writ is governed by Article 199 ZPO in accordance with the Hague Convention relating to Civil Procedure of 1 March 1954 (BGBl. 58 II 576), in force in the Federal Republic since 1 January 1960 (BGBl. 59 II 1388). The Soviet Union is a signatory of this Agreement and, in an interpretation which is in accordance with recognized rules of international law, has made the reservation that transmissions from abroad should be made via the competent authorities of the requested State through diplomatic channels (cf. Article 9(3) of the Hague Convention; Stein, Jonas & Schumann, ZPO Commentary, 20th ed., 1984 I, Preface XVM, p. 423 (marginal note 890), VIII marginal notes 45 ff., marginal note 51 to Articles 166 and 199, marginal notes 5, 21 ff.; Zller & Stephan, ZPOCommentary, 14th ed., Article 199, marginal notes 11 ff.; Mansel, Civil Law...

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