20th-century ad hoc legislation
If these and similar instances of a stricter-than-normal liability have grown up rather surreptitiously, and have tended to undermine the borderline between fault- and risk-based liability,[5960] [5961] [5962] ad hoc legislation has until recently been regarded as the only proper and legitimate means of accommodating the need for an expansion of no-fault liability stricto sensu. A string of special statutes have thus been enacted over the years, dealing with road traffic,282 air transport,283 electricity and gas supply,[5963] atomic energy,[5964] water pollution[5965] and pharmaceutical products.[5966]! [5967] As a result of this casuistic approach, as well as of the traditional reluctance of German courts to extend the scope of application of these statutes analogically,[5968] one is faced today with a whole variety of rather haphazard distinctions. Thus, for instance, it does not make much sense that a person who injures himself in the course of boarding a boat should be worse off (his claim being based on fault) than someone who falls while stepping aboard a train (strict liability of the railway ). Nor is there any good reason why the liability of a contractor should depend on whether he uses a field railway or a bulldozer for some excavation works.[5969] A confusingly patchy picture also emerges if one looks at the way in which the strict liability is limited in each individual case.[5970] The custodian[5971] of a motor vehicle is not liable if the accident was caused by an unavoidable event, attributable neither to a defect in the construction of the vehicle nor to the failure of any of its functional parts.[5972] The liability of the railway, on the other hand, is excluded only in cases of vis maior ("hohere Gewalt"),[5973] while for the custodian of an aeroplane not even vis maior constitutes a good defence. Passengers in a motor vehicle cannot hold the custodian liable under the provisions of the Road Traffic Act, unless they were being carried by way of business or for reward;[5974] nor does the custodian's strict liability cover injuries sustained by persons who have been engaged in the operation of the vehicle (as, for example, agents employed to tow away or repair the car).296 Neither the liability of the railway nor that imposed by the Air Traffic Law knows similar limitations. Very often (as with regard to rail, road and air traffic) specific limits are fixed for the amount of damages recoverable,297 but then there are also statutes (as, in particular, the Water Maintenance Act) which do not contain any upper limit. All in all, it is obvious that the present mosaic of special provisions is not the result of any principled choice, but of the determination of both courts and legislature to meddle as little as possible with the familiar system of a fault-based liability. Only comparatively recently has one begun to formulate generalized principles and to attempt to integrate a unified concept of strict liability into the German delictual system.298 V.
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