
    PANTONE, INC. and Lawrence Herbert, Plaintiffs, v. HERTZ AUTOVERMIETUNG GmbH and Hertz France, S.A., Defendants.
    No. 77 Civ. 1828 (CMM).
    United States District Court, S.D. New York.
    Oct. 31, 1983.
    See also D.C., 572 F.Supp. 748.
    Bernstein, Obstfeld & Schwed, New York City, for plaintiffs; Lawson Bernstein, Wilfried Witthuhn, Walter, Conston & Schurtman, P.C., New York City, of counsel.
    Mendes & Mount, New York City, for defendants; Joan S. O’Brien, New York City, Dr. Henrich Luebbert, of counsel.
   METZNER, District Judge:

Section 7 of the rental agreement between Pantone, Inc. (Pantone) and Hertz Autovermietung GmbH (Hertz) contains a disclaimer clause which defendant asserts bars recovery in this case by Pantone. The Pantone claim arises under the contractual concept of pVV in German law. This concept is fully discussed in this court’s opinion of October 5, 1983, 572 F.Supp. 748. The clause reads as follows:

“HERTZ cannot be held responsible for any damage, not covered by insurance, to a third person in connection with the operation of the rented vehicle, as well as the loss or damage to articles stored or left in the vehicle during the rental period, nor for any possible damage or inconvenience caused by the belated delivery of the vehicle, possible motor trouble or any other causes. The Renter agrees to exonerate HERTZ from all responsibility in this connection and to indemnify, hold harmless and defend HERTZ against any loss, liability and expense, including reasonable attorney’s fees, which may arise out of or in connection with any such damage and/or loss.”

(Emphasis added.)

While the defendant contends that this disclaimer clause applies to Herbert’s tort claim as well, the contention is without merit since it has been held that Pantone was the party contracting with Hertz.

Pantone challenges the claim that the disclaimer clause bars this action, making two arguments. First, it asserts that under West German law the clause as written is unenforceable because it seeks to disclaim too wide an ambit of liability. Second, the plaintiff claims that even if the disclaimer clause is indeed enforceable under German law, it would not be interpreted to include negligent injury of the type here encountered. The court has relied only on cases for which the parties have furnished English translations.

Dispute centers around the section’s disclaimer of liability “for any possible damage or inconvenience caused by the belated delivery of the vehicle, possible motor trouble, or any other causes.” In May of 1974, when the parties entered into the contract which contained the clause, German law prohibited only those disclaimers which by their wording were intended to exempt a party from liability for his intentional torts and intentional violations of the contract. BGB § 276(2). Disclaimers of purely negligent actions were valid. 1979 NJW 2148.

The parties agree that on their face the words “or any other causes” comprehend causes arising both from intentional and from negligent action. Defendant argues, however, that despite the broad coverage of the clause, a German court would enforce the clause for negligent torts and breaches of contract, deeming the parties to have intended to enter into a valid agreement, citing BGB §§ 133, 157.

Defendant has cited a decision of a German intermediate appellate court to support its position that the clause should be upheld to the extent that it disclaimed liability for negligence. In the Judgment of May 22, 1981, OLG München, 1981, 1981 NJW 1963, the appellate court construed a disclaimer clause under the new German sales law, the AGB-Gesetz (AGBG). While that law was not in effect in 1974, when the car rental contract was signed, the parties agree that court decisions handed down interpreting the AGBG are illuminative for purposes of- construing the 1974 clause. The Munich court’s reasoning supports the contention that the disclaimer clause at issue should be read to disclaim liability only for negligence, and therefore be enforced to bar Pantone’s claim.

A later decision of the West German Supreme Court (BGHz), however, rejects the Munich court’s reasoning. The Judgment of January 20, 1983, BGHz, 1983, 1983 NJW 1322, also considered a disclaimer clause under the AGBG. In the 1983 case, a disclaimer clause was held unenforceable in toto when it excluded liability for intentional as well as for negligent actions. The court wrote that since the clause was partially invalid as written, it could not be enforced at all.

We must follow the recent decision of the highest court in Germany. Even before the AGBG was enacted, the German courts would not stretch to provide meanings to ambiguous clauses which would permit the drafter the widest possible benefit consistent with legal limitations; instead, whole clauses were struck. See cases cited in the Judgment of May 17, 1982, BGHz, 1982, 1982 BGH NJW 2309.

The disclaimer clause is invalid as over-broad, and should not bar plaintiff’s claims in this action.

In view of this disposition of the matter, it is unnecessary to discuss plaintiff’s second contention as to interpretation. However, this court would point out that the parties have failed to furnish the court with adequate citation to West German law upon which to decide the issue.

So ordered. 
      
       Defendant also cites 1979 NJW 2148 in its Second Supplemental Memorandum of Law, at 5. This case, also decided under the AGBG, precedes the 1983 case, and the latter must control. Moreover, defendant itself has characterized the 1979 case as involving a disclaimer written "merely to cover negligent actions,” Memorandum of Law at 25. It should be noted in this regard that “unlawful,” as used in the excerpt from the 1979 opinion at Defendants' Second Supplemental Memorandum at 5-6, appears to refer to a basic component of the German definition of a tort, not to its nature as intentional or negligent. BGB § 823(1).
     