West Germany: Supreme Court Bars Claims of Forced Laborers

West Germany: Supreme Court Bars Claims of Forced Laborers Against German Industrial Concerns—The Federal Republic of Germany was one of sixty-five nations that ratified the International Labor Organization Convention for the Abolition of Forced Labor. It thereby undertook to suppress any form of forced or compulsory labor “as a means of racial, social, national or religious discrimination.” [1] The West German government also made it a criminal offense to enslave any person or to be an accessory thereto. [2] Unfortunately these standards of conduct, morality and law had been disregarded by its predecessor government, the Third Reich, under whose authority countless thousands of persons were imprisoned for reasons of race, religion or opposition to National Socialism. At the request of many German industrial concerns, concentration camp inmates were leased to the companies as forced laborers, becoming virtual slaves of the companies to which they were assigned. A recent decision of the Bundesherichtshof, defines the rights of these forced laborers against the companies which exploited them. [3] In 1941 Dr. Edmund Bartl, a lawyer in Sudeten Germany, was arrested, brought before a special court, charged with opposition to the regime and sentenced to two years in prison. When this term expired the Gestapo took him into “protective custody” and shipped him to the Sachenhausen concentration camp outside Berlin.

The Heinkel company had a large aircraft factory in the town of Oranienburg, near Sachenhausen. Its labor supply was recruited from among the camp inmates who were then housed in a branch camp on company property. For years Dr. Bartl was forced to do heavy labor for the aircraft company. After liberation by the Allied liberation by the Allied armies, Dr. Bartl set up residence in West Germany. He learned that the Heinkel plant in Oranienburg was a subsidiary of the firm of Ernst Heinkel A.G. in Stuttgart; at the end of 1959 he brought suit against the parent company.

The plaintiff alleged that he had been forced to work for the company under the most inhuman conditions, with inadequate food, medical care or shelter and that he was repeatedly mistreated by inmate employees of the company who served as foremen and who drove him to ever harder manual labor under constant beatings and the threat that he would be reported to the SS and executed for sabotage. Dr. Bartl asserted that he suffered constantly from hunger and thirst, and that his weight was reduced to 86 pounds. By being forced to do welding without protective glasses his eyes sustained irreparable damage and because of the heavy toil his health was permanently ruined. He alleged that the Heinkel directors were in a position to alter the inhuman conditions but did nothing to mitigate his suffering and specifically encouraged and ordered the abuse of camp inmates. He complained that although the company had paid the SS a monthly sum of $33 (RM 132) for his services, the amount was inadequate and no part of even that sum had been turned over to him. The company accordingly had been enriched by his labor, he sued, therefore, for loss of wages as well as for pain and suffering he endured through the company’s neglect, requesting a partial judgment of $2500. The defendant Heinkel denied all the allegations of the complaint and resisted all attempts at settlement. The company maintained that only SS was responsible for the condition of the inmates, that only the state could be held liable (and the government was interpleaded as a party defendant), that there had been no abuse of the plaintiff by the company’s employees, that under German indemnification laws Dr. Bartl had already received his profession and the permanent damage to his health, and that thereby Bavaria was subrogated to any other claims he might have. In any case, the defendant argued, the statute of limitations barred all claims by the plaintiff.

When this case was heard in the first instance, the local district court held that the plaintiff’s claim for damages was justified because the defendant had indeed been unjustly enriched. The other demands were dismissed. The Heinkel company appealed to the Appellate Court (Oberlanesgericht) in Stuttgart which dismissed their appeal and held further that the plaintiff’s claim for payment for his pain and suffering was also justified. Heinkel then appealed to the Federal Supreme Court (Bundesgerichtshof) in Karlsruhe on the procedural grounds that the Appellate Court had not been properly reconstituted, affirmed its first decision in a thirty-two-page judgment that set forth in detail its view of the facts and the law. [4] The Stuttgart Appellate Court held that the plaintiff’s claims did not pass to the State of Bavaria which had made payments to him under the German indemnification laws since no payments had been made for the forced labor or for pain and suffering, and the special indemnification laws could not eliminate any further rights which the plaintiff had under German civil law. The plaintiff, even thought against his will, had served the interests of the Heinkel company which accepted those services. The present claim could be classified under the category of negotiorum gestio, “acting for another without his mandate” (auftraglose Geschäftsfurüng) to which a thirty-year period of limitations would apply. Although claims for wages would ordinarily be barred in two years [5] the forced labor of a concentration camp inmate was not to be put in the same category. There was no danger that the loss of evidence, which justified the rule in an ordinary commercial transaction, would apply under such circumstances.

The Appellate Court confirmed as a matter of fact that the plaintiff had been beaten, mistreated and threatened at least by inmate supervisors. The three judges concluded that the company had the power and therefore the duty to prevent inmate supervisors from beating other inmate laborers and that the management was obliged to do what it could to minimize the suffering of the workers and to prevent the addition of any unnecessary burdens.

“This natural humane duty toward those persons given over to their control is not only a moral but also a legal obligation. In both directions, in making things easier and in preventing additional burdens, the managers of the company did next to nothing.” [6] The claim for damages for pain and suffering was therefore held to be justified. According to the Appellate Court, an action based on pain and suffering had to be asserted within three years but the period did not begin to run until the plaintiff knew the identity of the responsible party and no one could reasonably be expected to know the rights and liabilities connected with the claims of forced laborers until there had been a court decision on the subject. The plaintiff only learned of such a decision in 1958. [7] By holding that the laborer had a valid claim based on unjust enrichment for lost wages founded on implied contract and damages for pain and suffering, and by espousing strong moral principles in a matter affecting large numbers of potential claimants, the Stuttgart Court aroused considerable public attention, [8] and perhaps some apprehension on the part of the companies that had employed slave laborers. The Heinkel company promptly appealed the Stuttgart decision to the Federal Supreme Court.

The Supreme Court had previously been confronted with the question whether concentration camp laborers could assert valid claims against their company employers. All prior cases had involved non-German nationals as plaintiffs. The Supreme Court had in each case held that no decision could be reached on the merits of the claim until there was a final reparations agreement between the plaintiff’s government and Germany. The ratio decidendi was that Article 5 of the London Debt Settlement Agreement of February 27, 1953 [9] provided that claims of Allied nationals asserted against the Reich of persons or agencies acting on its orders would have to be deferred until a final reparations agreement with Germany had been signed. The Court decided that claims of forced laborers were in the nature of reparations claims and that the companies that used concentration camp labor were in effect acting as agents of the Reich, [10] and was able to dismiss those cases on the theory that the actions had been started prematurely and were therefore “unjustified at this time” (zur Zeit unbegründet). [11] Unhindered by the adage, “justice delayed is justice denied,” the Court considered itself bound to postpone indefinitely the claims of Allied nationals against their former employers even though it was obvious that perhaps none of the former camp inmates might survive long enough to witness a final reparations agreement between all the Allied powers and the new German government. On the other hand, by postponing the possibility of obtaining any adjudication on the substantive merits of slave labor claims until a final reparations agreement is signed, the Supreme Court placed a permanent cloud over the assets of the companies concerned.

In the light of the previous postponement of the claims of Allied nationals, it was therefore particularly tantalizing to see how the court would react to the ruling of the Appellate Court in the Heinkel case upholding the claim of the German national, Dr. Bartl. Should the Supreme Court decide that a German national possessed rights greater than those of an allied national, the decision would surely encounter both constitutional [12] and treaty [13] objections. The Supreme Court, however, found no difficulty in meeting the challenge. It declared that it had jurisdiction to try the issue but without going into the substantive merits of any of Dr. Bartl’s claims dismissed all of the claims of the plaintiff as barred by the statutes of limitations. In a strictly formalistic opinion, the Court noted that claims for wages were barred after two years, [14] commencing at the time the claim arose. [15] This period applied to all claims arising out of a working relationship, including claims for unjust enrichment of “acting for another without authorization, (Geschäftsfuhrung ohne Aüftrag). A four-year statute might be applicable if the claim related to payments of a recurring nature but Dr. Bartl would still be barred. Claims for mistreatment were subject to a three-year statute of limitations. [16] That period began to run when the injured party learned who was responsible. The defendant did nothing to prevent the plaintiff from commencing the action; hence there was no reason why the statute should be tolled. The Supreme Court did not agree with the Appellate Court’s ruling that concentration camp labor was an exception to the ordinary civil law situation. Disregarding the uncertainty they had created by deferring the claims of allied nationals, the Supreme Court now stated: “Any other interpretation which would take into account the special circumstances of this case would lead to a great deal of legal uncertainty and would hardly be justifiable in a commercial society.” [17] The high court concluded that the plaintiff knew he had been working for the Heinkel company, and as a lawyer should have known how to locate the defendant corporation and to determine whether he had a valid suit under ordinary principles of German civil law. [18] The fact that the Appellate Court judges in Stuttgart were unaware of the law in this area, based at least on the fact that they were reversed, did not deter the Karlsruhe judges from concluding that Dr. Bartl should have known what the law was even before the Supreme Court rules upon it. As consolation to the plaintiff the Court noted that any changes would have to be made by the legislature and not by the courts. [19] Thus, according to the Federal Supreme Court all claims brought by former concentration camp inmates against the companies which used them as forced laborers are barred; for Allied nationals it is too soon, and for German nationals it is too late. The companies which exploited them are now legally immune. Under German procedure, the loser of a lawsuit is obliged to pay court costs including all attorneys’ fees and expenses of his adversary. For eight years Dr. Bartl waged a courageous battle to obtain a modicum of compensation for the abuse the courts clearly recognized he had suffered at the hands of the Heinkel company or its employees. By virtue of the Supreme Court’s reversal of all the lower court decisions it is now Dr. Bartl, the disabled and impoverished former concentration camp inmate, who must pay his erstwhile custodians.

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* Member of the New York Bar.

[1] Abolition of Forced Labour Convention of 1957, cited in 19 THE RECORD OF THE ASSOCIATION OF THE BAR OF NEW YORK, NO. 8, pp. 18-19 (December 1964).

[2] Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; cf. supra note 1 at 15.

[3] Dr. Edmund Bartl vs. The Firm of Ernst Heinkel, A.G., decision of June 22, 1967, not reported at date of publication.

[4] 10 U-8/1965, 12 S 334/59, OLG Stuttgart, May 19, 1965.

[5] BGB § 196(9).

[6] Cf. supra note 4 at 30.

[7] The Court referred to Wollheim vs. I.G. Farben, File 5 U-1222/53, June 10, 1953, which was, however, appealed to the OLG in Frankfurt, and upon urging of the Appellate Court a settlement was reached in 1957. Similar out-of-court settlements were later made with the Krupp Company, AEG, Siemens, and Rheinmetall A.G.

[8] DER SPEIGEL, Issue No. 20 1964, pp. 59, 60.

[9] [1953] BGBI II 331.

[10] Decision of Feb. 26, 1963—VI ZR 94/61 (Frankfurt/M) LM AuslSchuldAbk Nr. 15-RZW 1963, 525— MDR 1963, 492, involving a Polish national; decision of March 17, 1964, VI ZR 186/71 (Berlin), involving a United States national who was a Czech at the time she was sent to the concentration camp.

[11] The decision of the Court was influenced by literature cited; by the book of GURSKI, DAS ABKOMMEN ÜBER DEUTSCHE AUSLANDSSCHULDEN (2d ed. 1955) and Féaux de la Croix, Schadenersatzansprüche ausländischer Zwangsarbeiter, 1960 NJW, 2268. Both works were persuasively criticized by Martin Domke, Individualansprüche für völkerrechtliche Deliktsaftung?, 1962 SCWEIZERISCHE JURISTEN-ZEITUNG 4.

[12] The Basic Law of Germany requires equality of treatment for all nationals. Cf. case involving a Polish national against I. G. Farben (decision of Feb. 26, 1963, LG Frankfurt a.M.). In two parallel cases involving two United States nationals, Irene Reinharcz and Judith Buls of New York against the Rheinmetall Company of Berlin, which had been rejected by the Supreme Court as premature, (decision of March 17, 1964), an appeal had been filed to the Federal Constitutional Court on May 4, 1964 on the grounds that the BGH decision violated Art. 3 of the German Basic Law.

[13] The Convention on Relations Between the Three Powers and the Federal Republic of Germany of May 26, 1952 provided in Chapter X that there would be no discriminatory treatment against non-German nationals.

[14] BGB § 196(9).

[15] BGB § 189(a).

[16] BGB § 852, para. 1.

[17] Cf. supra note 3 at 10.

[18] BGB §§ 31, 821, 823. Whether a different conclusion would have been reached if the plaintiff were not a lawyer is dubious.

[19] The Court referred to the law which extended the period of limitations for the prosecution of war criminals, Gesetz über die Berechnung strafrechtlicher Verjährungsfristen vom 13. April 1965, 1965 BGBI I.315. Several German industrialists has been prosecuted and convicted as war criminals for their abuse of slave laborers. See, e.g., TRIALS OF WAR CRIMINALS BEFORE THE NURNBERG MILITARY TRIBUNALS (US Government Printing Office 1946-) Vol. 6, US vs. Friederich Flick et al.; Vol. 7, US vs. Krauch el al., “The I. G. Farben Case,” Vol. 9, US vs Alfried Krupp et al. No consideration was given by the Supreme Court to the anomalous situation whereby a company manager could be criminally prosecuted for abusing slave laborers but could both be held civilly liable for the same deeds.