When insurance companies invoke the war clause

For a long time, Saint Petersburg was an exciting “laboratory of modernity”, also in German-Russian relations. The case of the damages suffered by the last German ambassador to the Tsar’s court provides a legal footnote.


By today’s standards, it was a dream building project, but due to its short lifespan for its specific purpose, the building is one of the problem buildings in the public sector: construction time was only a year and a half, erected according to plan at an estimated cost of 1.7 million marks, Beginning in January 1913, the German embassy on Isaaksplatz in Saint Petersburg was occupied.

In the opinion of historians with specialized knowledge, its architecture often broke with the principles of an imperial style of construction, for example, by dispensing with intimidating stairs or portals. The embassy thus also represented a piece of that administrative modernity that not only the lawyer and sociologist Max Weber (1864-1920) associated with the German state of the time. Vladimir I. Lenin (1870-1924), for example, also considered the German postal system to be a living organizational science.

However, the attic, the eaves of the building, featured large-format architecture: the figures of two giant horses, led by two muscular nudes, could be seen from afar.

Art in architecture: a provocation

The plastic for these “horse handlebars” was made from sheet copper to the specifications of the sculptor Eberhard Encke (1881-1936) in Berlin – in the same workshop, the foundry founded by Samuel Abraham Loewy (1826-1900) from which comes from The inscription on the Reichstag building comes from: “The German people.”

In St. Petersburg society, in this rapidly growing city with the dynamism of Berlin or major American cities, the architectural design of the German embassy, ​​including the art of the building, was controversial: the impression was too bulky, too ” teutonic”. although the motif of the two horse drivers was also interpreted differently as an allusion to German-Russian friendship.

The start of the First World War, in the year following the inauguration of the new building, also brought a beacon in terms of artistic appreciation: on the night of August 5, 1914, people stormed the embassy “mostly from lower classes and all kinds of obscure elements,” such as the German-language “St. Petersburger Zeitung,” Russia’s second-oldest newspaper, in existence since 1727 and closed in 1915. To the cheers of the crowd, no only the distinctive figures of horses and musclemen were thrown from the building, but the German ambassador’s furniture and collection of paintings and sculptures found their way to the street to be burned there.

Art under construction leads to liability litigation

While St. Petersburg’s “Horse Handlebar” figures have to wait until today to be restored – the new German desire for “Disneyland” mannequins probably has a lot to do with the city’s palaces and garrison churches. For the time being, the destruction of the ambassador’s privacy had already been produced during the First A legal consequence of the Second World War.

The last German ambassador to the court of the Tsars, Count Friedrich von Pourtalès (1853-1928), an art lover descended from an ennobled Huguenot family in the Prussian-Swiss Neuenburg, had theft insurance for the valuable interior of his official residence effective April 1, 1913 was completed for more than 264,000 marks, a considerable amount compared to the construction costs of the embassy building. It was an obvious advantage to the national budget that the notoriously blue-blooded representatives of the Foreign Office could still (partly) furnish their own office buildings.

Count Pourtalès sued the insurance company for payment of a partial amount of 4,001 marks. Although the regional court and the higher regional court upheld the claim, the Reichsgericht issued a judgment against the claimant on July 3, 1917 (Az. VII 114/17).

Does the “war clause” of the insurance contract apply?

The insurance company’s refusal to pay included a clause in the contract that read:

“The insurer is not liable for damage caused by theft in the event of a state of war, riot, earthquake or volcanic eruption, except that both these events and their effects and the conditions caused by them, in particular the destruction and disorder, they are neither directly nor indirectly, either with the intention of stealing, or in any way influencing and/or promoting the execution of the robbery”.

The regional and superior regional courts not only ruled in favor of Count Pourtalès when interpreting the term “mutiny” and in view of the rather late notification of damages – it had only been made in November 1914 – but they also had the term “state of war” interpreted in its meaning.

According to this view, the declared state of war under international law should not be decisive, but the actual state of war on the ground. The insurance company would only have been released from liability if the damage was particularly dangerous, for example due to the proximity of the insured object to the front; besides the angry citizens of St. Petersburg, the capital of the Russian Empire was still a long way off in early August 1914 from the shot.

interpretation of the insurance contract

According to the opinion of the Reich Court, the application of the aforementioned “war clause” did not preclude the fact that on August 4, 1914, apart from international law, there was still a very manageable actual state of war, with some minor skirmishes on the border. For example, the bitter destruction of the city of Kalisz in the Russian part of Poland began only a few days later.

According to the Leipzig judges, the wording of the “war clause” clearly indicates that liability is already excluded if the state of war has in any way directly or indirectly caused the theft. It does not allow the assumption of limitation of liability solely for damage occurring in the area “arising from war operations directed against the enemy.”

Furthermore, it should be noted that “experience has shown that a state of war initiated between two or more States has a broader and more disturbing influence on the general order of living conditions than a riot, an earthquake or a volcanic eruption”, against whose economic consequences is evident here the insurer wants to protect.

Case law favorable to insurance

With its decision against Graf Pourtalès’s liability claim, the court made it clear that it would allow “war clauses” to be applied against the insured in case of doubt.

A previous case had led to this, in which the circumstances were a bit different. It leaves the color of the times even lighter than the confrontation with the “Russian rabble”.

Nordstern Insurance, a company that later became part of the Axa Group, also invoked a “war clause”: a beverage wholesaler from Bingerbrück (today Bingen am Rhein) was officially obliged to ship beer to the rear of the Frankish front. -German. On August 6, 1914, he was shot near Saarbrücken by a German soldier during a vehicle check, but for no recognizable factual motive, while escorting him and a companion to his stall.

Although the shooter, a steelworker who had been summoned to appear, was described as “mentally inferior” in the criminal proceedings before the Saarbrücken district court and the fatal shot was fired “without understanding the facts and without taking into account account the rules applicable to the use of weapons”, here also the highest court considered the causal consideration that the murder of the -insured by accidents- beverage wholesaler “was related to the war”. It was enough that the soldier had carried out the identity check “in the interest of national defense”, which – many kilometers behind the front – was intended to “protect domestic installations against enemy influence”.

In its dismissal of the accident liability claim, the court was able to say of the shooter: “And although his actions may have been factually wrong, he was nonetheless chosen by the appropriate authority for this position and was entrusted with and familiar with the regulations. about the use of weapons in him he found a contradiction, he still wanted to act according to his duty and thought he was acting, he only misjudged the state of affairs and acted accordingly in an excitement that was most often noticeable at the beginning of war.”

With a judgment of June 15, 1917 (Az. VII 46/17, RGZ 90, 318-320), the Reich Court dismissed the claim of the surviving dependents against the insurer, after a decision of the Koblenz Regional Court and the Cologne High Court. Regional Court which was also more favorable to the plaintiffs here, due to the “War Clause”.

Back to Saint Petersburg again

The art-loving ambassador Count Pourtalès may have been the most prominent German victim of the “often felt emotion” among Russians at the outbreak of war, but he was by no means the only one.

Because at the beginning of the First World War, as Ulrike Fischer-Butmaloiu points out in her dissertation on media history at the end of the German “St. Petersburger Zeitung” (2011), around two million Germans and people of German descent lived in the Russian Empire, about half of them as settlers. For them, the war was arguably “Europe’s primary catastrophe,” to borrow the famous phrase of the American diplomat and historian George F. Kennan (1904-2005).

“The outbreak of the First World War was experienced by the German minority as an abrupt turning point in its history and in its own image: its media, its language and its culture remained unpopular in Russia for more than half a century. This led to achieving social changes and persistent insecurity and fear in all classes. Above all, the bourgeois Germans, who had known a high degree of political and social stability and comparatively constant economic growth, were annihilated.”

Nationalism and the Bolshevik dictatorship destroyed this not unparalleled but important sphere of bourgeois culture and intelligentsia in Russia; unlike the ambassador’s furniture, there was largely no legal recognition.

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