In March 2026, I presen­ted a paper at the 23rd Inter­na­tion­al Con­gress of Mari­time Arbit­rat­ors (ICMA XXIII) in Singa­pore on recov­er­ing the cost of pre­vent­ing a loss from a con­trac­tu­al breach that has not yet happened. The paper has now been pub­lished, in expan­ded form, in the Ger­man trans­port law journ­al Trans­port­recht: ‘The Cost of Pre­ven­tion – Expense Recov­ery in Mari­time Logist­ics Under Ger­man Law, Cor­rectly Applied’, TranspR 2026, 296–302 (issue 7–8) (sub­scrip­tion required).

The article ‘The Cost of Prevention – Expense Recovery in Maritime Logistics Under German Law, Correctly Applied’ by Patrick Dahm, as printed in Transportrecht 2026, 296–302 (issue 7–8)

The facts: parts a char­ter­er needed for its fact­ory in Mex­ico were plainly not going to arrive by sea in time, and pro­duc­tion there was about to stop. The char­ter­er arranged an urgent air ship­ment of replace­ment parts at its own cost. The money was spent before any con­trac­tu­al default by the car­ri­er. The Ger­man Fed­er­al Court of Justice (Bun­des­ge­richts­hof) nev­er­the­less held it recov­er­able as delay dam­age, or Verzugsschaden (BGH, 20 April 2023 – I ZR 140/22).

The out­come is com­mer­cially prag­mat­ic, but the route to it is not. Pre­ven­tion costs are treated as ‘dam­age’, and ‘adequate caus­a­tion’ is then invoked to jus­ti­fy com­pens­at­ing them. Both are terms of art, but neither is being used in its settled sense. Worse, the caus­al ana­lys­is is built back­wards from the result.

What I pro­pose in the art­icle is a dif­fer­ent char­ac­ter­isa­tion. Money spent to avert a loss is not dam­age but expendit­ure, and Ger­man law already has a home for it in the quasi-con­trac­tu­al claim for reim­burse­ment of expenses under the law of nego­tior­um ges­tio (Geschäfts­führung ohne Auftrag). That route reaches the same com­mer­cial des­tin­a­tion without the inter­pret­ive leaps, and it gives cross-bor­der users of Ger­man law a res­ult they can pre­dict. It also has the advant­age of mak­ing sense – onto­lo­gic­ally, lin­guist­ic­ally, and legally.

The dis­tinc­tion – expenses rather than dam­ages – is not pecu­li­ar to Ger­man law, and that is what I expand on at the end of the art­icle. The rel­ev­ant decision of the Singa­pore Court of Appeal, if only by way of obiter dictum, is The ‘Asia Star’ [2010] SGCA 12 at [24]: ‘the aggrieved party can­not recov­er avoid­able or avoided loss; it may, how­ever, recov­er expenses reas­on­ably incurred in the course of tak­ing mit­ig­a­tion measures.’

Pre­cisely. Recov­er expenses, not damages.