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October 5, 1983


The opinion of the court was delivered by: METZNER


 The court has completed a two-day hearing in which it heard testimony from experts presented by the respective parties as to the German law to be applied to the issues in this litigation. This hearing followed a three-day hearing on the applicable German law held in March 1981 before Judge Lowe. The court has read thirteen briefs and folders of translations of German law, and the transcript of the testimony previously heard by Judge Lowe.

 Fed. R. Civ. P. 44.1 requires that the court determine foreign law as a matter of law. In reaching such a determination, the court must perforce make factual determinations as to the German law. What is the German law where there is disagreement between the experts as to the English translation of the German law? Which expert does one follow where there is disagreement as to the German law either substantively or procedurally?

 The two experts who testified were German lawyers who speak and read English and have a background in American law. Some of the translations were made by American translation services without any indicated knowledge of either German or American law. In many instances the translations were stilted and awkward and failed to make any legal sense.

 The individual plaintiff, Lawrence Herbert, is the president and sole stockholder of the corporate plaintiff, Pantone, Inc. Hertz Germany and Hertz France are named as defendants, but counsel have stipulated for the purposes of this trial that they will be considered as one. The defendant will be Hertz Germany (Hertz).

 On May 17, 1974, Herbert rented a car from Hertz in Frankfurt, Germany, and agreed to return the car in two days to a Hertz office in Paris. He used his American Express card which had been issued to "Lawrence Herbert, Pantone, Inc." On the following day, May 18, Herbert returned the car to a Hertz office in Paris, entered the mileage in the appropriate blocks on the printed rental agreement, left the keys in the car, and went into the Hertz office. Herbert alleges that no one was in the office, but a person in a Hertz uniform came from the parking area and Herbert gave him the rental documents and left.

 The Hertz records did not reflect that the car was ever returned, and on June 17, 1974, Hertz considered the car to have been stolen. Hertz submitted a bill to American Express Company showing a rental period from May 17, 1974 to June 30, 1974. On July 2, Hertz sent a cablegram to Herbert in New City, New York, requesting information concerning the whereabouts of the car. Two days later on July 4, 1974, without having received any reply to the cablegram, Hertz filed a penal report with the West German police requesting that Herbert be prosecuted for misappropriation of the car. This form also provided space for informing the police if the car were located: "The car reported as misappropriated with this information with the characteristic . . . could be found again and is again in our possession since . . . ."

 Herbert claims that he answered the July 2 request from Hertz on July 11, and told them that the car had been left at the Hertz office near the Hotel Hilton on May 18. Hertz denies having received this communication. On August 4, Hertz was notified that the car had been found by the police in Paris. Hertz did not inform the German police of this fact.

 On August 28, the German police issued a warrant to arrest Herbert which stated that Herbert had rented the car from Hertz, that he did not intend to pay for the use of the car or return it, and that "the car has not yet been returned to date."

 The police record reflects that on September 4, a form notice was sent to Hertz reporting that the investigative procedure had been suspended because of lack of knowledge of Herbert's whereabouts. The form requested that Hertz to notify the police if it learned of Herbert's whereabouts. Hertz denies having received this communication as well.

 On October 19, American Express notified Hertz that Pantone disputed the amount of the bill. On October 21 Hertz wrote to Herbert at Pantone that it had no record of the return of the automobile and that it had not received any reply to its cablegram of July 2. The letter added that the French police had found the car on August 7, and requested Herbert to furnish detailed information as to what happened when the car was checked in.

 On November 1, Herbert replied to Hertz giving the requested information, but ignored the statement that Herbert had not replied to the cablegram of July 2. Herbert ended by stating that he would not pay more than a one-day rental charge plus mileage. On November 5, Hertz replied to Herbert at Pantone, stating that "there was a big mistake with Hertz Paris," "We are very sorry that all this happened and want to express our sincere apologies," and finally, "Now we hope that the matter was cleared to your satisfaction and that this incident does not reflect upon our good business relations." Hertz did not inform the German police of this agreement with Herbert.

 Two and a half years later, on January 21, 1977, Herbert arrived at the Cologne Airport in Germany, where he was promptly arrested on the previously issued warrant. He was searched at the airport and again after being transported to the jail in Cologne. Herbert claims that the police menaced him with guns and that he was treated in the jail as a common criminal. Upon the intervention of an attorney retained to represent Herbert, he was released from jail the following morning at 11:30 A.M.

 Herbert seeks damages for pain and suffering incident to the arrest which he claims flow directly from the way Hertz handled this matter. This pain and suffering, he claims, includes a traumatic neurosis which has destroyed his self-image. Further, Herbert claims that he has lost his ability to manage Pantone effectively, and that, specifically, his fear of being in ...

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