Claimant is the transport insurer of cargo interests, the Respondent is a freight forwarding company which has been instructed by the damaged party to deliver goods (that have been packed in eight wooden boxes) by land and sea transport to Shanghai at a fixed price. The Respondent picked up the boxes and delivered them overland to a container packing company in Bremen (Germany), where the boxes were supposed to be loaded on a container vessel. Due to a change in the port of departure, the boxes had to be transferred to the Port of Hamburg. By the time the boxes ought to be loaded into the groupage freight container in Hamburg, two of the eight wooden boxes were missing.
One month after the six remaining boxes had been shipped to Shanghai, the two missing boxes have been found in Guatemala, where they were shipped due to false loading. Further two months later the two missing boxes have been returned to the damaged party. To be able to comply with the contractual agreed delivery time, the damaged party had to replace the missing goods with newly produced and separately shipped substitutes.
The District Court dismissed the case. The Court of Appeal assumed that the claimant was entitled to claim for compensation in the amount of two special drawing rights per kilogram of misguided freight arising from a passed on right of the damaged party, as the two boxes that got out of hand have to be regarded as lost, due to their unknown whereabouts over a long period.
The claimants appeal against the decision of the Court of Appeal is based on the courts judgement that the claim for damage is limited to two special drawing rights per kilogram. The Appellate Court set the contested judgement aside and refers the case back to the Court of Appeal, as the legal assessments do not withstand the considerations which the Court of Appeal took into account.
The court’s assessment, that there is no own qualified fault on the respondent’s side – which would lead to an unlimited liability under section 660 para. 3 German Commercial Code (HGB) (old version) – stands up to a legal review.
However, also number 27.2. of the General Terms and Conditions of the German Forwarding Trade (ADSp), which have been concluded between the damaged party and the respondent, can provide for an unlimited liability of the respondent. Those terms also apply in relation to the transport on seaway if the freight forwarder concluded a multimodal transport. In the present case a qualified fault was present for the employees of the commissioned container packing company, which according to number 27.2. ADSp and section 428 HGB is sufficient to constitute an unlimited liability of the respondent, as those people have to be regarded as his agents.
A qualified fault in the sense of a reckless behavior can result from an insufficient organization of the business process, meaning a business process that does not ensure adequate protection of the goods that have to be transported. The handling of transport goods is particularly susceptible to loss and must therefore be organized in such way that a control of the incoming and outgoing goods has to be set up, so that shortages can be identified at an early stage. The fact that the disposition of the two misguided boxes could not be ascertained in a timely manner indicates a qualified fault of the container packing company in organizing their operational procedure. Pursuant to the respondent’s pleading, the employee of the container packing company only checked if the respective boxes have been delivered, but did not control the following discharge and furthermore did not record it in the papers, although such control system was indicated here, as the discharged boxes were supposed to be stowed in a consolidated container with destination to another port and thus constituted an interface when handling the transport goods. As such repackaging is particularly vulnerable to loss it requires special precautionary measures and security measures.
The Federal Court of Justice (BGH) ruled that the loss of transported goods already occurs, when the freight forwarder or carrier is unable to deliver the good to the authorized recipient for an indefinite time. It is sufficient, that a late delivery is unlikely or unacceptable. Once the good is in loss, it is not of relevance, if the good will be allocated later or not.
In case of a multimodal transport – overland and seaway – the preliminary works, such as the storage and the stowage of the goods in the containers and the storage of a container equipped with goods at the port terminal, are tasks to prepare the transport of the goods and are therefore already part of to the seaway.
The handling of goods is particularly vulnerable to loss and must therefore be organized in such way that the incoming and outgoing goods have to be controlled accurately so that a shortage can be identified at an early stage. Such interface controls are even more important in cases where legally independent third-party companies are involved in the operation of transport services. A defect in the organization of the working process – meaning an inadequate entry and exit controls – may result in the accusation of qualified fault in the sense of a reckless behavior and lead to an unlimited liability.