Lina Wiedenbach and Dr. Marco Remiorz, Dabelstein & Passehl, Germany
Facts
The Claimant as carrier had entered into a contract with a shipper for the transport of five containers from Hamburg, Germany to Limassol, Cyprus. In performing the transport services, the Claimant commissioned the Defendant to pick up and deliver five empty containers to the business premises of Company B. Company B. was commissioned by the shipper with the packing of the containers. After the completion of packing, the Defendant would bring the containers to Bremerhaven, where they would be loaded on board an ocean going vessel destined for Limassol.
The Defendant delivered the five empty containers to Company B, each placed on a trailer belonging to the Defendant. The containers remained on the trailers during the packing performed by Company B. Upon the completion of packing, Company B. closed and sealed the containers. Due to circumstances outside the responsibility of the Defendant, one container could not be picked up and transported to Bremerhaven on that very day but had to remain at the premises of Company B. overnight. In this night the trailer with the container was stolen. As the container and trailer were later found the container had been emptied. The shipper held the Claimant liable for the loss and the Claimant sought recourse from the Defendant.
The key question to be decided by the Higher Regional Court of Hamburg was whether, under the given circumstances, the goods had been accepted by the Defendant for carriage according to Section 425 of the German Commercial Code (HGB), being the starting point for the Defendant’s period of responsibly for the goods.
The shipper as intervening party in the proceedings argued among other things that the Defendant had accepted the goods for carriage upon completion of packing as the goods were then in a container made available by the Defendant on a trailer belonging to it.
Decision
The court of first instance had dismissed the claim. The Higher Regional Court of Hamburg upheld its decision with judgement dd. 29 September 2016.
The Court set out the prerequisites for the carrier’s acceptance of goods under Section 425 HGB as established in case law:
The acceptance of goods for carriage presupposes the intentionally acquired direct or indirect possession of the goods by the carrier in person or through his agents because of a contract of carriage. This criterion is fulfilled, when objectively, the goods are in the carrier’s sphere of responsibility in a way which allows him or his agents to protect them from damage and when, subjectively, the shipper intends to surrender the power of disposition over the goods and the carrier intends to accept it.
The German Federal Supreme Court has substantiated in this regard that normally the carrier will have accepted the goods for carriage when the shipper has completed the loading operations and the driver closes the cargo space or the goods have arrived in the sphere of responsibility of the carrier or his agents in such way that they can protect them from damage.
The Higher Regional Court of Hamburg, however, emphasised that this substantiation by the Supreme Court had been made based on the assumption that the carrier takes over the goods from the shipper on his roadworthy mean of vehicle in order to leave the premises of the shipper once loading has been completed. The present case was different in a number of relevant aspects. The goods had not been packed directly into the transport vehicle but in a container made available in advance. Also, the container, once packed, was not immediately loaded onto a roadworthy vehicle but remained on the trailer where it had been ever since it was made available for packing. Further, no driver employed by the Defendant or his agent had been present during the packing operation. Rather, upon completion of the packing the goods were in the sole possession of Company B.
The fact that the container had been made available by the Defendant did not change this, where, as here, it has not been closed by the Defendant or its agents. Also the fact that the container was placed on a trailer belonging to the Defendant could not lead to another conclusion under the present circumstances, where the container was not placed on the trailer subsequent to packing but it had been there all along.
Neither could the Defendant in this situation – looking beyond the substantiation of the Supreme Court as set out above – be said to have otherwise intentionally acquired direct or indirect possession of the goods by the carrier in person or through his agents because of a contract of carriage. The Defendant consequently, at the time of the theft, had not accepted the goods for carriage and could not be held liable for their loss.
Comment
The decision clarifies that the circumstance alone that the goods have been packed in a container made available to the shipper by the carrier on a decoupled trailer belonging to the carrier is not sufficient for the carrier to have accepted the goods for carriage.