Dr. Marco Remiorz and Lars Kortländer, Arnecke Sibeth Dabelstein, Germany
In a recently published decision of the Higher Regional Court (OLG) of Düsseldorf the Court held that if the sovereign act (here: destruction of the goods by customs) has been rendered null and void by a defect in the transport performance for which the air freight forwarder is responsible, he cannot invoke the exclusion of liability pursuant to Art. 18 para. 2 lit. d) of the Montreal Convention (MC). (N1)
The plaintiff, an insurance company, seeks compensation from the defendant, a parcel service company, for the loss/damage of a consignment which the defendant received from the plaintiff’s policyholder in Germany and which to be transported to Mexico. The consignment was first transported by truck via various stations to Cologne Airport and from there via various airports to Guadalajara Airport in Mexico, where it was to be cleared through customs. The plaintiff had commissioned the defendant to do this. The consignment was destroyed by customs in Mexico after customs clearance had not been completed within 60 days.
The Regional Court of Düsseldorf held that the defendant was liable for the loss of the consignment.
The Higher Regional Court of Düsseldorf upheld the decision of the Regional Court of Düsseldorf. The judges confirmed that to the extent that the defendant’s subsequent appeal is based on the fact that it was no longer possible to avert destruction by the defendant when the goods declared for customs clearance passed into the ownership of the State of Mexico after the expiry of the 60-day period, this does not result in an exclusion of liability pursuant to Art. 18 para. 2 lit d) MC, according to which sovereign acts in connection with the importation of the goods resulting in loss, damage or destruction relieve the air carrier of its liability.
If the sovereign act has been a result of a deficiency in the performance of the transport for which the air carrier is responsible, he cannot invoke the exclusion of liability. In the present case, the defendant was unable to exonerate itself in relation to the consignor who had issued the instruction to repatriate the goods transported.
The decision by the Higher Regional Court of Düsseldorf takes into account the underlying principle to Art. 18 para. 2 lit. d) MÜ, being that the air carrier shall not be held liable for causes of damage which are completely outside its sphere of risk and influence. This principle has been followed by the German Federal Court of Justice for a long time (especially in regard to the Warsaw Convention). It can be presumed that the German Federal Court of Justice would decide this case likewise, especially because the judgements to section 426 (Exclusion of liability) of the German Commercial Code (HGB) as well as to Art. 17 para. 2 CMR, both having the same underlying principle for the carrier, are decided likewise. Exclusion of liability clauses shall not lead to a “free ticket” for carriers.
(N1) Higher Regional Court (OLG) of Düsseldorf, decision dated 23 May 2018 – I-18 U 37/17.