The parties were in dispute over claims for damages during a multimodal transport via truck and ship.
The shipper commissioned a freight forwarder to organise a shipment of two snow clearing machines from Germany to the United States. The weight of both machines was 11,460 kilograms gross.
The freight forwarder offered its services in line with the German Forwarder's Terms and Conditions (ADSp 2017). The shipper accepted these services. The shipment was then transported via truck to the harbour of departure. After transport by sea to the United States, the shipment was transported via truck to the consignee. The recipient noted that one machine was damaged. However, it was unclear during which leg of the transport the damage had occurred. The freight forwarder argued that the damage had probably occurred during the handling of the shipment in the port, and therefore the law governing sea transport was applicable.
The shipper asked for compensation in the amount of €34,948.51 and the insurance company of the shipper filed legal action against the freight forwarder.
The court of first instance ordered the defendant to pay an amount equivalent to 22,920 special drawing rights (SDRs) (corresponding to two SDRs per kilogram of the whole shipment in accordance with section 23.1.2 of the ADSp 2017).
Both parties filed an appeal against this decision to the higher regional court.
From the plaintiff's point of view, the liability should have been higher (8.33 SDRs per kilogram according to section 23.2 of ADSp 2017, instead of the two SDRs per kilogram the court of first instance granted). From the defendant's point of view, 5,730 kilograms (corresponding to the weight of the damaged machine) should have been the basis for any payment of damages.
The court of appeal ruled that both arguments were correct.(1)
The defendant's argument, that the court of first instance had used the wrong weight, was correct. As two machines had been transported, and each machine could be used without the other, only the weight of the damaged machine had to be taken into account.
However, this would not lead to a reduction of the damage compensation to be paid to the plaintiff.
The court of first instance had applied the wrong liability section of the ADSp 2017. A systematic, as well as a teleological interpretation, led to the conclusion that section 23.1.2 ADSp 2017 is only applicable in the case of national transport. In the case of maritime and cross-border transport, section 23.2 of the ADSp 2017 stipulates that the rules governing such transport prevail. Therefore, the stipulations of German multimodal transport law (article 452 and 431(1) of the German Commercial Code) applied. This led to a standard liability of 8.33 SDR per kilogram.
The reasons given by OLG Stuttgart were not convincing. The wording was open and the court did not check other potential legal stipulations (such as Carriage of Goods by Sea Act 1992).
Nevertheless, the German High Court of Justice (BGH) might hold up the judgment. A few years ago, the BGH(2) made a crude comment regarding the liability situation under the ADSp 2003 and ADSp 2016. It considered the liability under section 22.4 ADSp 2016 to be effective. At the date of the BGH decision, the ADSp 2017 had already been published and it was clear that the ADSp 2016 became invalid shortly thereafter. Nevertheless, the BGH remained silent on the provisions of sections 23.1.2, 23.2, 23.3.1 of the ADSp 2017. Such "eloquent silence" could be understood as an indication that the BGH is also rather critical of these provisions of the ADSp 2017.
For further information on this topic please contact Carsten Vyvers at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) OLG Stuttgart, decision dated 25 August 2021, Case File No. 3 U 287/20.
(2) BGH, decision dated 1 December 2016, Case File No. I ZR 128/15.