The claimant was a transport insurer of cargo interests and the respondent a freight forwarding company instructed by the damaged party to deliver goods (packed in eight wooden boxes) at a fixed price by land and sea transport to Shanghai. 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 onto 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 that the boxes should have been loaded into the groupage freight container in Hamburg, two of the eight boxes were missing.

One month after the six remaining boxes had been shipped to Shanghai, the two missing boxes were found in Guatemala, where they had been shipped due to false loading. A further two months later, the two missing boxes were returned to the damaged party. To comply with the contractually 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 to the amount of two special drawing rights per kilogram of misguided freight arising from a passed-on right of the damaged party, because the two missing boxes had to be regarded as lost due to their unknown whereabouts over a long period.

The claimant's appeal against the court of appeal decision was based on the judgment that the claim for damage was limited to two special drawing rights per kilogram. The appellate court set the contested judgment aside and referred the case back to the court of appeal, as the legal assessments did not withstand the considerations which the court of appeal took into account.

The court's assessment that there was no own qualified fault on the respondent's side – which would lead to an unlimited liability under Section 660(3) of the Commercial Code – stands up to legal review.

However, Number 27.2 of the Freight Forwarders' Standard Terms and Conditions (ADSp) – which had been concluded between the damaged party and the respondent – could provide for the unlimited liability of the respondent. The terms also apply in relation to transport by sea if a freight forwarder has concluded multimodal transport. In this case, a qualified fault was present for the employees of the commissioned container packing company, which according to 27.2 ADSp and Section 428 of the Commercial Code is sufficient to constitute the respondent's unlimited liability, as the employees must be regarded as agents.

A qualified fault in the sense of reckless behaviour can result from insufficient organisation 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 transported goods is particularly susceptible to loss and must therefore be organised so that control of the incoming and outgoing goods is set up in such a way that shortages can be identified at an early stage. The fact that the location of the two lost boxes could not be ascertained in a timely manner indicated a qualified fault of the container packing company in organising its operational procedure. The container packing company employee checked only whether the respective boxes had been delivered. He did not control the subsequent discharge or record it, even though such a control system was indicated, as the discharged boxes were supposed to be stowed in a consolidated container destined for another port and thus constituted an interface when handling the transported goods. As such, repackaging is particularly vulnerable to loss, as it requires special precautionary and security measures.


The Federal Court of Justice ruled that the loss of transported goods occurs when a freight forwarder or carrier is unable to deliver the goods to the authorised recipient for an indefinite time. It is sufficient that late delivery is unlikely or unacceptable. Once the goods are lost, it is irrelevant whether they are located.

In case of multimodal transport, the preliminary works (eg, storage and stowage of the goods in the containers and 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 the transport by sea.

Handling of goods is particularly vulnerable to loss and must therefore be organised in such way that the incoming and outgoing goods are accurately controlled 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 organisation of the working process (eg, inadequate entry and exit controls) may result in the accusation of qualified fault in the sense of reckless behaviour and lead to unlimited liability.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Stefanie Landauer or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 779 70) or email (s.landauer@da-pa.com or m.remiorz@da-pa.com). The Dabelstein & Passehl website can be accessed at www.da-pa.com.