Facts

In its capacity as a court for inland navigation, the Mannheim District Court settled a dispute between an inland waterway carrier (the claimant) and a sender (the defendant). The sender had instructed the carrier on short notice and despite the express statement by the carrier that his vessel was not yet available.

The main point of contention was a clause in the transport contract which stated that the cargo ready date was 13 July, subject to the availability of the vessel, whereas the discharge ready date was fixed for 15 July. In fact, loading was delayed by two days and discharge was thus performed almost a day and a half after the fixed date. The carrier claimed the payment of freight, which the sender tried to set off with an alleged claim for damages for late delivery.

Decision

The Mannheim District Court ruled in favour of the carrier. The court held that the carrier had validly exempted itself from liability for late delivery.

According to the court's interpretation of the transport contract, the flexibility agreed in respect of loading readiness was to be understood as an exemption of liability for late delivery.

Comment

Despite the Mannheim District Court's decision, its reasoning is unconvincing.

Under German law, carriers are liable for late delivery even without fault (usually limited to three times the freight). This liability may be waived or limited by agreement from the parties only to a certain extent – namely, by an agreement freely negotiated in both parties' awareness that it would limit the liability. The carrier in this case had not provided any such evidence.

However, the key to resolving this case seems to lie in the question of whether there was late delivery in the first place. Under German law, 'late delivery' applies only if goods do not arrive within the agreed time (or, in case no definitive time was agreed, within a reasonable time). Therefore, it would have been more logical to assume that the flexibility agreed in respect of the time for loading readiness was to be understood as an agreement on a flexible time for readiness to discharge as well, with the consequence that there was no late delivery in the first palace.

For further information on this topic please contact Karen Lorenz or Olaf Hartenstein at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (k.lorenz@da-pa.com or o.hartenstein@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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