In a recently published decision, the Dusseldorf Higher Regional Court held that if a sovereign act (in this case, the destruction of goods by Customs) is rendered null and void by defective transportation for which a freight forwarder was responsible, the forwarder cannot invoke the exclusion of liability pursuant to Article 18(2)(d) of the Montreal Convention.(1)
The plaintiff, an insurer, sought compensation from the defendant, a parcel service company, for the loss of and damage to a consignment which the defendant had received from the plaintiff's policyholder in Germany to be transported to Mexico.
The plaintiff commissioned the defendant to transport the consignment 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 by Customs.
Customs destroyed the consignment in Mexico after clearance was not completed within 60 days.
The Dusseldorf Regional Court held the defendant liable for the loss of the consignment.
The Dusseldorf Higher Regional Court upheld the regional court's decision.
The higher court confirmed that, to the extent that the defendant's subsequent appeal had been based on the fact that the destruction of the consignment was inevitable once its ownership had passed to the state of Mexico (ie, after the 60-day period), exclusion of liability pursuant to Article 18(2)(d) of the Montreal Convention did not apply.
According to Article 18(2)(d), sovereign acts in connection with goods imports which result in loss, damage or destruction relieve air carriers of their liability. However, if the sovereign act is a result of defective transportation for which the air carrier is responsible, it cannot invoke the exclusion of liability.
In this case, the defendant had been unable to exonerate itself in relation to the consignor, which had issued the instruction to repatriate the transported goods.
The Higher Regional Court of Dusseldorf's decision considers the underlying principle of Article 18(2)(d) of the Montreal Convention – namely, that air carriers cannot be held liable for damages which are entirely outside their sphere of risk and influence. However, it is also a useful reminder that an exclusion of liability clause is not a free pass for carriers.
The Federal Court of Justice has long followed this principle, especially in regard to the Warsaw Convention. Presumably, the Federal Court of Justice would have decided this case similarly, particularly as judgments on Section 426 (Exclusion of Liability) of the Commercial Code and Article 17(2) of the Convention on the Contract for the International Carriage of Goods by Road (which share the same underlying principle for carriers) often follow suit.
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