The plaintiff was the transport insurer of B GmbH, located in Upper Austria (B). The defendant, based in Salzburg, was an international transporter (including by sea) and had previously worked for B in this capacity. In June 2015, B commissioned the defendant to transport a container with 854 boxes of batteries (total weight of 17,518.40 kg) from China to B at a fixed price by sea, train, and truck. The defendant's terms stated:

We work exclusively on the basis of the 'General Austrian Freight Forwarding Conditions (AÖSp) ... in its currently applicable version' ... It is expressly pointed out that the AÖSp limits the liability of the freight forwarder in all cases and without exception. ... If the exact location of the damage in multimodal transport cannot be proven, liability must again be assessed according to the AÖSp. ... In the case of the issuance of [the defendant's] own Bills of Lading/Air Way Bills, an offer refers to the bill of lading/AWB conditions used by [the defendant], which in this respect take precedence over the AÖSp. This applies in particular with regard to delivery times and limitations of liability. ...

The defendant as carrier also issued a bill of lading to B as the 'receiver' of the batteries from the 'shipper' Z Co Ltd:

We hereby confirm that that we have taken over the shipment described below from the aforementioned sender in apparently good order and condition for irrevocable transport in accordance with the shipping order. One of these through bills of lading must be handed over endorsed against handover of the goods.

The business conditions were stated on the reverse of this bill of lading and the following text was printed in cl 17.

'Limitation of actions': Unless expressly agreed, the transport company is to be released from any liability in accordance with these conditions, unless a lawsuit is filed within 9 months of delivery of the goods, or after the date on which the goods should have been delivered, or after the date on which, in accordance with clause 6.4, failure to deliver the goods would entitle the addressee to treat the goods as forfeit.

B attached its company stamp and a signature to the back of the bill of lading printed with these business conditions. B did not raise any objection to the conditions of the bill of lading. In previous orders processed with B, bills of lading on which these conditions were printed on the back were also used by the defendant and stamped and signed by B.

The goods were in a container transported by the secondary intervener. There was no damage to the container or goods during transport by ship. The ship arrived at the port in H[amburg] on 25 June 2015. The batteries were to be transhipped there and loaded onto the railway. The container and the batteries contained therein were damaged during handling within the port terminal in H[amburg] and before loading for rail transport could begin. Due to the damage, it was initially not possible to load the container onto the railway.

The defendant informed B of the damage for the first time in a letter dated 29 June 2015. The cargo was repackaged and loaded into another container on 6 July 2015 under the supervision of an expert, transported by train a few days later, and finally loaded onto a truck. The container with the damaged goods was unloaded by B on 14 July 2015.

The plaintiff, as the transport insurer, paid B, as its policyholder, EUR 44,390.45 for the damage caused to the cargo.

In its lawsuit filed on 8 July 2016, the plaintiff sought reimbursement from the defendant. The plaintiff argued that, in the case of multimodal transport, the provisions of the CMR and those of the UGB on maritime trade would apply. The freight law (§ 413 UGB) displaces the AÖSp. According to art 32 CMR, the claims would expire within one year of delivery, so the statute of limitations had not yet occurred. Even when applying the maritime law provisions of the UGB (§§ 612, 662 UGB; limitation period also one year), the statute of limitations had not yet occurred. Where a bill of lading had been issued, as in this case, neither the liability amount nor the limitation period could be contractually limited - eg by the AÖSp - according to § 662.1 UGB.

The defendant requested that the claim be dismissed. The CMR should not be applied. The damage to the container was caused by a terminal vehicle during the transhipment carried out in the seaport terminal in H[amburg] and was therefore attributed to the sea freight route. Because of the location of the damage in the seaport, sea freight law must be applied, which leaves no room for the application of the CMR. In the case of multimodal transport, the one-year exclusion period of § 612 UGB begins to run from the time of delivery on the relevant leg, here in H[amburg]. According to § 64 AÖSp, the claim is time-limited and expired. In addition, the defendant's liability would be limited to EUR 1,090.09 in accordance with § 54 AÖSp.

The trial Court dismissed the lawsuit. Liability for the multimodal transport was based on the location of the damage at the port terminal H[amburg] and the maritime trade law that (still) applied to this section of the route. There was no room for the use of CMR. Since a bill of lading was issued, § 612 UGB applied, which stipulates a one-year exclusion or pre-exclusive period, which must be taken into account ex officio and after which the claim expires. Since the time of delivery of the goods on the relevant leg is crucial for multimodal transport and since § 611.1 UGB, which is expressly mentioned in § 612 UGB, uses the term 'unloading port', the place of takeover and delivery can only be taken to indicate the delivery of the goods at H[amburg] no later than 29 June 2015 and not delivery to B on 14 July 2015. Accordingly, the lawsuit was filed late on 8 July 2016, and the claim had already expired. Even if one wanted to consider the delivery to B on 14 July 2015 to be decisive, the plaintiff would have nothing to gain with regard to the limitation period of § 64 AÖSp.

The appeal Court did not accept the plaintiff's appeal. It also took the view that § 662.1 UGB concerns the one-year expiry period of § 612 UGB, but does not prevent a contractual shortening of the one-year limitation period regulated in §§ 439 and 414 UGB by § 64 AÖSp. If the location of the damage is known, in the case of multimodal transport, the acceptance and delivery at the end of the relevant section of the route also determines the start of the limitation period. The first instance Court therefore also correctly recognised that unloading at the 'port of discharge' was decisive for exemption from liability after one year (§§ 611.1 and 612 UGB). In summary, the plaintiff's claim for compensation was time-barred under both freight forwarding law and sea freight law.

The plaintiff brought an extraordinary appeal to the Supreme Court.

Held: Appeal dismissed.

Claims against a freight forwarder due to loss, reduction, damage, or late delivery of goods expire in one year in accordance with § 414.1 UGB. The limitation period can be extended by contract. According to § 414.2 UGB, in the event of damage or reduction, the limitation period begins at the end of the day on which delivery took place; in the case of loss or late delivery, at the end of the day on which delivery should have been effected. According to § 439 UGB, the provisions of § 414 UGB apply accordingly to the statute of limitations of claims against the carrier due to loss, reduction, damage, or late delivery of the goods.

According to § 64 AÖSp, all claims against the freight forwarder, regardless of the legal basis and regardless of the degree of fault, expire in six months (see RIS - Justice RS0106911). The short limitation period of § 64 AÖSp does not exclude gross negligence (RIS - Justice RS0049684). The limitation period begins when the entitled person becomes aware of the claim, but at the latest when the goods are delivered. Section 414 UGB is dispositive, which is why different contractual agreements are permitted. Therefore, if the AÖSp is used as a basis, the limitation period is shortened to six months for all claims according to § 64 AÖSp (1 Ob 2374/96s).

According to the regulation of § 612 UGB concerning sea freight law, the carrier is released from all liability for loss or damage to the goods if the claim is not made within one year from the delivery of the goods or from the time at which they should have been delivered. If - as here - a bill of lading is issued, then according to § 662.1 UGB, the carrier's obligations (among others) under § 612 UGB cannot be excluded or limited in advance through legal transactions.

The lower courts assumed - derived from 7 Ob 145/10i - that the mandatory setting of the deadline of § 612 UGB at the carrier's expense by § 662.1 UGB does not conflict with the application of § 64 AÖSp because the latter provision, in contrast to § 612 UGB, is not a limitation [ie extinction] of liability, but (only) a limitation provision that has no influence on the claim itself. The expert Senate cannot agree with this view: first, the decision 7 Ob 145/10i did not concern the assessment of the scope of § 662.1 UGB in question here, but rather the relationship of § 64 AÖSp to § 51 AÖSp. In addition, expiry of claims and statutes of limitations - measured in terms of their practical significance and apart from the continued existence of a natural obligation - are essentially similar legal institutions. If one therefore understands § 612 read with § 662 UGB as a mandatory forfeiture clause to the detriment of the carrier, then the agreement on the shorter limitation period in § 64 AÖSp also represents a significant restriction on the pursuit of claims by the client, which contradicts § 662 UGB and is therefore inadmissible. The expert Senate therefore assumes that the agreement on the shorter limitation period in § 64 AÖSp represents a shortening of the expiry period in § 612 UGB that contradicts § 662 UGB and is inadmissible within its scope of application.

The scope of application of § 662 UGB is, however, significantly restricted by § 663 UGB. According to § 663.2.2 UGB, § 662 UGB no longer applies to the obligations that the carrier has with regard to the goods in the period before they are loaded and after they are discharged, since there is no maritime danger in these areas anymore, but there is still or already new land damage. The carrier's liability with regard to the goods for the period before their loading and after their discharge may therefore be contractually shortened in deviation from § 662 UGB, which is why there is no obstacle to agreeing the shorter limitation period in § 64 AÖSp for these periods.

As an interim result, it should be noted in the given context: Insofar as the damage is not to be assessed according to the CMR, but the statute of limitations is based on §§ 414, 439 UGB or the damage to the cargo is to be assessed according to sea freight law and during the time before their loading and after their discharge (§ 663.2.2 UGB), the limitation period can be effectively shortened to 6 months by agreeing to § 64 AÖSp.

In the case of a multimodal transport that can only be broken down into sections (and not into intermediate areas), in which the reloading was not separately agreed and did not require a means of transport that is unusual for a port terminal, the unloading and reloading the goods in the port can still be assigned to the sea route, as such a process is typical for sea transport. In the case of sea cargo, unloading is completed after the cargo has been transported from the cargo hold over the ship's rail by setting it down on the quay or in a lighter. It is clear that the damage to the container and the goods did not occur during the actual sea transport, but only after the 'discharge' (unloading) due to the collision of two straddle stacker trucks during the handling for reloading in the port terminal. Section 663.2.2 UGB therefore applies to this period, which enables the shorter limitation period of § 64 AÖSp to be effectively agreed.

Even if port transhipment should be considered as a separate section (see 7 Ob 145/10i; cp also 7 Ob 147/10h), this would not lead to any different result. In any event, the CMR does not apply to this section. According to Austrian law, contracts for the transport of goods by road by vehicle for consideration are (only) subject to the CMR if the place of acceptance of the goods and the place intended for delivery are in two different States, at least one of which is a contracting State (art 1.1 CMR). None of this applies to the area of the port terminal in H[amburg] (see 7 Ob 145/10i ). This would mean having recourse to the general provisions of the UGB, namely §§ 439 read with 414 UGB, according to which claims arising from the freight contract expire within one year, but the limitation period can be shortened by agreement. As a result of the AÖSp agreement, the deadline would then be shortened to six months.

Regardless of whether the damage is attributed to the sea route or to a separate section (transhipment), the applicable regulations of § 663.2.2 UGB or §§ 439 read with 414 UGB apply to allow the effective agreement of a limitation period shortened to six months in § 64 AÖSp. Even if one only assumes the time of actual delivery of the goods to B on 14 July 2015, the lawsuit was filed on 8 July 2016 after six months had passed. Any claim that might have been transferred to the plaintiff was therefore time-barred. Finally, the question (which was not taken up by the parties) as to whether the six-month period according to the AÖSp or the nine-month period specified in the bill of lading should apply, can be left open due to lack of relevance because the longer period has also expired.