The plaintiff, I HGmbH, sought damages of EUR 210,000 from the defendants, S SA (Panama), C Ltd (USA), and D Ltd (Ukraine). The plaintiff bought organic wheat from the Ukraine through its subsidiary, A, which was transported in two barges on the Danube River to Vienna, Austria, but the wheat was heavily dampened after the barges ran onto a sandbank, and it also arrived with a rat infestation.

Regarding international and local jurisdiction, the plaintiff contended that three bills of lading had been issued for the cargoes. These were issued by the third defendant, the agent of the barges, on behalf of the first defendant. The first defendant was liable to the plaintiff as the carrier under the bill of lading. According to the Hamburg Rules, to be applied here, the court at the port of discharge, ie in Vienna, can hear the matter. The same result is reached according to the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI).

The first Court dismissed the action because of a lack of international jurisdiction, on the basis that the Hamburg Rules should only be applied to 'carriage by sea' and therefore not to transport carried out exclusively via inland waterways. The CMNI did not contain any jurisdiction provisions. The appellate Court agreed. The plaintiff appealed to the Supreme Court.

Held: Appeal dismissed.

The Convention of the United Nations of 1978 on the Carriage of Goods by Sea (the Hamburg Rules, Federal Law Gazette 1993/836) applies under the conditions specified in art 2 (scope) for 'contracts of carriage by sea' between two different countries.

In the explanatory note of the UNCITRAL Secretariat, the phrase 'by sea' is not explained in more detail in the remarks on the scope of the treaty. Mankabady 'Comments on the Hamburg Rules' in Mankabady (ed), The Hamburg Rules on the Carriage of Goods by Sea (1978) 27 [39] explains: 'The words "by sea" could be interpreted so as to exclude carriage of goods through lakes and rivers. If this is correct, a carriage through lakes and rivers could not be covered by definition 6.'

The Report of the UNCTAD Secretariat (TD/B/C4/315/Rev 1, S 98) explains the definition of 'carriage by sea' according to art 1.6 of the Hamburg Rules:

As only a few national legal systems draw a clear distinction between carriage by sea and by inland waterway, the term 'by sea' should not be interpreted too restrictively. Likewise, the phrase 'from one port to another' ... should not be interpreted too restrictively. The purpose of those words is to support the reference to sea transport. Thus, a port may include a port on an inland waterway.

However, this does not support the plaintiff's position in this case, since it also suggests that there must at least be a connection to shipping. But there is no such thing here, because no part of the route had to be covered by sea.

The Austrian legislature also assumes that 'the subject of the treaty is the regulation of international sea freight transport, ie sea freight traffic between two different States' (Explanation RV 919 Blg NR 18 GP 37). This understanding is also ultimately present in legal doctrines based on the traditional distinction between inland navigation and maritime transport. The Hamburg Rules only cover carriage of goods by sea. The plaintiff can therefore not rely on the Hamburg Rules to establish Austrian international jurisdiction.

The lower Courts therefore correctly dismissed the action for lack of international jurisdiction. The revision appeal must be dismissed.