The plaintiff is the transport insurer of E + L (policyholder). The plaintiff seeks compensation from the defendant freight forwarding company under the transferred right of the policyholder for the misdirection of transported goods. The policyholder commissioned the defendant on 29 March 2012 at a fixed cost to transport goods packed in eight wooden boxes from L to A by land and by sea to Shanghai. The delivery to the recipient there was to take place by 9 May 2012. The German Freight Forwarders' General Terms and Conditions (ADSp) in the version valid until the end of 2015 were incorporated into the transport contract. The defendant transferred the sea transport to the second intervener. The latter accepted the booking as the German agent of the first intervener.

The defendant picked up the boxes on 29 March 2012 from the policyholder. On 4 April 2012, the defendant informed the policyholder for the first time that two of the eight boxes could no longer be found. On 10 April 2012, the defendant informed the policyholder that it held the shipment on 30 March 30 2012 at a specified container packing company in Bremen. Due to a short-term change of the departure port, the freight was transported from there to the port of Hamburg on the same day. When the loading of the groupage container intended for Shanghai began on 4 April 2012, two of the eight boxes could no longer be found. They were being searched for in order to deliver them to Shanghai as soon as possible.

On 3 May 2012, the policyholder received the news that the missing boxes were in Guatemala due to incorrect loading by the second intervener. The two boxes, each weighing 638 kg, were subsequently transported back to Germany, where they were returned to the policyholder in early July 2012. In order to meet the delivery deadline, the company had in the meantime remanufactured the goods in the two boxes and sent them to Shanghai.

The plaintiff paid the policyholder compensation in the amount of EUR 26,947.16, constituting the difference between the costs of remanufacturing the goods and the realisable residual value of the returned goods plus the costs of processing and determining the damage. The plaintiff claimed this amount plus interest from the defendant. The plaintiff argued that the defendant has to compensate for the damage incurred in full because the two boxes were lost during the overland transport due to a qualified fault of the defendant or a company it engaged.

The defendant and the interveners contested the action. The Regional Court dismissed the action. The plaintiff's appeal was only successful in the High Regional Court in an amount corresponding to 2,552 SDRs plus interest. The plaintiff appealed again.

Held: The appeal against this assessment leads to the annulment of the contested judgment and the referral of the matter back to the Court of Appeal. This is rightly based on the applicability of German substantive law, and the active legitimation of the plaintiff, as well as the fact that the defendant is basically obligated to pay damages to the plaintiff because of the misdirection of the two boxes. However, the considerations with which the appellate Court regarded the defendant's liability as limited in amount do not stand up to legal review.

The appellate Court correctly assumed that the defendant is fundamentally liable for the misdirection of the policyholder's boxes in accordance with the provisions of sea freight law. The policyholder and the defendant concluded a forwarding contract, according to which the defendant had to organise the transport of the eight boxes from L to Shanghai at fixed cost (§ 459 HGB [Commercial Code]). The appellate Court rightly assumed that the provisions of §§ 452 ff HGB are to be applied to this contract because the defendant had to arrange multimodal transport. This uniform forwarding service involved transportation with various modes of transport (truck and ship) as their object. In the case of a separate order, transport by truck would comply with the provisions of land freight law (§§ 407ff HGB) and the transport by ship would be subject to the provisions of sea freight law in the version valid until 24 April 2013 (§§ 556 ff HGB (old version)).

If it is established in a multimodal transport that the loss has occurred on a certain section, the liability of the freight forwarder is determined in accordance with § 452a HGB according to the legal provisions that would apply to a contract for a transport on this section. Otherwise, its liability in accordance with § 452 HGB is fundamentally based on the provisions of land freight law. According to § 452 HGB, this also applies if part of the transport is carried out by sea. The Court of Appeal correctly found that the defendant's liability was based on sea freight law, because it was established that the two boxes in question had been lost on the sea route.

The Court of Appeal further found, without error of law, that the misdirection of the boxes should be treated as a loss. When assessing whether goods have been lost, an economic assessment from the point of view of the injured party is decisive. A loss is to be assumed if the carrier or shipper is unable to deliver the goods to the authorised recipient for an indefinite period of time for factual or legal reasons (cf BGH, judgment of 10 July 1997 - I ZR 75/95, TranspR 1998, 106, 108; OLG Düsseldorf, TranspR 2005, 468, 471). It is sufficient that the later delivery is unlikely or unreasonable. If the goods are lost, it does not matter whether they were found later or whether the sender recovered them (see BGH, judgment of 27 October 1978 - I ZR 30/77, VersR 1979, 276, 277; OLG Düsseldorf, TranspR 2005, 468, 471).

The appellate Court also proceeded from these principles. It assumed that the misdirected boxes were to be regarded as lost, even if they were not finally lost. Their whereabouts was unclear for a month. When they were found again in Guatemala six days before the contractual delivery deadline expired, the defendant informed the policyholder that the boxes could not be forwarded immediately and recommended that the mutually agreed replacement production should continue. The assumption of a loss does not preclude the fact that the boxes were brought back to Germany after they were found. The return delivery served solely to mitigate the damage suffered by the policyholder as a result of the loss.

The application of § 452a HGB requires a known place of damage. It therefore requires that the loss, damage or event that led to the delivery deadline being exceeded can be proven to have occurred on a specific section of the route. According to § 452a HGB, the proof of this is incumbent on the person who claims a specific loss location. The appellate Court found that the error that caused the misdirection was made during stowage at the terminal of the Port of Hamburg when two boxes were accidentally not unloaded from the container intended for Ecuador, but the unloading was nevertheless noted in the accompanying documents. No other theoretically conceivable course of events than the course of events claimed by the defendant and the interveners is plausible and obvious. The fact that the two boxes were found in a seaport in Guatemala shows that they reached Hamburg and were loaded onto a ship. A clear indication of the arrival of all eight boxes in Hamburg in the loading container from Bremen is also that eight actuating devices intended for Shanghai were listed in the container packing list and in the individual paper for the shipment. If the two boxes had been unloaded from the loading container in Hamburg and only then assigned to the cargo intended for South America, this error should have been noticed when loading the container intended for Ecuador. On the other hand, it is easy to understand that the cargo remaining in the loading container was not checked again when it was supplemented with further packages for South America, and therefore the two crates that were mistakenly left there were not discovered.

The appeal unsuccessfully argued against the finding of the appellate Court that the fact that the two boxes were left behind in the loading container intended for Ecuador, which was the cause of the loss, was to be attributed to the sea leg. If the loss of a contract for multimodal transport does not occur during transport, but rather during a transport-related service phase, the liability must be based on which of the hypothetically concluded individual contracts this phase is typically subject to (cf the rationale for the government draft of the Transport Law Reform Act, BT-Drucks. 13/8445, p 101). If the loss occurs during the loading or unloading of goods to be transported by land and sea, it depends on whether the loading or unloading is part of the hypothetical obligations of the forwarder or the carrier and falls within the period of the care for the goods of the carrier concerned (see BGH, judgment of 18 June 2009 - I ZR 140/06, BGHZ 181, 292 (CMI1091)).

In the case of multimodal transport of goods that are initially to be transported by sea and then by land, the sea route usually does not end until the goods are loaded onto the means of transport with which they are to be removed from the port and transported overland (cf BGH, judgment of 3 November 2005 - I ZR 325/02, BGHZ 164, 394, 396 (CMI1092); judgment of 18 October 2007 - I ZR 138/04, TranspR 2007, 472; judgment of 11 April 2013 - I ZR 61/12, TranspR 2013, 437; OLG Hamburg, TranspR 2008, 213, 215 f). This is supported by the fact that, in addition to unloading from the ship, the storage or relocation of the goods in the port area is typical for containerised sea transport and therefore has a close connection to the sea route. In addition, a check is not generally made of the contents of a container when they are unloaded from the ship, but no earlier than the date on which the container is to be removed from the terminal (cf BGHZ 164, 394, 396; BGH, TranspR 2013, 437). In addition, in the case of a sea freight contract in accordance with § 606 HGB (old version) the carrier owes the delivery of the goods and for this purpose must give up its possession with the consent of the legitimate recipient and put the latter in a position to exercise possession of the goods. As a rule, this requirement is not met when the cargo is unloaded, but only when the goods begin to be loaded onto the means of transport with which they are to be removed from the port (cf BGHZ 164, 394, 397). The loading process is then no longer assigned to the sea route, but to the subsequent land route (see BGH, TranspR 2007, 472; TranspR 2013, 437).

The appellate Court applied these principles accordingly to this case, in which the boxes to be transported by land and sea were first transported in a container by truck to the port area and then were to be loaded onto a ship in the port. It was assumed that the land transport had ended when the container filled with the boxes was unloaded from the truck's trailer. The subsequent storage of the container in the port area and the compilation of the delivered consignments for the ship's destinations in such a way that the goods were unloaded from the container parked in the port for the purpose of reloading them into another container, are typically closely related to sea transport. Loading the ship represents a preparatory relocation of the cargo. The relocation also meant that boxes were left in a container. This assessment is not objectionable for legal reasons.

The storage of a container stocked with goods at the port terminal (cf BGH, TranspR 2013, 437) and the stowage of the goods in containers there (cf OLG Stuttgart, TranspR 2011, 32, 34) constitute preparatory work for the shipment of the transported goods and are therefore regularly assigned to the sea route. This also applies if goods are unloaded from a container intended for a certain seaport and loaded into a container intended for another seaport. These are typical transhipment operations in the port area, which have a close connection to the upcoming sea transport and which regularly check which goods are to be reloaded. If - as here - in the course of the distribution of the shipments to the various containers, the unloading of goods is not carried out, this is an error in the relocation of the goods for their upcoming shipment, which is fundamentally subject to the provisions of sea freight law.

This assessment is in line with the provisions of land freight law and sea freight law. According to § 425(1) HGB, the carrier is liable for the loss of goods until they are delivered. The delivery requires that the carrier make the goods available to the recipient by relinquishing its own property in such a way that the recipient can acquire property control without further obstacles. The carrier's liability for the loss of goods begins, in accordance with § 606 HGB (old version) with its acceptance. The assumption is that the carrier or a transhipment or quay company acting on its behalf takes the goods into its care for the purpose of shipping them. A container which, as in this case, is parked in the port area for the shipment of the goods in it, is no longer in the possession of the carrier delivering the container, but under the authority of the second carrier and is therefore subject to its custody liability.

The defendant is liable for the loss of the two boxes on the sea route in accordance with the sea freight regulations of §§ 606 ff HGB (old version). The appellate Court correctly found that by including the ADSp in the transport contract, the parties did not agree that the defendant should also be liable on the sea route in accordance with land freight regulations (see BGH, TranspR 2016, 404; OLG Hamburg, TranspR 2010, 337, 341). The limitation of liability regulated in cl 23.1.3 ADSp differs from the limitation of liability in § 660(1) HGB (old version) in so far as it does not permit liability up to an amount of 666.67 SDRs per package or unit of the lost goods if this amount is higher than 2 SDRs per kg of the gross weight of the lost or damaged goods. The form-based reduction of the upper limit of liability is permissible according to the provisions of the sea freight law applicable until 24 April 2013 (see BGH, TranspR 2013, 437). The carrier's obligations under § 660 HGB (old version) (the liability amount) cannot, according to § 662(1) HGB (old version), be limited in advance by a legal transaction if a bill of lading is issued. This only affects the freight forwarder's bill of lading liability towards the holder of the bill of lading, but not the freight forwarder's liability towards the shipper (see BGH, judgment of 9 December 1991 - II ZR 53/91, TranspR 1992, 106, 108; OLG Hamburg, TranspR 2007, 253, 255; TranspR 2010, 337, 341).

In the opinion of the appellate Court, the defendant was only liable in the amount corresponding to the value of 2 SDRs per kg of the two lost boxes due to lack of qualified fault on its part in accordance with § 660(1) HGB (old version). This is incorrect. According to § 660(1) HGB (old version), the carrier is liable for loss of the goods up to a maximum amount of 666.67 SDRs for the package or unit or 2 SDRs per kg of the gross weight of the lost goods, whichever is higher, unless the type and value of the goods are specified by the shipper and this information is included in the bill of lading. The appellate Court correctly found that the calculation based on the weight of the two misdirected boxes results in the higher amount.

The judgment of the appellate Court that there is no qualified fault of the defendant necessary for unlimited liability according to § 660(3) HGB (old version), stands up to legal review. According to § 660(3) HGB (old version) the carrier loses its right to limitation of liability according to § 660(1) HGB (old version) if the damage is due to an act or omission where the carrier intends to cause damage, or has acted recklessly and knowing that damage is likely to occur. A corresponding regulation can be found for the freight forwarder in cl 27.2 ADSp. The limitation of liability according to § 660(1) HGB (old version) only does not apply if the carrier is at fault (see BGHZ 181, 292; BGH, judgment of 18 March 2010 - I ZR 181/08, TranspR 2010, 376 (CMI1109); judgment of 24 November 2010 - I ZR 192/08, TranspR 2011, 161). If the carrier is a legal person, the loss of the right to the limitation of liability of § 660(1) HGB (old version) requires a qualified fault on the part of the carrier's organs (see BGHZ 181, 292; BGH, TranspR 2010, 376; TranspR 2011, 161). Such a qualifying fault is particularly likely in the case of gross organisational negligence on the part of the carrier's management (see BGH, judgment of 29 July 2009 - I ZR 212/06, TranspR 2009, 331 (CMI1112); reason for the government draft of the Maritime Trade Law Reform Act, BT- Drucks 17/10309, p 84).

The appellate Court found that the defendant was not responsible for an organisational deficiency because the subcontractor responsible for unloading, intermediate storage and loading had an adequate interface control installed. The appellate Court did not make any determinations on the question of whether the managing directors of the defendant could be blamed for serious failures in the organisation of their own operational area. However, they could rely on the interveners engaging a quay handling operation which reliably counteracted the loss of the transported goods through the organisation of its operational processes (see BGHZ 181, 292; OLG Hamburg, TranspR 2008, 213, 218). The appeal does not claim that the managing directors of the defendant had evidence of organisational deficiencies at the container packing company they commissioned. Accordingly, it cannot be assumed that the defendant was at fault.

However, the appeal successfully opposes the appellate Court's finding that the application of cl 27.2 ADSp could not result in the unlimited liability of the defendant. According to cl 27.2 ADSp, the above limitations of liability do not apply if the damage was caused intentionally or recklessly and with the knowledge that damage is likely to occur in the cases of §§ 425 ff, 461(1) HGB by the freight forwarder or the persons named in §§ 428, 462 HGB. The 'above limitation of liability' includes the regulation in cl 23.1.3 ADSp, which lists the liability of the freight forwarder in the event of loss of or damage to the goods in the case of a transport contract for transport by various means of transport including sea transport as being limited to 2 SDRs per kg, whether the loss occurred on the land route or on the sea route (see BGH, TranspR 2016, 404; OLG Hamburg, TranspR 2010, 337, 342).

The appellate Court found that the application of cl 27.2 ADSp could not lead to the defendant being liable without limitation. The regulation only breaks through the limitation of liability in cl 23.1.3 ADSp, but not the additional statutory upper limit of liability in § 660 (1) HGB (old version) (cf OLG Hamburg, TranspR 2008, 213, 218; TranspR 2010, 337, 341, 343; LG Bremen, TranspR 2010, 347, 348). This is incorrect. Clause 27. 2 of the ADSp's liability system regulates the conditions under which the freight forwarder is liable without limitation. As this Court decided after the appeal judgment was issued, in the case of multimodal transport including a sea route, this provision means that a qualified fault of the servants or agents of the freight forwarder (in § 428 HGB) is sufficient - unlike § 660(3) HGB (old version). If the liability is assessed - as in this case - according to the sea freight law applicable until 24 April 2013, this constitutes a permissible deviation from the statutory regulation of the elimination of the limitation of liability to the disadvantage of the freight forwarder as the user of the general terms and conditions (see BGH, TranspR 2016, 404). In deviation from § 660(3) HGB (old version), the freight forwarder is therefore also fully liable if the persons named in cl 27.2 ADSp, § 428 HGB are at serious fault (cf BGH, TranspR 2016, 404).

On the basis of the findings of the appellate Court, the defendant's unlimited liability for a qualified culpability attributable to it according to cl 27. 2 ADSp of the container packing company entrusted with unloading the boxes from the loading container cannot be denied. Control of the unloading was indicated in this case because it involved the stowage of unloaded goods in groupage containers for other ports of destination and in this respect represented an interface in the handling of the transported goods. The repackaging of goods is particularly prone to loss and therefore requires special care measures and safety precautions (see BGH, judgment of 25 September 1997 - I ZR 156/95, TranspR 1998, 262, 264). The inadequate checking of the unloading resulted in the particular risk that the whereabouts of the goods in the loading container was not determined promptly and that these goods were therefore - as happened - directed to an incorrect destination from which they could not be transported further. This risk was all the greater since the goods remaining in the loading container were not checked again before they were shipped to Ecuador, so that there was no further exit control.

The appellate Court's judgment that the handwritten completion note on the accompanying paper was sufficient safeguard against failure to unload, is not free from legal errors. An effective incoming control presupposes that the incoming items are recorded as inventory and that an accidental or intentional non-registration is adequately counteracted (cf BGH, judgment of 6 February 1997 - I ZR 222/94, TranspR 1998, 78, 79; BGH, TranspR 1998, 262, 264). The control measures established must interlock in an orderly, clear and reliable manner and ensure that the theoretically intended organisational measures are also carried out in practice (see BGH, judgment of 4 May 1995 - I ZR 70/93, BGHZ 129, 345, 350; judgment of 27 February 1997 - I ZR 221/94, TranspR 1997, 440, 442; BGH, TranspR 1998, 78, 79). These principles apply accordingly to checking whether goods have been unloaded from a container. The handwritten note of the employee entrusted with the unloading did not constitute a sufficient control measure. It did not effectively prevent the employee - as assumed by the Court of Appeal - from signing the accompanying paper due to a momentary failure without having checked the complete unloading of the shipment (see BGH, TranspR 1998, 262, 263 f; TranspR 2015, 33). Incorrect documentation of the unloading promoted the loss of goods in particular because - as the present case shows - it made the search for goods that had gone astray much more difficult.

On the basis of the presentation made by the defendant and the interveners, there are therefore serious organisational deficiencies in the operational area of the container packing company, which suggest that the defendant is responsible for their qualified fault. The fact that the operating procedures of the container packing company provided for a different data recording of the transport goods unloaded from the loading container, which counteracted their shipment to the wrong destination, is not apparent from the submission of the defendant and the interveners. In this respect, contrary to the view of the Court of Appeal, it is not about a double, but rather an effective entry control. On the basis of the submission so far made by the defendant and the interveners, gross organisational deficiencies on the part of the container packing company in checking the completeness of the unloaded shipment cannot be ruled out. The defendant and the interveners will have the opportunity in the reopened appeal proceedings to present the secondary burden of proof incumbent on the defendant.