The plaintiff acquired a used Mercedes car from the Frankfurt-based seller in December 2002 at a price of EUR 46,500, to be delivered in Luanda, Angola. The seller commissioned the German defendant to transport the vehicle from Germany to Angola at a fixed cost of EUR 2,500. The transport was to take place on a truck from Kelsterbach to the loading port of Antwerp, Belgium, and from there by sea carriage in a container to the destination port of Luanda. The defendant took over the vehicle, undamaged, on 17 December 2002 in Kelsterbach and handed it over on 20 December 2002 in Antwerp to the sea carrier responsible for onward transport to Luanda. Contrary to the agreement made between the seller and the defendant, the car was initially not transported in a container to Dakar, Senegal, but rather in the open. In Dakar it was loaded into a container, but without additional safety measures. On 10 February 2003, the vehicle, which had suffered serious damage during the sea transport, arrived at the destination port of Luanda, where the plaintiff took receipt of it.

The plaintiff claimed the full costs of repairing the damage, including a container deposit of EUR 400 that he had paid, for a total of EUR 41,631.52. The defendant opposed this and mainly relied on the exclusions and limitations of liability under sea carriage law. The Regional Court held against the defendant according to the application. The appeal against this was unsuccessful, with the exception of EUR 400 (the container deposit). The defendant seeks to dismiss the action in so far as it has been sentenced to pay more than EUR 4,371.26 plus interest. The plaintiff claims that the appeal should be dismissed.

Held: Appealed judgment is to be partially set aside and the action to be dismissed in so far as the defendant has been sentenced to pay an amount exceeding EUR 4,371.26 plus interest

The appellate Court rightly affirmed the defendant's obligation to pay damages for the transport damage under §§ 459, 452, 452a, 606(2) HGB [Commercial Code]. The appellate Court correctly found that a freight forwarding contract was concluded between the seller and the defendant at fixed cost (§ 459 HGB), from which the plaintiff, as the recipient of the cargo, derives his entitlement to a claim (§ 421(1) HGB).

According to § 28(4) EGBGB [Private International Law Act] German substantive law applies. According to this provision, a freight transport contract is presumed to have the closest ties with the State in which the carrier has its main place of business at the time the contract is concluded, provided that the place of loading or discharge or the main place of business of the sender is also in this State, and it does not emerge from the entirety of the circumstances that the contract has closer ties with another State (§ 28(5) EGBGB). This also applies to multimodal freight contracts. In this case, both the seller, as the sender of the damaged vehicle, and the defendant, as the company responsible for the transport in question, have their main offices in Germany. The car was also loaded here for transport to Luanda. The requirements for the application of German law according to § 28(4) EGBGB are met. There is nothing to suggest that the contract in question has closer ties to another State.

The appellate Court also rightly found that the liability of the defendant for the damage is assessed according to the provisions on the liability of a carrier (§§ 556 ff HGB). The defendant took care of the dispatch of the car at a fixed cost, so it had the duties of a carrier or carrier with regard to the transport (§ 459 HGB). The freight forwarding service was based on multimodal transport. If separate contracts had been concluded for them, individual parts of the contract would have been subject to different legal provisions. The transport of the vehicle by truck from Kelsterbach to Antwerp, Belgium, would have to be assessed according to the regulations of the CMR. For transport by ship from Antwerp to Luanda, §§ 556 ff HGB would apply. If the service of a fixed-cost freight forwarder is aimed at arranging uniform multimodal transport, § 452 HGB applies. According to § 452 HGB, the provisions of §§ 407 ff HGB are only to be applied to a uniform transport contract if nothing else arises from an applicable international Convention or the special provisions of §§ 452a ff HGB.

The appellate Court found that the damage to the car occurred on the sea route between Antwerp and Luanda. It considered that the routes between Antwerp and Dakar and between Dakar and Luanda constituted a single section of the transport in § 452 HGB because sea transport had been used throughout and the transhipment in Dakar had not interrupted the (unimodal) ship transport. This assessment does not reveal a legal error. According to § 452a HGB, the carrier's liability is governed by the law that would apply to a hypothetical contract for carriage covering the section on which the damage occurred. The finding by the Court of Appeal that the (hypothetical) partial route contract is also subject to German law is also free of legal errors. In this case, it is unnecessary to decide whether the choice of law made by the parties to a multimodal freight contract with regard to this affects this (hypothetical) partial route contract. In any case, the application of German law follows from the fact that both the seller and the defendant must have based their contractual relationship on it, have their main place of business in Germany and there is nothing to suggest that the hypothetical partial route contract in question has closer ties with another country. Since the damage occurred according to the findings of the appellate Court on the sea route from Antwerp to Luanda and German law applies to the hypothetical contract for that leg between the seller and the defendant, the liability of the defendant is based on §§ 556 ff HGB.

According to § 606 HGB, the carrier is liable for loss of or damage to the goods in the period from acceptance to delivery, unless the loss or damage is due to circumstances that could not be averted by the care of a proper carrier. In accordance with § 607(1) HGB, the carrier is responsible for any fault on the part of its servants and the ship's crew to the same extent as its own fault. In the present case, the damage occurred during the defendant's hypothetical custody period, namely during sea transport. The appellate Court also rightly found that the defendant, who bore the burden of proof, did not submit anything to the effect that it was not responsible for the occurrence of the damage. The indisputable fact that the car on the section from Antwerp to Dakar was, in breach of the contract, carried without a container and on the further section from Dakar to Luanda in a container, but without additional restraints and securing, supports the presumption that the defendant is at fault. It is true that the defendant instructed its intervener to transport the vehicle in a container from the start. However, the defendant's failure to comply with this instruction by its intervener must come within the framework of § 606 HGB read with § 607(1) HGB.

As a (hypothetical) carrier, the defendant is obliged to compensate for the damage incurred as a result of the damage to the goods in accordance with § 606 HGB. The scope of the compensation to be paid by it is determined according to § 249 BGB. Accordingly, the defendant is generally obliged to reimburse the costs incurred by the plaintiff for the repair of his vehicle. In accordance with § 249 BGB, however, the damage is to be calculated - if the requisite fault according to § 660(3) HGB is not present - by the provisions in § 660(1)(1) HGB. According to this provision, the carrier is liable up to a maximum of 666.67 units of account per piece of freight or up to an amount of two units of account for each kilogram of the gross weight of the damaged goods, whichever is higher. According to § 660(1)(2) HGB, the unit of account is the International Monetary Fund's Special Drawing Right (SDR). According to § 660(1)(3) HGB, the compensation to be paid is to be converted into Euros according to the value of the Euro against the SDR on the day of the judgment - an agreement deviating from this is not shown. The day on which the final judgment is pronounced is decisive. With the weight of the damaged vehicle of 1,875 kg and the value of the SDR on 18 June 2009, this results in compensation that is below the replacement amount of EUR 4,371.26 recognised by the defendant in the appellate Court.

The appellate Court found that the damage to the car was due to an unlawful failure to secure the goods during sea transport, which was carried out recklessly and in the knowledge that damage was likely to occur. The finding of requisite fault under § 660(3) HGB is justified by the undisputed circumstance that the vehicle was initially transported - contrary to the contract - without a container and other securing devices from Antwerp to Dakar, and from there in a container but without additional restraints to Luanda. The appellate Court then left it open whether the breach of duty was based on negligence on the part of the defendant or on the failure of its employees or agents. This meant that the defendant, as a hypothetical sea carrier, would have to answer for the fault of the company commissioned with the sea transport and its servants and agents in accordance with § 607(1) HGB. This assessment does not stand up to the legal review. Pursuant to § 660(3) HGB, the carrier loses the right to any limitation of liability 'if the damage is due to an act or omission which the carrier has committed with intent to cause damage, or recklessly and with knowledge that damage would probably result'. The wording of the provision, in which only the 'carrier' and not also - as for example in § 435 HGB - the persons named in § 428 HGB ('his servants or agents') are mentioned, could indicate that that the limitations of liability according to §§ 658, 659, 660(1) HGB only apply if the carrier is at fault. However, this conclusion is not mandatory. It should be noted that in § 607(2) HGB it is expressly provided that the carrier is exempt from liability for its fault if the damage is caused by acts etc in the management or other operation of the ship (so-called nautical fault) or caused by fire. Furthermore, it should be taken into account that § 660(3) HGB represents a supplement to the Hague Rules through the Visby Rules, which were adopted at a diplomatic conference on maritime law in Brussels on 23 February 1968. This meant that the Hague Rules were to be put on an equal footing with other international Conventions governing transport law, such as the Warsaw Convention 1929 in the version adopted in The Hague in 1955 and the CMR. Both in the Warsaw Convention (art 25) and in the CMR (art 29(2)), negligence on the part of employees or agents is equated with negligence on the part of the air or land carrier. In contrast, art 13 (loss of the right to limitation of liability) of the Athens Convention 1974 does not contain any such equal treatment, but intead an express provision that only fault on the part of the carrier itself leads to the loss of the right to limit liability.

Article 4.5.e of the Hague-Visby Rules, from which § 660(3) HGB derives (justification for the Federal Government's draft law on the Second Law of the Sea Amendment Act, BT-Drucks 10/3852, p 23 f), does not equate the entrepreneur's own fault with the fault of the persons working for it. From the history of § 660(3) HGB it emerges clearly that the liability limitations in §§ 658, 659, 660(1) HGB should only be omitted if the carrier is at fault. The provision of § 660(3) HGB was inserted by the Second Law Amendment Act of 25 July 1986 (Federal Law Gazette I, p 1120 ff). In terms of content, it agrees with art 4.5.e of the Hague-Visby Rules, which regulates the loss of liability limitations in favour of the entrepreneur.

As an annex to § 664 HGB, numerous provisions of the Athens Convention of 1974 were incorporated into the HGB by the Second Maritime Law Amendment, namely the provision of art 13 concerning the loss of the right to limitation of liability, which is now included as art 10 of the annex to § 664 HGB. However, the German legislature has not adopted art 13 of the Athens Convention 1974 unchanged. Rather, art 10.1 of the Annex to § 664 HGB stipulates that the carrier loses the right to limitation of liability 'if the damage was caused deliberately or through gross negligence by him or one of his employees or agents in the performance of their duties' - going further than art 13. This expressly equates the fault of the carrier with the fault of the persons working for him.

When incorporating art 4.5.e of the Hague-Visby Rules in the HGB, however, the German legislature has refrained from stipulating by an addition in § 660(3) HGB that the fault of the ship's crew and the employees of the carrier leads to the elimination of the liability limits in §§ 658, 659, 660(1) HGB. This circumstance justifies the finding that § 660(3) HGB, which only mentions the fault of the carrier, is to be interpreted in such a way that only the fault of the carrier results in unlimited liability. The provision of § 607(1) HGB, on which the appellate Court based its judgment, does not contradict this assessment, because it only concerns liability in terms of the merits and is not also relevant to the question of the amount of liability of the sea carrier.

If the carrier is a legal person or corporation, the loss of the right to limitation of liability requires qualifying fault on the part of the defendant's organs, in this case the managing director of the defendant (see BGH, judgment of 3 November 2005 - I ZR 325/02 (CMI1092)). The appellate Court made no finding about this. The plaintiff's submission does not give any indications for a finding of a serious breach of duty by the defendant's manager that caused the damage. In particular, when placing the transport order, the defendant expressly gave the instruction to transport the vehicle in a container. It should and would be allowed to rely on the company commissioned by it to observe these instructions and also to carry them out properly.