The plaintiff is the cargo insurer of AW in Bremen. It claims against the defendant, a Bremen-based freight forwarding company, under the assigned and transferred rights of AW, for damage to goods in transit.

In a contract dated 2 February 2001, AW sold 14 wind turbines to an Australian company for a total price of around EUR 11,250,000. According to the agreements made, it had to deliver the turbines to Codrington, Australia, and set them up there. AW commissioned the defendant to transport the 14 turbines from the production plant in Denmark to Australia at a fixed cost. The turbines would initially be transported by sea to the port of destination in Portland, Australia, and from there by truck to the installation site. The defendant commissioned an Australian transport company with overland transport in Australia from Portland to Codrington. The turbines were dismantled into individual parts for transport.

Since there was no public road on the last section of the route to the installation site of the wind turbines, AW had a road of sand-lime brick built on this stretch. After five wind turbine gondolas had been smoothly transported from the port in Portland to the installation site, an accident occurred while the sixth gondola was being transported on 6 May 2001. The low-loader on which the transport frame with the gondola was located leaned so sharply to the right in the area of a rising left-hand bend with an external slope that the gondola and the transport frame tipped over from the low-loader and were severely damaged. There is a dispute between the parties about the cause of the accident.

The damaged gondola was first transported back to Portland and examined there by an expert on behalf of AW. AW then decided to send the gondola back to Denmark for repair. The defendant, who was also responsible for the return transport at fixed costs, took over the damaged gondola on 31 October 2001 and delivered it in Hamburg on 25 January 2002 after the sea transport had been completed. When the gondola arrived in Hamburg, it was found that it had fallen over during the return transport together with the transport frame and the transport platform (Mafi trailer).

According to the plaintiff, the defendant has unlimited liability for the damage caused. In addition, it alleged that the carrier commissioned by the defendant to carry out the overland transport had taken the curve on the construction road in too tight a radius, so that the low-loader on which the gondola was located tipped over. In addition, the carrier, whose behaviour the defendant must be responsible for, had only inadequately secured the cargo against transport risks. The defendant's unlimited liability for the damage incurred during the overland transport also results from the fact that it did not meet its secondary burden of proof with regard to the details of the course of the accident. The defendant is also unlimitedly liable for the damage incurred on the sea route, since there is no explanation from the defendant about the cause of the damage. The principles on the secondary burden of proof should also be applied in sea freight law. The defendant did not in any way satisfy the secondary burden of proof that was incumbent on it, so that qualified fault can be found.

The plaintiff alleged that AW suffered a loss of EUR 515,126.84. The damaging event in Australia accounted for EUR 283,740.32 of this. The defendant has unlimited liability for this damage, so that any further damage that occurred on the return transport is also included as consequential damage from this liability. The plaintiff paid the amount in suit to AW to settle its claims.

The defendant opposed this. With regard to the damage incurred during the overland transport, it submitted in particular that the low-loader tipped over because it sank into the bottom of the poorly constructed construction road. The accident was unavoidable for the carrier, even with the utmost care. A carrier cannot be expected reliably to assess the structural condition of a construction road. For any damage to the gondola during the return transport from Australia to Hamburg, the defendant is only liable within the framework of the maximum limits under sea freight law. There is no evidence whatsoever that suggests that the defendant itself was at fault.

The Regional Court held that the defendant was liable for damages to the plaintiff within the framework of the statutory maximum amounts (§§ 429 ff HGB [Commercial Code], § 660 HGB). In response to the plaintiff's appeal, the appellate Court ruled that the defendant was unrestrictedly liable for damages incurred to the gondola during sea transport. The appellate Court approved te defendant's revision and the plaintiff's follow-up. The defendant seeks to restore the Regional Court judgment with regard to the damage caused during sea transport. With its follow-up revision, the plaintiff is pursuing its request for the defendant to be held liable for unlimited liability for the damage caused during the overland transport.

Held: The defendant's revision and the plaintiff's subsequent revision against the judgment of the 2nd Civil Senate of the Hanseatic Higher Regional Court in Bremen on 2 November 2006 are rejected.

The appellate Court correctly found that the defendant is liable for (the further) damage to the gondola incurred during the sea transport from Australia to Hamburg according to §§ 459, 452a, 606 HGB.

The Court of Appeal rightly found that German substantive law applies to the contract concluded between AW and the defendant for the return transport of the gondola from Australia to Denmark in accordance with § 28(4) EGBGB [Private International Law Act]. According to this provision, a transport contract has the closest ties with the State in which the carrier has its main place of business at the time of the conclusion of the contract, provided that the place of loading, unloading or the main place of business of the sender is also in this State, and it does not emerge from the totality of the circumstances that the contract has closer ties with another State (§ 28(5) EGBGB). This also applies to multimodal freight contracts under § 452 HGB (BGH, ruling of 29 June 2006 - I ZR 168/03, TranspR 2006, 466, 467; ruling of 25 October 2007 - I ZR 151/04,TranspR 2008, 210). Since AW and the defendant both have their main branches in Germany, the requirements of § 28(4)(1) EGBGB are met. There is also 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 transport damage incurred during the sea transport from Australia to Hamburg should be assessed according to the provisions on carrier liability in §§ 556 ff HGB. According to the findings of the Regional Court referred to by the Court of Appeal, AW and the defendant had concluded a multimodal transport contract for the return transport of the gondola in accordance with §§ 452a, 459 HGB. The freight forwarding service, which was standardised as such, was based on carriage by various modes of transport (ship, truck). 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 gondola by ship from Australia to Hamburg would have been assessed according to §§ 556ff HGB. For the transport of the gondola from Hamburg to Denmark by truck, the provisions of the CMR would apply. If the service of a fixed-cost freight forwarder is aimed at arranging such multimodal transport, § 452 HGB applies.

According to § 452 HGB, even if part of the transport is carried out by sea, the provisions of §§ 407 ff HGB are only to be applied uniformly to the entire transport service if nothing else results from international Conventions or the special provisions of §§ 452a ff HGB. International Conventions do not apply in the event of a dispute. However, application of different legal provisions for individual sections of the transport results from § 452a HGB. According to this provision, liability for multimodal transport is determined by the law of a section of the route if it is certain that the damage has occurred on this section, ie the cause of the damage was based on it. Based on the findings of the Court of Appeal, which remained unaffected, there was further material damage to the gondola on the sea route from Australia to Hamburg, beyond the damage already caused during land transport.

Pursuant to § 452a HGB, the carrier's liability is governed by the law that would apply to a hypothetical contract for carriage on the section on which the damage occurred. The finding of the Court of Appeal that the (hypothetical) partial route contract is also subject to German law is free of legal errors. The application of German law follows from the fact that both AW and the defendant must have based their contractual relationship on German law in this respect (BGH, judgment of 18 October 2007 - I ZR 138/04, TranspR 2007, 472; OLG Dresden TranspR 2002, 246). Both have their main offices in the Federal Republic of Germany and there is nothing to suggest that the hypothetical partial route contract in question has closer links with another State (§ 28(4)(1)(5) EGBGB).

Since the further transport damage occurred on the sea route from Australia to Hamburg and German law applies to the hypothetical leg contract between AW and the defendant, the defendant's liability is based on §§ 556 ff HGB. As a (hypothetical) carrier, the defendant is liable according to § 606 HGB for the damage caused by loss of or damage to the goods in the period from acceptance to delivery, unless the loss or damage is based on circumstances that could not be averted with the care of an appropriate carrier. In accordance with § 607(1) HGB, the carrier is responsible for the fault of 'its people' and the ship's crew to the same extent as its own fault. According to the findings of the appellate Court, the already damaged nacelle and transport frame overturned during the sea transport and suffered additional damage. The defendant, burdened in this respect, has not submitted anything to the effect that it is not responsible for the damageunder § 606 HGB. It has only challenged unlimited liability for damage caused during sea transport.

The appeal against the finding of the appellate Court that the defendant was denied to invoke limitation of liability under § 660(1)(1) HGB according to § 660(3) HGB because the damage to the goods was caused by a qualified fault of the defendant, remains unsuccessful. The extent of the compensation to be paid by a carrier is determined according to § 249 BGB [Civil Code]. The compensation to be calculated according to § 249 BGB is limited by the regulations in § 660(1)(1) HGB. According to § 660(3) HGB the carrier loses its right to limitation of liability if the damage is due to an act or omission by the carrier that intends to cause damage, or is reckless and committed with the knowledge that damage is likely to occur. According to the wording of § 660(3) HGB, which refers only to the 'carrier' and not also - as in § 435 HGB - those parties mentioned in § 428 HGB, the appellate Court rightly found that only qualified negligence on the part of the carrier itself leads to the loss of limitation of liability according to § 660(1) HGB (BGH, ruling of 18 June 2009 - I ZR 140/06 (CMI1091)).

The appellate Court found that the defendant could not rely on limitation of liability according to § 660(1) HGB because it did not comply with the secondary burden of proof incumbent on it, and therefore it was to be concluded that the damage to the gondola was caused by qualified fault under § 660(3) HGB. This conclusion was based on the fact that the principles developed for land transport regarding the secondary burden of disclosure on the carrier also apply in principle to sea transport. The general principles for the secondary burden of proof of the freight forwarder/carrier were developed for cases of loss, and can only be transferred to cases of damage with restrictions. In principle, the burden of presentation and proof remains with the plaintiff to show whether the carrier is at fault for its organisation. A deviation from this principle only applies if the damage to the cargo is due to insufficient securing of the cargo. The freight forwarder/carrier then has to bear the burden of presentation and proof with regard to its scope of operations if, according to the facts presented, the damage is due to a qualified fault on the part of the freight forwarder/carrier, according to §487d HGB by analogy.

It is essentially clear how the gondola was damaged during sea transport. The photos submitted show that the gondola, including the transport frame, tipped over during the sea transport. The ship's report shows that the incident at issue took place on 5 December 2001 at around 08h00. According to the report, the damage was caused by a 'failure to meet quality requirements'. The reason given in the ship's report was that the weight of the gondola was incorrectly found to be too low (15 tons instead of 56 tons). The wrong weight was noted in the stowage plan or in the ship loading plan. In the bill of lading, however, the shipping company stated a weight of 49 tons for the gondola. Taking these circumstances into account, it is clear that the damage that occurred during the sea transport was due to incorrect lashing or insufficient load securing. Accordingly, the defendant has to present in good faith - as far as is possible and reasonable - the detailed circumstances of its operational scope, due to the different levels of information of the contracting parties.

The defendant did not comply with this secondary burden of proof. It remained completely unclear why an incorrect weight was included in the stowage plan or ship loading plan. The numbers 15 and 56 were not mentioned in the bill of lading. Likewise, the defendant did not explain the form in which it had concluded the return transport contracts. In addition, it is not clear how the defendant ensured that its instructions - if it issued any - would also be observed. There is, then, a presumption for the existence of qualified fault. According to § 660(3) HGB read with § 487d(1) HGB, qualified fault is based on the defendant's organs - that is, its managing director(s).

The appellate Court correctly found that this principle also applies within the framework of § 660(3) HGB. The prerequisite for this is that the plaintiff provides evidence of the existence of qualified fault, which can arise in particular from the type and extent of the damage. In this case, the carrier has to explain in a substantiated manner which obvious damage prevention measures it has taken, in so far as can be expected in the specific case (BGH, judgment of 8 May 2002 - I ZR 34/00, TranspR 2002, 408, 409). If it does not meet its secondary burden of proof to the necessary extent, a rebuttable factual presumption speaks for the fact that it is at fault in an objective and subjective respect (BGH, ruling of 9 October 2003 - I ZR 275/00, TranspR 2004, 175, 176; judgment of 4 March 2004 - I ZR 200/01, TranspR 2004, 460, 462).

The defendant's further ground of appeal, that the appeal judgment did not reveal that the defendant was personally responsible for the loading errors found, or - since the defendant is a legal entity - its managing director, remains unsuccessful. The Court of Appeal clearly did not see the defendant's qualified fault in the inadequate cargo securing as such. Rather, it found that the defendant was at fault organisationally because the defendant had not presented the details of its operations. It is therefore not important that the defendant did not secure the cargo itself. Rather, what matters is that it should have stated which instructions it had issued with regard to cargo securing and how it had monitored compliance with them. It has also not been clarified why an incorrect weight - 15 tons - was included in the stowage plan or ship loading plan. The defendant should have explained in detail.

If a ship leaves port with insufficiently secured cargo, this prima facie indicates gross organisational fault (cf BGH TranspR 2002, 408, 409). The defendant must therefore state in detail what it has done to avoid the specific damage that has occurred. This also includes the presentation of what organisational measures the defendant itself, or the organs acting on its behalf, have taken to prevent loading errors of the kind determined by the appellate Court. If the carrier does not comply with the burden of proof incumbent on it - as in this case - the presumption of gross organisational fault also extends to the conduct of its organs.