The plaintiff insurer asserted a subrogated claim against the defendant for damage of cargo caused during multimodal transport from Germany to Japan, as well as expert report costs.

Company S commissioned the defendant to carry five containers from Germany to a port in Japan at a fixed cost of EUR 11,856.87. The containers arrived in Japan on 30 August 2018 and received customs clearance on 31 August 2018. On 4 September 2018, typhoon Jebi hit Japan. The port was also affected by a tidal wave. At that time, four of the containers were still in the container yard at the Japanese port. An expert report was commissioned to investigate possible moisture damage. According to the report, the damage to the cargo in two of the four containers amounted to EUR 48,940.70.

The plaintiff argued that the defendant took over the goods in a complete and intact state, but did not deliver them to the consignee in that state. The transport documents constituted prima facie evidence for the delivery of undamaged and complete goods to the defendant.

The defendant denied that the goods were damaged by moisture while in the defendant's custody. The damage had already occurred before the defendant took over the cargo. Alternatively, the defendant denied liability even if the damage had occurred in the container terminal of the Japanese port. The period during which the four containers were in the container terminal after being unloaded from the ocean-going vessel could not be attributed to the defendant's period of liability, as the consignee had already collected and taken over the containers there. Furthermore, the defendant argued that typhoon Jebi was the strongest typhoon in 25 years, with gigantic tidal waves and wind speeds of up to 216 km/h, and thus constituted a peril of the sea according to s 499(1)(1) HGB (German Commercial Code), which corresponds to art 4.2.c of the Hague-Visby Rules. Based on this, the defendant denied liability. In the alternative, the defendant contested the amount of compensation owed to the plaintiff.

The plaintiff responded that the typhoon could not be considered an unusual weather event within the meaning of s 499 HGB, because typhoons hit the Japanese mainland several times a year. The defendant could have anticipated the weather incidents and water damage, and should have taken precautionary measures, such as storing the cargo on higher ground. The plaintiff argued that the defendant had four to five days to take these measures, but failed to do so.

Held: The appeal is admissible but unfounded. The plaintiff has the right to sue. However, the plaintiff's claim against the defendant is unsuccessful.

German maritime law applies according to s 452a HGB. This is because the defendant and S concluded a multimodal transport contract. If it is established in such a contractual relationship that the damage occurred on a particular transport segment, the carrier's liability is determined according to the legal provision that would be applicable to contract of carriage on that segment (s 452a sentence 1 HGB). Since the damage occurred during the sea segment, maritime law is applicable. The damage occurred in the container yard of the Japanese port. The storage of the goods in the container terminal of the port is to be attributed to the maritime transport within the meaning of section 452a HGB because it must be deemed an annex to the carriage by sea. The allocation to a certain segment is determined by customary practice. Storage in a port terminal is characteristic of maritime transport, and has a correspondingly close connection to the port (see also Supreme Court (BGH) NJW-RR 2006, 616 para 16). The requirements of s 498 HGB are satisfied. The moisture damage to goods in two of the four containers that were still being transported in the container yard of the Japanese port on 4 September 2018 occurred during the defendant's period of custody.

It must be assumed that the goods were in intact condition (ie without moisture damage) when they were loaded into the five containers. The defendant's submission denying this is unsubstantiated. As the damage was caused by sea water, it cannot have occurred during the onward transport in Japan. Accordingly, it must be assumed that the moisture damage to the goods in two of the containers occurred on 4 September 2018, when four of the five containers were still in the container yard in the Japanese port and typhoon Jebi caused a tidal wave that hit the port. At that time, the defendant's period of custody for which the defendant was responsible had not yet ended. Contrary to the defendant's contention, the period during which the four containers were in its custody after being unloaded from the vessel and still at the container yard must be attributed to the defendant's liability period.

The carrier’s period of custody terminates with the delivery of the goods according to s 498(1) HGB. Delivery is a bilateral act by which the carrier, with the consent of the legitimate consignee, relinquishes possession over the goods after completion of carriage and enables the consignee to exercise possession over the goods. Accordingly, the transfer of direct possession is not an absolute requirement for delivery. However, according to the Supreme Court, these requirements are generally not satisfied in cases where the cargo is merely unloaded, but rather when the cargo is loaded onto the subsequent transport means with which the cargo leaves the port (BGH, decision of 1 December 2016 - I ZR 128/15 (CMI1120)). Accordingly, in cases of containerised general cargo, the object of delivery is the loaded container as such when it is taken over by the consignee and transported on to the final destination to be unpacked. This is also supported by the consignee's obligation to report damage according to s 510 HGB. The consignee must report any apparent damage to the goods upon delivery. However, this is only possible if the consignee can actually inspect the goods. These requirements are not met in this case. The defendant did not relinquish its possession of the containers by storing them at the port's terminal. Rather, the terminal operator was acting as the defendant's agent. The container operations at the port were a service undertaken by the defendant for the plaintiff's policyholder, S.

However, the defendant is exonerated according to s 499(1) HGB, as the damage was caused by a peril of the sea. The existence of a peril of the sea may not be denied merely because the goods were already on land at the time of the damage. The storage in the container yard of the port is legally to be regarded as part of the maritime transport. In this respect, it is also referred to as the 'allonge [ie extension] of the ship' (see OLG Hamburg, decision of 4 May 2018 – 6 U 133/16, BeckRS 2017, 135077 para 41 (CMI250)). Perils are not considered to be perils of the sea that equally endanger goods on land, such as exposure to the sun or rain. However, such a peril is not relevant here. Rather, the flooding with salt water was a specific peril of the sea.

The concept of a maritime peril which exempts the carrier from liability is a complementary concept to the carrier's duty of care. The rule serves to distinguish perils that the carrier can be expected to control from perils that the carrier cannot reasonably be expected to control. Perils of the sea must be a situation against which the carrier was unable to protect itself even if it exercised due diligence. In this respect, neither the foreseeability nor the unusual nature of the dangerous situation is important. The only decisive factor is the scope of the duty to avert perils of the sea. If the precautionary measures required by a diligent and prudent carrier, in particular with regard to seaworthiness (s 485 HGB) and care for the cargo, prove to be exceeded by a concrete peril situation, the peril of the sea has reached a level that exempts the carrier from liability. Accordingly, the carrier is neither to blame for unseaworthiness nor the failure to care for the cargo. In such a situation the carrier is only liable if it could have prevented the damage, despite this degree of danger exceeding the required measures in the individual case (s 499(1) HGB). It is irrelevant whether typhoons occurring during shipments to the Far East were unusual or unforeseeable. It merely follows that the carrier was obliged to adjust to these circumstances within the scope of the carrier's duty to make the ship seaworthy.

Here, the question does not relate to a peril of the sea during the sea voyage, but rather when the goods were already on land in the container yard of the Japanese port. Moreover, typhoon Jebi already represented an exceptional, unforeseeable peril. It is true that typhoons hit the mainland of Japan several times a year, and that this had to be expected in general. However, the intensity of this typhoon far exceeded the usual level. It was the strongest typhoon to hit Japan within 25 years, and wind speeds of 216 km/h were reached. The concrete danger that the typhoon posed to the goods, namely the flooding of the container terminal, was also exceptional, and by no means an everyday occurrence.

In any case, neither the defendant nor the container terminal operator, acting as the defendant's agent, could protect themselves from this danger by exercising due diligence. More than the stacking of the containers carried out by the container terminal could not have been reasonably required by the carrier within the scope of due diligence. These proved to be too extensive, given the loading safety in the particular dangerous situation. The plaintiff did not submit that even if extensive measures had been carried out, the damage would have been prevented. The plaintiff's assumption that the defendant had a time window of four or five days to move the goods out of the dangerous area and/or store them higher up was unrealistic in view of the fact that some 10,000 containers were stored at the very same port which would also have had to be moved. The plaintiff did not submit that sufficient transport and storage capacity was available for such a transfer.