The claimant sought damages for misdelivery of cargo. The claimant, a Romanian company trading in wood, handed over a cargo of wood stored in 10 40' high cube containers to the defendant shipping company for transport to a South Korean receiver. The sales contract between the claimant and the receiver incorporated CFR Incoterms 2010 and provided for 'cash against documents', with an advance payment of 30% of the value of the goods. The total amount owed to the claimant was USD 130,000 (USD 260 per m³ of wood).

On 10 September 2018, the claimant requested the original bills of lading from the defendant's agent. The receiver was specified as the consignee of the goods in the bills of lading. The claimant received the bills of lading on 11 September 2018. On 20 September 2018, the claimant sent the bills of lading back to the defendant's agent and ordered the defendant's agent not to release the goods to the receiver, but to wait for further instructions or a telex release. The defendant’s agent confirmed receipt of the bills of lading on 21 September 2018.

The containers arrived in South Korea on 26 September 2018 and were stored in the port, thereby accruing costs for demurrage and detention. On 17 October 2018, the defendant's agent informed the claimant that one of the containers had been collected by the receiver on 16 October 2018. At that time, the goods had not been released by the claimant. The claimant and the receiver subsequently agreed to delivery of the remaining nine containers against payment of a reduced price.

The claimant sought damages under the bill of lading and the contract of carriage. The claimant argued that the Korean receiver had already made several attempts to raise issues during the transport as a pretext for reducing the price. The claimant therefore considered delivering the goods to an alternative receiver or rerouting them. For this reason, the straight bills of lading containing the receiver's details were sent back to the defendant. The receiver continued its behaviour after the arrival of the goods, and falsely alleged that the goods were infested with insects and would need to be fumigated. By releasing one container to the receiver without any authority, the defendant enabled the receiver to inspect the goods and raise different subjective grounds in order to demand, and eventually receive, the highest possible discount with regards to the 10 containers. According to the applicable Korean customs law, issuing a delivery order and handing over even just one of the containers stated in the bill of lading would be deemed as transfer of ownership in respect of the goods. Accordingly, the claimant would have needed a letter of rejection from the receiver, or its consent to collect the goods from the port and redirect them to a different destination.

The claimant argued that it could therefore not dispose of the goods without the co-operation of the unlawful receiver. This was also confirmed by the defendant's agent on 18 October 2018. This gave the receiver bargaining power and put it in a position to propose the following alternative solutions to the claimant in an email dated 17 October 2018:

1. Total ship back to you while repayment of the 30% advance payment.

2. Partial collection of 4 containers at revised price down to USD180/M3. Remaining 6 containers are to ship back.

3. Total collection of 10 containers at revised price down to USD 180/M3. Calculations are from trimming cost of USD40/M3 + cut loss from 95mm to 80mm.

4. New orders are to be discussed later after fixing this matter.

The claimant argued that it had no choice but to accept the third option and, thus, a significant price reduction.

Based on the above, the claimant argued that it had a claim for damages, not only for the value of the goods stored in the released container (USD 13,000), but also for compensation for the whole amount of the price reduction, as well as demurrage and detention costs for all ten containers, in total USD 46,693.49.

The defendant argued that the claimant subsequently consented to the disputed delivery of the first container by instructing the defendant to release the remaining nine containers. If the claimant had to agree to a reduced price due to the condition of the goods, this was not the defendant's responsibility. Furthermore, the defendant argued that - even if the container had been wrongfully released - damages would need to be capped at USD 13,000 (the value of the goods contained in the initially released container).

Held: Claim dismissed.

As far as the claim for damages due to wrongful delivery under the bill of lading - based on § 521(4) HGB (German Commercial Code) - is concerned, all potential claims must be rejected once the delivery to the recipient has been approved: see Ramming, RdTW 2015, 85. Ramming convincingly states that after delivery of the consignment to a non-authorised person, the authorisation by the authorised person leads to the delivery having a subsequent exempting effect. This also meant that the claims of the beneficiary from §§ 498 ff HGB due to loss of the goods and § 521(4) HGB no longer apply. [Section 521(4) HGB provides that '[i]f the carrier delivers the goods to someone other than the legitimate owner of the bill of lading or, in the case of paragraph 2 sentence 2, to someone other than the person entitled under the bill of lading, he shall be liable for the damage suffered by the person entitled under the bill of lading. Liability is limited to the amount that would have to be paid if the goods were lost.]

The Court further dismissed the claim for breach of ancillary duties under the contract of carriage, and denied damages based on § 280 BGB (German Civil Code). The Court noted that the claimant’s argument regarding the required co-operation of the receiver under Korean customs law was in dispute between the parties. These arguments were raised in a submission which the claimant made after the oral hearing. The defendant could, therefore, not comment on the allegations. But even if the receiver's co-operation would have been required to dispose of the cargo, this would not give grounds for damages. The claimant could not prove that the (wrongful) receiver denied its co-operation. Since the receiver had no right to the goods, it would have been obligated to return the cargo. The claimant could not show that it requested the receiver's co-operation. Rather, the claimant contradicted itself by submitting the email (allegedly) sent by the receiver to the claimant in which the receiver proposed different alternative options. In the Court's opinion, the email contradicts the claimant's arguments that the receiver pressured the claimant to deliver all 10 containers against payment of a significantly reduced price. Due to this contradiction, the claimant's assertions cannot form a basis for the judgment. Since - for this reason - there is no basis for a claim for damages, the difference between the initial price and the discounted price cannot be attributed to the defendant.

Regardless of the above, it is not apparent that the claimant suffered damage in the amount of the difference between the initial price and the discounted price. The claimant could not prove that it could have sold the goods to another party for the full initial price. This would have been necessary for the loss to be admissible as damage. Pursuant to § 252 BGB, loss of profit only counts as damage if such profit could have been realised with a certain likelihood in the ordinary course of events, or taking into consideration the special circumstances of the case. There is no information on another Korean buyer that would have required exactly the type and amount of goods in question. It is also not apparent that a rerouting of the goods would have compensated for the price difference. In this scenario, the expected additional costs would need to be taken into consideration.

Moreover, it cannot be assumed that, but for the wrongful delivery, the receiver would have accepted the full amount of cargo and paid the full initial price. The claimant itself submitted that the receiver had not remained faithful to the contract and its contractual obligations.