The plaintiff claimed compensation from the defendant for damage caused in transit during maritime transport, and sought a declaration of indemnity. The plaintiff, which was domiciled in England, manufactured mobile and telescopic cranes. In 2016, the plaintiff sold a telescopic mobile crane and accessories to SL Co Ltd. The agreement was on DAP terms. On 8 November 2016, the plaintiff placed a shipping order with the defendant - a storage and handling company - for the transport of the telescopic mobile crane. The following conditions were stated. Clause 3: 'The shipment is already booked as follows (shipping company H.G. Co. Ltd.): Vessel: MS G. C'. Clause 4: 'You shall ensure that the equipment(s) is/are loaded below deck or stowed in such a way that it/they is/are fully protected from seawater'.

On 26 December 2016, the crane was loaded and secured on deck 5 of the vessel by the defendant. The vessel left Hamburg the same day bound for Greece. In the German Bight, the cargo on the vessel shifted so badly in foul weather that the voyage could not be continued. The vessel anchored with a list of about 15°. After the vessel had been righted, it sailed to Belgium on 31 December 2016, where the cargo was discharged. By letter of 3 January 2017, the plaintiff held the defendant liable for the damage incurred during the sea transport. On 28 August 2018, the defendant waived the defence of limitation. The shipping company HG Co Ltd. subsequently declared general average. The plaintiff as cargo interest signed a general average bond, and the German branch of Z Insurance plc, the plaintiff's marine insurer, signed a corresponding guarantee on 31 January 2017. After the environmental authorities had declared the cargo on the vessel as waste due to contamination with hydraulic oil and had released the crane, the crane was taken for repair in August 2017. The initial damage amounted to EUR 512,472.60, and estimated transport costs to EUR 24,853.30.

The plaintiff submitted that it commissioned the defendant to transport the crane from Hamburg to Doha, together with port handling and cargo securing on the ship, at fixed costs. It claimed that the defendant commissioned HA AS for the sea transport, and that the existence of its instalment agreement with HA AS did not preclude an agreement for a transport to fixed costs. The plaintiff further stated that it commissioned the defendant with the booking of the sea freight at fixed costs. The defendant had in turn settled the entire costs of the transport with the plaintiff, and no order was given from the plaintiff to HA AS. The fact that the sea freight rates for future shipments had been negotiated in advance was common practice in international shipping without concrete shipping orders. Clause 3 of the order was merely worded in a misleading way; what was meant was that the booking had already been ordered in the previous email, namely the booking by the defendant. The bill of lading issued by HA AS did not have any preclusive effect either, as HA AS was a sub-carrier in relation to the defendant, while the bill of lading indicated the defendant as the main carrier. The damage had been caused by grossly negligent conduct on the part of the charterer commissioned by the defendant for the sea transport. The plaintiff stated that the master had not carried out a reliable and coherent stability calculation, and had not secured the cargo sufficiently, so that, in combination with the bad weather in the German Bight, there had been a considerable shifting of the cargo, which in turn had almost caused the ship to capsize. Based on the stability calculation, a larger number of cargo units with a lower total weight than shown in the final stowage plan was planned. The plaintiff disputed that the defendant had properly stowed and lashed the crane. The plaintiff deemed the submissions by the defendant insufficient since the evidence was issued by the master, who had not himself attended the lashing and was not an expert in load securing. Furthermore the plaintiff claimed that the defended violated its duty to load and stow the crane in such a way that it was fully protected from seawater. In fact, the crane had been extensively damaged by seawater entering the hold. After completion of the repair, the damage amounted to EUR 626,457.33. In addition, the costs of the experts would amount to EUR 7,941.45. The plaintiff sought a declaration of the amount of damage and indemnity from the claims arising from the declared general average.

The defendant argued that the declaratory action was not admissible because only the plaintiff's insurer was entitled to claim. The defendant stated that it had not been commissioned with the transport by sea, as was expressly stated in cl3 of the order. It further submittted that cl 3 referred to the plaintiff's instalment agreement with the shipping company. The defendant’s tasks had only consisted of reporting that the consignment was ready for dispatch to the intervening party, and the costs had only been passed on. The defendant had only been commissioned with the dispatch of the goods as a freight forwarder; fixed costs had not been agreed. Further, the defendant cast doubt of the plaintiff's right to bring an action under the bill of lading because it was the 'shipper' according to the bill of lading issued by HA AS, and therefore it alone was entitled to sue. In fact, the plaintiff was also asserting claims against HA AS and the P&I insurer of HA AS. Finally, the defendant disputed that the goods where handed over in an unharmed condition at the beginning of the transport. It also disputed the alleged damage, and that it occurred during the voyage. Any liability for unseaworthiness was also excluded. The goods on the ship - including the crane - had been sufficiently stowed and the weights properly distributed. The ship had listed because it had been caught in a storm in the German Bight with waves up to 12 m high. This was not foreseeable and could not have been avoided. Finally, any liability was limited to the equivalent of 2 SDR/kg consignment weight. In the alternative, the defendant applied for a set-off against the plaintiff's claim. The defendant also raised the defence of limitation. HA AS submitted, as intervening party, that the bad weather conditions where unforeseeable and that the lashing of the crane was sufficient.

Held: The plaintiff's claim is dismissed.

The plaintiff has no claim for damages against the defendant. A claim against the plaintiff does not arise from §§ 498, 501 HGB (which is similar to article 4 of the Hague-Visby Rules). According to this, the carrier is liable for damage caused by loss of or damage to the goods in the period from acceptance for carriage to delivery. However, the plaintiff has not sufficiently shown that the defendant is a carrier within the meaning of § 498 HGB. Pursuant to § 481 HGB (which is similar to art 1.a of the Hague-Visby Rules), a carrier is a person who undertakes to transport goods by sea to their destination and to deliver them to the consignee. The carrier does not have to be the owner of the ship, but may conclude contracts of carriage with a shipowner or another carrier. However, it does not follow from the order of 8 November 2016 that the defendant was a carrier in the sense that it undertook towards the plaintiff to transport the crane from Hamburg to Doha. Accordingly, the defendant was not commissioned to transport the crane, but instead a 'shipping order for transport' was issued. This is not to be interpreted as a contract of carriage in terms of which the defendant itself would have been obliged to transport the goods, but as a forwarding contract in terms of which the defendant was obliged to arrange for the dispatch of the goods: § 453 HGB.

The fact that the plaintiff itself did not understand the shipping order as a contract of carriage but as a contract of forwarding is also clear from letters in which it was pointed out that the defendant was liable as a fixed-cost forwarder. HA AS also argues that it a sub-carrier of the defendant as main carrier, but that the defendant is involved as a freight forwarder. The freight forwarder is only liable for damage caused to goods not in its care if it breaches its duties under § 454 HGB. However, the plaintiff has not shown such a breach of duty. In particular, it is not alleged that the defendant breached its duty to engage a reliable and efficient carrier. This company was specified by the plaintiff. The plaintiff has also not alleged any other breaches of the defendant's duties as a freight forwarder. The fact that the defendant was commissioned as a fixed-cost forwarder, so that the defendant would have the rights and obligations of a carrier according to § 495 HGB, is also not apparent from the plaintiff's submissions. A fixed cost agreement within the meaning of § 459 HGB exists if the consignor and the freight forwarder agree on a certain amount as remuneration, which includes the costs for the transport. The decisive factor is whether it is clear from the nature of the remuneration agreement that the forwarder is to carry out the carriage essentially on its own account and not for the account of the consignor. A strong, usually conclusive indication of a fixed cost agreement made from the outset is an invoice for a lump sum. In the present case, however, a lump sum including the costs of transport was neither agreed nor invoiced after the order was placed. The order rather breaks down the individual costs, mentions 'U's handling costs', and makes reference with regard to the sea freight to the instalment agreement between the plaintiff and the shipping company, which was stipulated with the shipping company H. Accordingly, the defendant also listed the individual costs in the invoice of 28 December 2016 and charged as sea freight to the plaintiff the costs that the plaintiff stated in the order. The quay handling agreement with the defendant also does not show that a fixed cost agreement including carriage was made. It is clear from this agreement that remuneration for individual services is agreed, which in turn are referred to in the order (U's handling costs; washing costs). The quay handling agreement does not contain any remuneration for the costs of transport. It only provides for a handling fee for FOB deliveries and the provision that this handling fee is not charged if U is also commissioned with the shipment. This is irrelevant here, because no FOB delivery has been agreed in this case. Moreover, the statement submitted does not refer to the transport charge itself. Therefore, the submitted agreement does not show any expressly quantified fixed prices.

There is also no claim which arises from §§ 461(2), 454 HGB or § 280 BGB in connection with a breach of non-freight forwarding duties that have a causal link to the damage. According to cl 4 of the contract, the defendant assumed the duty to ensure that the cargo was loaded 'or' stowed below deck in such a way that there was complete protection from seawater. The defendant submitted a certificate of lashing/securing service, in which the master confirmed that the securing had been properly carried out under the supervision of the ship's chief officer. The plaintiff does not explain how this confirmation is supposed to be incorrect in terms of content, and which omissions the defendant is accused of that caused damage to the crane. There is nothing to show this from the expert reports submitted. In particular, the expert report by B & TGM GmbH, whose experts inspected the crane while it was still on deck 5 on 5 January 2017, does not make any findings regarding the securing of the load, or the inadequate securing of the load. The plaintiff does not refer precisely to cl 4 of the order in its pleading. It is not stated there that the defendant was obliged to load and stow the crane 'below deck in such a way that there is complete protection against seawater', but that the equipment 'is/will be loaded below deck or stowed in such a way that there is complete protection against seawater'. The 'or' can only be understood to mean that full protection against seawater is to be provided if the equipment is not loaded completely below deck and must therefore be protected against seawater. It does not follow from this that further protection against unplanned ingress of seawater must be provided if the equipment is loaded below deck.