The first defendant purchased advertising materials from Chinese seller A in 2015 at a price of USD 135,780.75. The parties agreed on FOB Shanghai terms. The first defendant did not pay A.

The first defendant commissioned X with the transport of the materials from Ningbo, China, to Hamburg, Germany, and from there to the first defendant's customers located in Poland and the Czech Republic, including formalities for customs clearance. X in turn engaged the Chinese freight forwarder Y for the carriage by sea from Ningbo to Hamburg. Y issued two bills of lading dated 23 March and 25 May 2015 as 'Carrier', in which A was named as 'Shipper' and the first defendant as 'Consignee'. Y itself engaged Evergreen and Maersk for the sea transport. Evergreen and Maersk issued corresponding sea waybills in which Y was named as 'Shipper' and X as 'Consignee'. The first defendant paid for the transport as invoiced by X.

Contrary to X’s instructions, the first defendant did not present the original bills of lading. Instead, it provided X with a letter of indemnity (LOI). X surrendered the goods and they were delivered to the first defendant's customers.

A successfully sued Y before the Shanghai Maritime Court for damages, because Y had delivered the cargo without presentation of the bill of lading. Y sought recourse from X. X reimbursed Y as requested, without further examination. X claimed compensation from the first defendant for this amount. After the plaintiff, X's insurer, reimbursed X, it was assigned X's claims against the first defendant.

At first instance, the plaintiff argued that the first defendant had affirmed the claims in dispute by its declarations of receipt of the goods. The defendants had, further, most recently shown a willingness to negotiate in its letter of 13 December 2016, so that the limitation period for the claim had been suspended until the action was brought.

The defendants argued, among other things, that pursuant to ss 463 and 439(1) of the German Commercial Code (HGB), the latter of which gives domestic effect in Germany to art 3.6 of the Hague-Visby Rules, a limitation period of one year applied, so that the claims became time-barred at the latest on 3 July 2016 - one year after delivery of the last goods to the first defendant's customers.

By judgment of 10 August 2018, the Regional Court found for the plaintiff. The Regional Court held that the claim was not time-barred, and that there was no defence to the claim. According to the Regional Court it was questionable whether section 439(1) HGB applied, since the declarations of receipt of the goods were considered independent indemnity agreements in favour of X.

The defendants appealed.

Held: The appeal is admissible and well-founded.

The plaintiff is not entitled to claim against the defendants under X's assigned rights. In particular, such a claim - contrary to the view of the Regional Court - does not arise from the indemnity agreements made in cl 1 of the declarations of receipt of 23 April and 21 June 2015.

German law is applicable to the bills of lading in dispute, because the designated destination was Hamburg in Germany. Pursuant to s 521(4) HGB, the carrier who delivers the goods to someone other than the legitimate owner of the bill of lading (s 519(3) HGB) is liable for the damage caused to the party entitled under the bill of lading. In this case, the carrier within the meaning of s 521(4) HGB was not X, but Y. The bills of lading in dispute acted as security for the delivery claim arising out of the fixed cost forwarding contract concluded between X as shipper and Y as carrier, with seller A named as Ablader (s 513(2) HGB: The 'Ablader' shall be defined as the party which delivers the goods to the carrier for carriage and which has been designated as Ablader by the shipper so as to be recorded as such in the bill of lading. If a party other than the Ablader delivers the goods for carriage, or if no party has been designated as Ablader, then the shipper shall be deemed to be the Ablader). Y should therefore not have delivered the goods to X without presenting the bills of lading. Due to the function of the bills of lading (s 519 HGB), further contractual delivery claims of X were barred, since the bills of lading covered the forwarding contract in this respect. On the other hand, X is not liable under s 521(4) HGB because X did not issue a bill of lading as a carrier. Liability under s 521(4) HGB is also not possible, since X was even not the performing carrier in relation to Y.

Other bases for claims against X due to the release of the goods to the first defendant despite the lack of the bills of lading are unfounded. In so far as the plaintiff argued that Y instructed X to make the delivery only on presentation of the bills of lading, this could not help its action to succeed. Since X was not involved in the bill of lading relationship as a carrier, it did not have any right to issue instructions. Furthermore, such a right did not arise from the forwarding contract concluded between Y and X. X as the consignor was merely entitled to instruct Y, not vice versa. Even an agreement to such an instruction (which did not exist in the case) would have been deemed insufficient, because the duty to surrender arising from the forwarding contract was not restricted by the fact that the forwarder agreed with a third party, without the consignor's consent, to surrender the goods only under certain conditions. Further, the fact that Y acted as the local agent of X was deemed irrelevant. The only decisive factor was that Y issued the bills of lading to A . These bills of lading formed the exclusive legal basis for the claim.

As X was not the carrier under the bills of lading, the question of the time bar under the Hague-Visby Rules was not relevant.