In the judgment under appeal, the Hamburg Regional Court ordered the defendant to pay EUR 21,536.90 plus interest and otherwise dismissed the claim. The defendant requests partial amendment to the judgment and to dismiss the action as a whole. The applicant requests that the appeal be dismissed.

Held: The appeal is admissible but only partially justified. The Court follows the Regional Court in that the defendant is fundamentally liable for the damage claimed. The liability is limited according to §§ 659, 660 HGB [Commercial Code].

A freight contract and not a forwarding contract has been concluded between the parties. The plaintiff submitted in the first instance that its policyholder had commissioned the defendant 'at fixed costs with the provision of a container and the collection and delivery of the shipment in Salzbergen'. In contrast, the defendant submitted in the first instance that the policyholder had commissioned the defendant to 'arrange container transport'. In the offer made by the defendant, the latter does not expressly appear as a 'forwarding agent', but rather has the addition 'logistics & service'. The offer speaks of 'sea freight', which speaks in favour of classifying the contract as a freight contract. If it says there: 'Shipping is primarily with Mitsui and Hanjin shipping companies', this does not speak against a freight contract, because this statement is compatible with the defendant's use of shipping companies as subcontractors. The 'legal basis' mentioned in the offer speaks neither for nor against a freight contract. The issue of a separate bill of lading speaks for the existence of a freight contract. The bill of lading was issued by the Philippines sister company of the defendant, but it is undisputedly for the defendant.

It is a multimodal contract because the defendant was responsible for the sea transport from Manila to Rotterdam and for the subsequent land transport to Salzbergen.

German law is applicable because both contracting parties (policyholder and defendant) are based in Germany and the goods were to be delivered in Germany (cf § 28(4) EGBGB [Private International Law Act] old version).

However, according to the evidence, no-fault liability can be affirmed. At this point it does not matter whether general transport law or maritime transport law is applicable. There would be no-fault liability for damage to the transported goods under both § 425(1) HGB and § 606 HGB, which would only arise with the takeover or acceptance of the goods. The defendant (or the shipping company engaged by it) did not take over the goods until the container was loaded onto the ship in Manila. It was not responsible for the advance transport to the port of Manila. In this respect, the defendant's offer to the policyholder is clear. It is about the 'sea freight' from 'FOB shipping port to CFR North Sea port' and then further 'from CFR to free house'. The pre-carriage (transport to the port of shipment in Manila) is clearly not included in the offer and is also not billed. It is not clear who has commissioned whom with the preliminary transport to Manila. There is a lot to be said for the theory that the Philippines subsidiary of the policyholder (the shipper) commissioned the Philippines sister company of the defendant in its own name with the transport to Manila. Ultimately, this can be left to one side. In any case, there are no indications that the defendant was commissioned with this. In so far as the plaintiff refers to the existence of a 'routeing order', what the plaintiff understands by this term - which is not defined by law - is unspecified. However, the contract documents (ie in particular the defendant's written offer to the policyholder) are unambiguous and are not called into question by the reference to a 'routeing order'.

It is not certain that the damage only occurred after handover/acceptance of the goods, ie only after loading onto the ship in Manila. The defendant claims that the damage occurred before the takeover (on the ship in Manila) because the paint had already evaporated in the container for one day and could spread to the textiles. The plaintiff denies this, but bears the burden of proof that the damage only occurred after handover/acceptance (ie during the custody period). Clarification through an expert report would be conceivable. However, this can be waived because the defendant is liable for other reasons (even if the amount is limited by §§ 659, 660 HGB).

As to the question of limitation of liability according to §§ 659, 660 HGB, it does not matter exactly when the damage occurred. This limitation of liability would also apply if it should emerge that the defendant would be liable for damage that occurred after taking custody. The only dispute between the parties is whether the damage occurred during the 'pre-run' (transport to Manila) or on the ship (during the transport from Manila to Rotterdam). The possibility that the damage only occurred after the sea transport was completed by land (Rotterdam to Salzbergen) is remote because of the length of the sea voyage, and this not alleged by either party.

The plaintiff's claim can in any case be based on the fact that the defendant violated an ancillary obligation before accepting/taking over the goods. According to § 280 BGB [Civil Code], it is therefore liable for the damage incurred. The provision of a container suitable for transport falls within the responsibility of the defendant. However, this does not only follow from the fact that this container was required for sea transport. The defendant rightly points out that the goods had to be packed in the container before the sea transport began and that the container was also necessary for the transport to the ship.

The responsibility of the defendant arises from other considerations. It is common practice that a shipping company commissioned (only) with sea transport, which is regularly in possession of many containers, provides the shipper (who often does not have a container) with a container when booking cargo space. This happens regardless of who has to do the 'preliminary run'. If necessary, it is up to the freight forwarder to collect the container, stuff it and bring it to the ship. However, this does not change the fact that the mere provision of the container is a service of the shipping company (the carrier). It does not matter whether a separate fee is required for this (it may also be included in the general sea freight; a separate remuneration is then only required in the event of delayed return or detention). Here it is undisputed that the container was provided by the shipping company commissioned by the defendant.

If a freight broker calls up a container from a shipping company when concluding a sea transport contract and the shipping company makes a container available, this is an (implicitly) agreed ancillary service to the sea transport contract. The shipping company/carrier is responsible for the proper fulfilment of this secondary obligation. In the present case, no sea transport contract was concluded between the policyholder and the shipping company, but between the policyholder and the defendant (as part of the multimodal transport order). The shipping company was engaged by the defendant as a subcontractor. But that does not change the fact that the ancillary service is to be assigned to the sea transport. The defendant has been commissioned by the policyholder to carry out the sea transport.

If a carrier assumes the secondary obligation to provide a container, it must ensure that the container is in a condition suitable for contractual use. If the container has defects, the carrier is liable for breach of this secondary obligation under the freight contract. In this case, the containers were not suitable for the transport of clothing because of the fresh and evaporating paint. In so far as the defendant submitted at the hearing that the shipping company could not have known what was to be transported in the container, and that it was a matter for the Philippines subsidiary of the policyholder (or the transport company commissioned by it) to choose a suitable container, this does not mean that liability is no longer applicable. The transport of textiles is quite common. A carrier must expect that textiles are to be transported in a container provided by it. It must perhaps provide appropriate instructions that only odour-resistant goods may be transported in the container. In the present case, the decisive factor is that the contracting party was the defendant itself. This party has concluded a transport contract with the policyholder. The fact that the policyholder wants to have textiles transported, in case of doubt, is evident from its name ('Fashion'). The mention of 'hanging equipment' in the defendant's offer also indicates that the defendant was well aware of what type of goods the policyholder is trading in, and what type of goods they want to have transported. It would then have been up to the defendant to inform its sub-carrier (the shipping company) of this.

A claim for damages according to § 280 BGB is only available in case of negligence. According to § 278 BGB, the defendant must be responsible for the fault of vicarious agents. Here the shipping company engaged by the defendant is the subcontractor and thus vicarious agent. In case of doubt, the shipping company arranged for the container to be painted itself. In any case, it could have recognised that the container that it had provided was unsuitable for the transport of textiles.

The claim for damages of the claimant is limited according to §§ 659, 660 HBG. The regulations of §§ 659, 660 HGB are generally applicable when it comes to liability for damage to goods. Whether the liability is based on § 606 HGB (no-fault liability during the custody period), or on culpable breach of an ancillary obligation, is irrelevant, since according to § 607a HGB it does not depend on which legal basis the claim is based. In the present case, the damage to the transported goods is at stake.

According to § 660 HGB, the carrier is liable up to a maximum of 666.67 Special Drawing Rights (SDRs) for the package or unit or an amount of 2 SDRs per kilogram of the gross weight of the damaged goods, whichever is higher. In this case, the limitation of liability only has an effect on the first case of damage. The subject of the legal dispute in the appeal is container MOAU 077999-0. The bill of lading shows that there was the number 7 in the 'Pcks' column. In the following text there is talk of 7 trolleys with 3,204 pieces (Pcs) of trousers; Weight 2,547 kg. If one focuses on 'package' or 'unit' in the sense of § 660 HGB, the Court finds that it is decisive that 7 trolleys were transported. It is irrelevant that there were 3,204 trousers in the trolleys.

The regulation of § 660 HGB is based on the new version of art 4.5 of the Hague Rules introduced through art 2 of the Visby Rules. Both the Hague Rules and the Visby Rules speak of 'colis ou unité' in the French text and of 'package or unit' in the English text. When interpreting what is to be understood by 'piece' ['Stück'] in § 660 HGB, it is what is meant by 'colis' or 'package'. The French term 'colis' corresponds most closely in German to 'freight piece', 'baggage', 'Kollo', 'package' or 'parcel', with 'parcel' being the most common translation. In § 660 HGB old version, 'colis' was translated as 'packing' ['Packung']. In any event, if the transported goods are actually packed, the Court finds that the type of 'packing' must be used, in this case the trolleys. This is also supported by the fact that the bill of lading expressly provides a 'Pcks' column and is filled with the number '7'. The 7 trolleys are decisive for how many 'pieces' in the sense of § 660 HGB have been transported in the container. This finding does not contradict the decision of this Court of 15 October 1992 (TranspR 1992, 111), in which unpackaged halves of pork were viewed as 'units' within the meaning of § 660 HGB. The peculiarity of the case decided at the time was that the pork halves were unpacked and had to be transported individually. Here, however, the men's trousers were grouped together as 'packs' for transport purposes in trolleys. It does not matter that the men's trousers are sold individually and piece by piece. The decisive factors are the conditions during the transport and what is usually shipped individually. When interpreting the term 'unit', which poses similar problems, a 'freight-based approach' is used.

The maximum liability limit based on the number of items is 7 x 666.67 SDRs = 4,666.69 SDRs. The maximum liability limit based on the weight is 5,094 SDRs at 2,547 kg. Since this is the higher amount, it is also the amount relevant for liability.

In the second case of damage (container MOAU 672034-6), the bill of lading specifies 279 cartons, so that the maximum liability amount based on the number of items is 279 x 666.67 = 186,000.93 SDRs. The damage claimed is significantly lower, so that § 660 HGB does not limit liability.

The plaintiff's claim is not reduced due to possible contributory negligence on the part of the policyholder (or the vicarious agents engaged by it). It is disputed whether the employees of the subsidiary of the policyholder could have seen before the goods were loaded that the paint was exposed. The Court considers this to be entirely conceivable. However, a final assessment is not possible after the submissions of the parties. As to the extent to which the paint was already visible when the container was loaded, one can only speculate. What was previously transported in the container, how long it was open, what effect the weather conditions (heat, humidity) had on the extent of the paint evaporation, and much more, might play a role here. The defendant did not provide any evidence for its assertion that the odour was already detectable when the container was loaded. At most, a clarification through an expert report would be conceivable (albeit with a very uncertain prospect of success). However, after discussing this question, the defendant expressly stated that such an expert opinion should not be obtained. The defendant is required to provide evidence of any contributory negligence.