5 March 2008
If under multimodal contracts of carriage goods are damaged during transport it is of importance to prove where the damage occurred to determine which limitations of liability apply to the case. The German Federal Supreme Court (BGH) recently rendered a judgement on this question.
What happened
In that case cargo insurers of a German exporter as plaintiffs sued the carrier who had been instructed by the insured to transport printing machines from Bremerhaven/Germany to Durham/North Carolina via Portsmouth/Virginia. During the ocean carriage from Bremerhaven to Portsmouth two crates of the consignment had been stowed on a mafi-trailer. After arrival in Portsmouth the mafi-trailer with the crates had been trucked for 300 metres out of the vessel into a warehouse to be loaded on a truck for the further road transportation.
After the chains securing the crates had been tackled and loading of one of the crates the mafi-trailer had been moved again to bring it into a better position for loading the second crate onto the truck. During that process the second crate fell off the mafi-trailer and was damaged.
Plaintiffs argued that the legal provisions for road transports should apply and consequently defendants should only be allowed to a limitation of liability of 8.33 SDR per kilogram which would cover damages completely. Defendants argued that at the time of the damage the ocean carriage had not yet ended and therefore their liability should according to German maritime law be limited to 2 SDR per kilogram.
Court's decision
The BGH decided that the damage occurred during a road transport and therefore the carrier's liability was limited to 8.33 SDR per kilogram according to sec 431 of the German Commercial Code (HGB).
However, the court points out that the trucking of the mafi-trailer out of the vessel and into the warehouse does not constitute a separate road leg of the multimodal transportation but would be a dependent annex of the ocean carriage. That had been clarified in an earlier decision of the BGH.
Unlike in the earlier case here the goods had been damaged not during the trucking of the mafi-trailer but during the process of loading the goods from the mafi-trailer onto the truck. That process of loading was considered as part of the following road transport.
BGH, Judgement of 18 October 2007 - I ZR 138/04
Earlier decision
In its earlier decision the BGH laid out that the ocean carriage would only end with the loading of the goods onto the next means of transportation by which it would leave the port.
The reasoning for this was that the cargo handling in the terminal area is closely connected to and characteristic for the ocean carriage. A survey of the container and an assessment of eventual damages would regularly take place only after delivery to the consignee. At that time it mostly could not be determined anymore whether the damage occurred whilst the goods were on board the vessel or whilst handled in the terminal. Further the ocean carrier was obliged to deliver the goods to the consignee only and therefore the ocean carriage could not end before such delivery.
According to the BGH this may not apply if special circumstances are given.
BGH, Judgement of 3 November 2005 - I ZR 325/02
Comment
The second decision of the BGH now clarifies where the end of the ocean carriage could be. The process of loading the goods onto the truck by which the goods leave the dockside is considered as part of the following leg of the multimodal transportation. However, it may be difficult to decide in the concrete case whether loading operations have started already or not or which area could be considered as dockside, port or terminal.
The handling of the cargo by the terminal operator is part of the ocean carriage. However, according to the BGH that applies only if no special circumstances are given. It would be a long shot to estimate what such circumstances could be. The length of the distance over which the cargo is transported on the terminal may play a role. However, the court gave no indication.
The decisions leave further questions open - they had not to be decided in the respective cases. Especially the question how in detail the applicable law has to be determined that governs the leg of transport where the damage occurred and whether a choice of law clause in the multimodal contract of carriage does influence that determination.
Read Jacobus Bracker's comment also at DMC's CaseNotes.
Read Jacobus Bracker's comment also at Forwarderlaw.
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