M/V Atlantic Concert
DMC Category Rating – Developed
Case Note contributed by Daja H. Böhlhoff, partner of BBL Rechtsanwälte. BBL is the International Contributor to this website for Germany
After the defendants had compensated the plaintiffs on the basis of 2 SDR per kilogram, the plaintiffs claimed an additional amount of EUR 173,041. They argued that the limitation of liability was 8.33 SDR per kilogram pursuant to the general German law of affreightment. The loss had occurred during a separate land transport leg of the voyage and was thus not subject to the maritime law limitations and exclusions of liability. The defendants were of the opinion that the transhipment in port after discharge from the sea vessel constituted an annex to the sea voyage which was governed by maritime law.
The Landgericht Hamburg had ruled in favour of the defendants that the loss was governed by maritime law and that the defendants’ liability was limited to 2 SDR per kilogram.
The contract for the combined transport was between two German parties so that the liability of the defendant was subject to German law, in particular section 452* German Commercial Code (HGB). Because it was undisputed that the goods were damaged during transhipment it could be established that the loss occurred during a specific leg of the carriage. That meant that the law governing the liability of the carrier was to be determined by section 452(a) HGB**, that is, in accordance with the legal provisions which would apply to a contract of carriage covering the leg of carriage where the loss occurred. The transport by mafi trailer covered a distance of several hundred metres which was sufficient to make it a separate leg of carriage. Because the goods had already been discharged from the vessel and were in the course of being loaded onto the truck, the transport to the warehouse was not an annex to the sea transport, which would be subject to maritime law, but a separate land transport to which the general German law of affreightment applied. In this regard, the court attached importance to the complexity of the heaving and lashing of the crates, on which the shipper had given specific and detailed instructions, and to the fact that the chains securing the crates on the trailer had already been removed prior to the loss occurring whilst the trailer was being shifted. Accordingly, the limitation of liability was 8.33 SDR pursuant to section 431 HGB.
The Court held that the defendants could not rely on the bill of lading clause limiting their liability to 2 SDR per kilogram because the general law of affreightment (section 449 HGB) required that general business terms relating to the limitation of liability had to be given a prominent appearance by a special printing technique. In this case, the limitation clause had been marked on both sides by a vertical line. The Court held this to be insufficient because the line ran along the entire clause and did not particularly emphasise the limitation amount of 2 SDR.
An appeal to the Federal Supreme Court (Bundesgerichtshof) was not allowed by the OLG. The defendants have filed an objection to this ruling, claiming the right to appeal. This application is still pending at the Bundesgerichtshof.
*section 452 HGB: "If carriage of goods is performed by various modes of transport on the basis of a single contract of carriage, and if, had separate contracts been concluded between the parties for each part of the carriage which involved one mode of transport (leg of carriage), at least two of these contracts would have been subject to different legal rules, the provisions of the [general law of affreightment] shall apply to the contract, unless the following special provisions or applicable international conventions provide otherwise. This also applies if part of the carriage is performed by sea."
**section 452(a) HGB: "If it has been established that the loss, damage or event which caused delay in delivery occurred on a specific leg of the carriage, the liability of the carrier shall…. be determined in accordance with the legal provisions which apply to a contract of carriage covering this leg of carriage…"
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