The client, G GmbH, commissioned the plaintiff, A GmbH & Co KG, to transport a container loaded with 34 motorcycles from the client's warehouse to a Netherlands seaport for onward maritime transport to Japan. The plaintiff commissioned the defendant, B GmbH, to transport the container from the client's warehouse to the seaport terminal, to be handed over to the shipping company N. The defendant commissioned the second intervener with the truck transport from the warehouse to a container terminal, and the third intervener with rail transport from the container terminal to the shipping company N. Internally, the third intervener subcontracted this leg of the transport.

The container was loaded onto a freight train operated by the Dutch company Q BV on 16 March 2022. Because the train arrived late, the container could not be transported directly to the seaport terminal, but had to be temporarily stored in a container terminal. From there, the container was picked up by a truck on 25 March 2022 at 13h11 and transported to the seaport terminal. When the truck left the container terminal, the original blue seal was still attached.

The container was received at the seaport terminal for N at 18h47 on the same day. At the time of handover, the presence of a seal was checked, but not the specific seal number. Because the plaintiff failed to submit all shipment documents to N in time, the container could only be sent to Japan on the next available ship. The container was therefore stored in the port terminal for 18 days. On 12 April 2022, the container was finally loaded onto container ship S.

On 21 May 2022, the container ship arrived. The seal was immediately checked and an inventory conducted. The container was still sealed, but now with a different, white seal. On opening the container, it was discovered that 26 motorcycles were missing.

The plaintiff sought a declaration of the defendant's liability for all damages resulting from the transport of the container between the warehouse and seaport terminal. Alternatively, it sought payment of EUR 130,525.20. Although the location of the theft of the motorcycles was unknown, the plaintiff argued that it could be limited to the section of the journey undertaken by the defendant. The probability that the theft occurred during the truck's onward carriage from the container terminal to the seaport terminal was particularly high, as this was the only period during which the container was unmonitored. Theft at the seaport terminal could be ruled out as it was a hermetically sealed customs-free zone.

The defendants and the interveners sought dismissal of the action and argued that the theft did not occur in the defendants' custody. They also argued that declaratory relief was inadmissible because the plaintiff could already quantify its damages.

The Court of first instance dismissed the plaintiff's claims, finding that the plaintiff had not proved where the theft occurred. Multimodal transport contracts are not regulated by law in Austria. The decisive factor is the 'network system' developed by case law. If the location of the damage is known, the legal provisions applicable to that leg of the transport are to be applied. Therefore, the contract hypothetically concluded for that leg of the transport is decisive. The place of takeover and delivery are replaced by the places where that leg begins and ends. If the location of the damage is unknown, the plaintiff can invoke the liability regime most favourable to it. The same is assumed for limitation periods.

The plaintiff appealed.

Held: The appeal is unjustified.

According to the uncontested findings, the original blue seal was still affixed to the container when the truck left the container terminal. This means that theft is only conceivable either during the truck's onward carriage or within the seaport terminal. The Court of first instance considered the arguments put forward and subjected them to a comprehensive assessment of the evidence. The Court of Appeal shares the conclusive assessment of the trial Court, according to which there is insufficient evidence to justify the assumption that the theft most likely occurred before the container was delivered to the seaport terminal. While high security standards may apply at the port, the trial Court plausibly demonstrated that theft from this site (as well as the diversion of the truck now alleged by the plaintiff) was nevertheless possible.

According to art 5 of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (the Rome I Regulation), a contract for the carriage of goods is governed by the law of the country in which the carrier has its habitual residence, provided that the place of taking over the goods, the place of delivery, or the habitual residence of the consignor is also located in that country. Therefore, Austrian law applies.

If the transport document issued from the outset involves transport by various means of transport (here, truck, rail, and ship), the liability of the carrier commissioned with the transport over the entire route is governed by the liability regime applicable to the respective modes of transport (the 'network system'). Instead of the place of receipt and delivery of the multimodal transport, the places of commencement and end of the relevant legs of the transport apply (7 Ob 2/16v (CMI1853); 7 Ob 45/20y).

The plaintiff's appeal relies solely on the fact that the theft occurred on the way from the container terminal to the seaport terminal. This leg of the transport was completed by truck within the Netherlands. In multimodal transport, the CMR only applies to that leg of the transport for which the conditions for the applicability of the Convention are met (7 Ob 2/16v (CMI1853)). The CMR is therefore not applicable because the places of takeover and intended delivery (on this leg) were not located in two different Contracting States (art 1.1 CMR). Section 439a of the Austrian Commercial Code (UGB) extends the scope of application of the CMR to domestic transport. With this provision, however, the legislature intended to regulate only transport within Austria, so that non-cross-border transport abroad, even taking this provision into account, is not subject to the CMR if Austrian law applies. Therefore, the relevant provisions of the Austrian Commercial Code (UGB) (ss 425 ff) apply to this leg.

According to the liability regime of the UGB, the carrier is liable for damages resulting from loss or damage to the goods between acceptance and delivery, or from failure to meet the delivery deadline (s 429(1) UGB). This liability covers damages and losses that occur between acceptance and delivery of the goods. The liability period, and thus the carrier's scope of responsibility, ends as soon as the recipient, ready to accept the goods, is granted access to them. The injured party must prove that the damage occurred while the goods were in the carrier's care (see 7 Ob 102/13w; 7 Ob 126/09v; 3 Ob 132/06t; 1 Ob 28/00z). However, the Court of first instance could not determine whether the motorcycles were stolen before or after delivery of the container to the seaport terminal. This negative finding is to the detriment of the plaintiff.