The defendant P organised the transport of steel construction parts for A, an international steel plant constructor, in a permanent business relationship. A usually submitted written transport inquiries stating the details of the goods, desired dates and pick-up and unloading locations, on the basis of which the defendant then submitted an offer. Both A and the defendant are based in Austria.

On the basis of a transport request from A regarding the organisation of sea transport of steel construction parts and air preheaters from a producer in China to a recipient in South Africa, the defendant submitted to A by email on 23 March 2007 an 'offer' in which it communicated its terms calculated in accordance with A's requirements, including details of the costs for the transport. Subsequently, there were renegotiations between the defendant and A regarding the price by way of an email correspondence, whereupon the defendant offered A by email of 29 March 2007 a freight rate of 110 USD per ton for the steel construction parts and 132 USD per ton for the four air preheaters. The remaining terms remained unchanged. A replied by email dated 31 March 2007 that, in accordance with the defendant's offer of 23 March 2007, including addenda dated 23 March 2007, carriage 'FOB from Shanghai, liner shipping, Liner Term Hook/Hook, to CFR Durban, Liner Term Hook/Hook' was to be booked.

The shipment was loaded onto the MS P on 12 and 13 April 2007 in the port of Shanghai. The loading took place against the issuance of a bill of lading in English on 13 April 2007 by the shipping company in China. This bill of lading, the offer of 23 March 2007 and the order email of 31 March 2007 did not contain any indication that the contract was subject to the United Nations Convention of 1978 on the Carriage of Goods by Sea (Hamburg Rules).

The cargo was secured to the deck with wire cables and turnbuckles. In strong winds and rough seas, one of the air preheaters fell overboard on 20 May 2007 and could no longer be found. As the cargo insurer of A, the plaintiff W provided an insurance benefit of EUR 545,000.

In the present action the plaintiff seeks recourse from the defendant for the amount in EUR which on the day of the judgment corresponds to the equivalent of 128,500 Special Drawing Rights (SDRs) of the International Monetary Fund (IMF), plus interest on arrears since 20 May 2007. The plaintiff argues that the defendant is liable according to the Hamburg Rules, which have been in force in Austria since 1 August 1994. According to arts 5 and 6 of the Rules, this liability is limited to 128,500 units of account (ie SDRs) based on the air preheater's gross weight of 51,400 kg. The contract of carriage was concluded in writing, comprising of the defendant's offer of 23 March 2007 and A's acceptance of 31 March 2007

The defendant objected that any liability was limited to a maximum of ATS 10,000 = EUR 726.73 according to § 660 UGB (the Austrian Commercial Code). The prerequisites for the applicability of the Hamburg Rules - as explained in relation to 8 Ob 74/04x - are not met because the case relates to sea transport from Shanghai, China, to Durban, South Africa, which are not contracting States of this Convention, and the bill of lading issued in Shanghai does not meet the requirements of art 2.1 of the Hamburg Rules. The offer and the order letter are not an 'other document evidencing the contract of carriage by sea' within the meaning of arts 2.1.d and 2.1.e of the Rules.

The Court of first instance required the defendant to reimburse the plaintiff EUR 726.73 and rejected the claim that went beyond this. The Court held that the Hamburg Rules were not to be applied because an 'other document evidencing the contract of carriage by sea' within the meaning of arts 2.1.d and 2.1.e, in conjunction with art 18 of this Convention, had not been issued. The defendant's offer and the order email from A did not contain a receipt and, according to their purpose, did not serve as evidence of the conclusion of the sea carriage contract; rather, they were aimed directly at the conclusion of the contract, without having been issued for evidentiary purposes. In addition, according to the wording of art 2.1.d of the Hamburg Rules, it would have to be a single document proving the sea carriage contract. Here, however, the content of the sea carriage contract can only be derived from the synopsis of all three emails (offer, supplementary email and order email). Since transport was agreed at a fixed price, the General Austrian Freight Forwarders' Terms and Conditions (AÖSp) should not be applied either. The defendant is liable for the loss of the transported goods, but according to § 660 UGB, only up to a maximum amount of ATS 10,000 = EUR 726.73.

The Court of Appeal confirmed the judgment and stated that ordinary revision was permissible. The use of the specific article 'the' (other document evidencing the sea carriage contract) [in the German translation of the Hamburg Rules: 'die andere den Seefrachtvertrag beweisende Urkunde'] in art 2.1.d of the Hamburg Rules militates against the broad interpretation advocated by the plaintiff that the Convention is to be applied if any document proving the sea carriage contract, or even several documents in combination, are issued in a contracting State to the Convention. If the contracting States of the Convention had meant the sea carriage contract itself with this wording, which the plaintiff used here to justify the application of the Hamburg Rules that it wanted, the Convention could have been formulated much more simply (for example: 'the bill of lading or the sea carriage contract entered into in a contracting State' ['das Konnossement oder der Seefrachtvertrag in einem Vertragsstaat ausgestellt wird']).

The Court of Appeal therefore shared the legal view of the first Court that 'the other document evidencing the contract of carriage by sea' in art 2.1.d of the Hamburg Rules means a document in the sense of art 18. The emails in which the offer and acceptance of the sea freight contract were declared could not justify the application of the Hamburg rules. The ordinary revision is to be allowed because the Supreme Court has not yet dealt with the interpretation of art 2.1.d of the Hamburg Rules.

Held: The appeal is permissible for the reason given by the Court of Appeal, but it is not justified.

The revision relies on the emails of the contracting parties resident in Austria written in the contracting State of Austria and claims that they constitute 'in their entirety' an 'other document evidencing the contract of carriage by sea' within the meaning of art 2.1.d of the Hamburg Rules, which justify their applicability. However, given the wording of the cited provision, this cannot be accepted.

Both in the English and in the French texts (as an alternative to 'the' bill of lading) a different document evidencing the sea carriage contract and issued in a contracting State is required ('[t]he bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State,'; '[l]e connaissement ou autre document faisant preuve du contrat de transport par mer est émis dans un état contractant,'). The UN Commission on International Trade Law, Working Group on Electronic Commerce (39th Session, New York, 11-15 March) therefore states that it is (also) to be deduced from the reference to the issuance of a 'different document' in art 18 of the Hamburg Rules that the Convention intends the use of 'paper-based documents' ('the reference in article 18 to the issuance of a "document" other than a bill of lading suggests that the Convention contemplates the use of paper based documents': p 25, para 127). The same results from the Explanatory Note by the UNCITRAL Secretariat on this treaty, which clarifies in paras 11, 13, 34, 40 and 41 (pp 23, 27 and 28) that the Hamburg Rules should also be applicable if the carrier does not issue a 'bill of lading' but a different 'transport document'.

According to the evidence, the contract was only concluded by email. In this case, there is therefore no such ('paper-based') 'other document evidencing the contract of carriage by sea ... issued in a Contracting State'. In the case of 8 Ob 74/04x, a bill of lading was issued anyway, but not in a contracting State to the Convention. The plaintiff was therefore unable to prove the applicability of the Hamburg Rules due to the existence of such a different document issued in Austria (instead of the bill of lading). In view of these clear requirements, the further revision statements on the specific article contained neither in the English nor in the French version but used only in the German translation (which provides 'the' (not: 'a') other document proving the sea carriage contract / '„die“ [nicht: „eine“] andere den Seefrachtvertrag beweisende Urkunde') are ineffective. The same applies to the arguments derived from the - here not even present - sea waybill to combat the correct assessment of the lower Courts.

The revision must therefore be unsuccessful.