The plaintiff was N's insurer. On 26 June 2013, N asked the defendant for an offer to transport a 20-foot container to Karachi, Pakistan. The defendant offered transport from N's factory to Karachi for a fixed price of EUR 2,086. The offer involved picking up the goods by truck, transporting them by road to Hamburg, loading them into a 20-foot container, and then transporting them to Karachi by sea. The footer of the email offer from the defendant contained (among other things) this note: 'We work exclusively on the basis of the latest version of the general Austrian forwarding agent conditions (AÖSp).'

On 5 July 2013, the goods were loaded onto a truck belonging to the defendant at N's factory. In addition, 14 packs of other goods were 'accidentally' loaded onto the truck. These goods were not included in the transport order, but should have been delivered to India by another transport company. A total of 46 packages were brought by truck to the port of Hamburg, where they were stowed in a 20-foot container and shipped to Karachi.

In Karachi, the complete shipment was unloaded and handed over to the recipient's authorised representative (customs broker). It was only when the container was checked by customs that it was found that 46 packages had been delivered instead of the 32 packages stated in the documents. This caused difficulties with customs clearance. The goods intended for Pakistan could only be delivered to the recipient after a delay and paying additional customs costs. N paid a total of EUR 8,393 in customs costs and compensation payments resulting from the delay. The goods destined for India could not be recovered; their value was EUR 83,020.50. The plaintiff compensated its insured N for the damage totalling EUR 91,413.50.

The plaintiff then filed a lawsuit on 3 November 2014 with the Court of first instance. The plaintiff argued that as this was multimodal transport, the liability regime of the place of damage was decisive. Since the goods intended for India were mistakenly picked up by the defendant's truck driver, the damage should be attributed to the road transport leg. The mandatory provisions of the CMR therefore superseded the AÖSp. The three-year limitation period in art 32 of CMR was therefore applicable.

The defendant contended that any alleged damage lay exclusively with N, and there were no indications that the defendant was at fault. The loading was carried out exclusively by N's employees. The goods were not mixed up by the defendant, but handed over to their driver by N's shipping department due to an organisational error. The plaintiff's claim was therefore not justified due to the exclusive fault of its policyholder. According to the AÖSp, any claims of the plaintiff were already time-barred.

The first instance judgment dismissed the complaint on the basis that the terms of the AÖSp were decisive. The Court of Appeal upheld the plaintiff's appeal by overturning the judgment of the Court of first instance and ordering it to make a new decision based on an additional procedure. It stated that in the case of a multimodal freight contract, the hypothetical contract for carriage on the leg on which the damage occurred should have been taken into account. The Hamburg Rules and the CMR needed to be taken into consideration. However, there were no indications of starting points according to art 2 of the Hamburg Rules, which is why this Convention was not applicable. The goods destined for Karachi were undisputedly transported by truck after official processing in Pakistan, but this transport was not cross-border, which is why the application of the CMR was also out of the question. No mandatory standards (art 41 of the CMR; art 23 of the Hamburg Rules) stood in the way of the application of the agreed AÖSp terms.

The plaintiff appealed to the Supreme Court.

Held: The appeal is admissable but unjustified. The Court of first instance is to make further decisions.

If the transport order placed has the object of transport with different transport modes from the outset (truck, train, ship etc), the liability of the carrier commissioned with the transport over the entire route is based on the liability regulations applicable to the respective means of transport. This 'network system' is decisive for determining the liability regime. According to the case law, if the location of the damage is known, the hypothetical contract concluded between the parties to the multimodal freight contract for carriage on the leg on which the damage occurred is to be based on the contract (6 Ob 349/97k [location of the loss]; 7 Ob 145/10i). Instead of the place of acceptance and delivery of the multimodal transport, the place of beginning and end of the relevant leg is crucial (RIS-Justiz RS0062353[T3]; RS0126555).

Article 2.1 of the Hamburg Rules regulates the Convention's scope. Accordingly, the Hamburg Rules apply to all contracts for carriage by sea between two different States if:

(a) the port of loading as provided for in the contract of carriage by sea is located in a Contracting State, or

(b) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State, or

(c) one of the optional ports of discharge provided for in the contract of carriage by sea is the actual port of discharge and such port is located in a Contracting State, or

(d) the bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State, or

(e) the bill of lading or other document evidencing the contract of carriage by sea provides that the provisions of this Convention or the legislation of any State giving effect to them are to govern the contract.

Here, the port of loading is in the Federal Republic of Germany (Hamburg), and the port of discharge is in Pakistan (Karachi). Neither country has yet ratified this Convention. Furthermore, none of the parties has specifically claimed that the application requirements of the Hamburg Rules, in particular the issuance of a bill of lading in Austria, are met (compare 8 Ob 74/04x (CMI1855)). The Court of Appeal therefore correctly held that the Hamburg Rules are not to be applied in any case.

According to s 64 of the AÖSp, all claims (compare RIS-Justiz RS0119348) against the freight forwarder become statute-barred after six months, regardless of the legal basis and regardless of the degree of fault (compare RIS-Justiz RS0106911). The statute of limitations begins when the entitled person becomes aware of the claim, but at the latest when the goods are delivered. The limitation period for claims for damages for the loss of goods stored by the freight forwarder due to confiscation and sale in an overseas port only begins after the injured party has been informed of the reasons for the confiscation and the behaviour of the freight forwarder (RIS-Justiz RS0119349).

According to art 32.1 of the CMR, claims arising from carriage subject to this Convention become statute-barred after one year. However, in the case of intent or fault that is equivalent to intent under the law of the court seized, the limitation period is three years. Article 32 of the CMR therefore contains a stricter statute of limitations that deviates from s 64 of the AÖSp, and therefore excludes it (4 Ob 180/07k; 7 Ob 501/96). The statute of limitations for a claim by the policyholder against the defendant is therefore - contrary to the defendant's view - not to be assessed according to s 64 of the AÖSp, but according to art 32 of the CMR. With regard to the legal view it represents, the Court of first instance has so far not actually examined the prerequisites for the assessment of a possible statute of limitations. This question will - if necessary - be discussed with the parties in the continued proceedings on the basis of the relevant criteria under art 32 of the CMR and then assessed on the basis of the findings to be made.

In the continued proceedings, based on the liability and recourse requirements presented, the Court of first instance will have to examine in factual terms, in particular by clarifying the responsibility for the loading process, whether there is a claim by N against the defendant that is not yet statute-barred, and which has been transferred to the plaintiff.