The defendant freight forwarder submitted a freight forwarding offer to the plaintiff's retail company, which expressly included the application of the General Austrian Forwarding Conditions (the AÖSp), and explained that the transport was covered by insurance. Among other things, the defendant transported eight pallets of wine from Vienna to Manila via Hamburg. The defendant was not commissioned with customs clearance of the goods in Manila. When the goods arrived in Manila, it was clear that their intended use for establishing a business there was not possible. The plaintiff instructed the defendant not to carry out delivery, but to store the goods in a duty-free warehouse, which the defendant did. The plaintiff was informed of the storage costs on 11 September 2000. The plaintiff decided to bring the goods back to Austria and instructed the defendant to return the goods to Vienna together with the shipping documents. The defendant accepted this order, but then advised that the customs in Manila had confiscated the goods. The defendant later informed the plaintiff that the shipment had been released and could be returned. On 23 March 2001, the plaintiff submitted a claim for damages totaling ATS 362,829.33, which included a loss of profit of 80% of the value of the goods. However, the defendant's insurance company refused to cover this damage in a letter dated 21 June 2001, since the defendant could not be accused of culpable conduct.

The plaintiff relied on the fact that the defendant first informed her in a letter dated 20 July 2001 that the customs authorities had arranged for the goods to be auctioned. The defendant not only failed to carry out the return transport and take appropriate precautions to prevent loss after storage, but also failed to inform the plaintiff in good time about any measures that might have been necessary to prevent the confiscation and loss of the goods. The defendant intentionally or at least grossly negligently failed to protect the plaintiff's interests.

The defendant applied for the dismissal of the plaintiff's complaint and objected, among other things, that according to the AÖSp the claim was statute-barred.

The Court of first instance dismissed the complaint on the basis that any claim was time-barred according to s 64 of the AÖSp. The Court of Appeal upheld the plaintiff's appeal against that judgment, reversed the trial Court's decision, and remanded the case to the trial Court for a new hearing and decision. The provision of s 64 of the AÖSp, according to which all claims against the freight forwarder become time-barred after six months, regardless of the degree of fault, is based on art 23 read in conjunction with art 20 of the Hamburg Rules. It was not clear here yet whether there was a forwarding contract or a multimodal freight contract. In the case of the latter, the liability regulations applicable to the respective modes of transport must be taken into account. Here the goods were transported by ship to Manila. Accordingly - in so far as it is a question of a contract of carriage - the relevant provisions of carriage law are to be applied. However, art 23.1 in conjunction with art 20 of the Hamburg Rules provides for a mandatory limitation period of two years. In this respect, a statute of limitations cannot yet be assumed. The Court of Appeal considered an appeal to the Supreme Court to be admissible, as there was no case law by the Supreme Court on the question of the two-year limitation period in accordance with art 20 of the Hamburg Rules on sea freight contracts for an agreed fixed rate, or on the carrier's obligation to provide information.

Held: The defendant's appeal is admissible for the reason given by the Court of Appeal, but is ultimately not justified.

It can be assumed that the AÖSp are to be taken as the basis of the transactions, also with regard to storage in Manila and the order for return transport (compare generally RIS-Justiz RS0049379 mwN; 7 Ob 13/01i). Section 64 of the AÖSp provides:

All claims against the freight forwarder, regardless of the legal basis and regardless of the degree of fault, expire in six months. The limitation period begins when the entitled person becomes aware of the claim, but at the latest when the goods are delivered.

These regulations are intended to cover all claims, ie claims for damages in accordance with s 414 of the Commercial Code (the HGB). It now follows from the more recent case law that - even according to the clear wording - not only slightly negligent but also grossly negligent behaviour is covered by this statute of limitations. The Court of Appeal found this to be correct. However, it has been assumed that these provisions do not apply because the provisions of the Hamburg Rules take precedence. However, the defendant points out correctly that the question of the applicability of the Convention remains unaddressed.

According to art 2.1 of this Convention, it applies to all contracts for carriage of goods by sea between two different countries 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.

The plaintiff has not referred to the Convention or to the existence of the conditions for its application. The port of loading is in the Federal Republic of Germany and the port of discharge is in the Philippines. Neither country has yet ratified this Convention (compare art 34 [28?] of the Convention). The plaintiff did not claim that the bill of lading was issued in Austria. Rather, it is clear from the submitted bill of lading that it was issued by a German company. From this alone, it cannot be assumed that the applicability of the provisions of the Hamburg Rules has been proven.

Furthermore, however, reference should be made to art 4 of the Hamburg Rules, according to which the carrier's responsibility extends to the period in which the goods are in the care of the carrier in the port of loading, during transport and in the port of discharge. According to arts 4.2.b.ii and 4.2.b.iii of the Hamburg Rules, the custody of the carrier ends in cases where the consignee does not receive the goods from the carrier, by placing them at the disposal of the consignee in accordance with the contract or with the law or with the usage of the particular trade, applicable at the port of discharge; or by handing over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed over. However, after arrival at the port of discharge, the defendant received the plaintiff's instructions to store the wine in a duty-free warehouse. This ended the defendant's custody within the meaning of the Hamburg rules, which only relate to the carriage of goods by sea. In this respect, too, application of the Hamburg Rules, and thus the two-year limitation period provided for in art 20 of the Convention is ruled out, and the six-month limitation period of s 64 of the AÖSp remains.

The Court of Appeal therefore correctly referred the case back to the Court of first instance for the procedure to be supplemented and a new decision to be made. In the continued proceedings, the Court of first instance will have to determine in advance whether the confiscation and auction was actually due to a state regulation in respect of goods that were not collected, and whether the defendant failed to provide information about this.

Then it is up to the defendant - if the liability limitations of the AÖSp are applicable - to prove why this breach of the duty to warn should not constitute gross negligence, and when the plaintiff was aware of the relevant circumstances.