The plaintiff hired the defendant in 2008 to transport goods from Türkiye to the UK and Spain. The goods, with a value of EUR 746,361.23, were initially transported by a subcontractor of the defendant on two trucks to the Turkish port of Pendik and 'piggyback' transported on the ferry Und Andryatik. The ferry caught fire during the crossing on the Mediterranean Sea to Italy on 6 February 2008 and was destroyed, with the cargo on it. The cause of the fire remains uncertain.

The plaintiff argued that the defendant's liability should be assessed according to the provisions of the Convention on the Contract for the International Carriage of Goods by Road 1978 (CMR), despite the fact that the damage occurred during maritime transport. In contrast, the defendant contended that fire on a ship has always represented a typical danger in maritime transport. Article 2.1.2 of the CMR leads to the application of Turkish sea carriage law and the Hague Rules. In terms of this Convention, the defendant is exonerated from liability.

The Regional Court held that the defendant was liable according to the application. The Court of Appeal found the action justified in the amount of EUR 179,448.39 (OLG Munich, TranspR 2011, 158). With the appeal on appeal approved by the Court of Appeal, which the plaintiff requests to be rejected, the defendant continues to strive for the complete rejection of the claim.

Held: The defendant can successfully invoke the exclusion of liability in art 4.2.b of the Hague Rules.

The appellate Court found that the plaintiff is entitled to a claim for damages against the defendant in the amount awarded in accordance with arts 2.1.1, 2.1.3, 17.1 and 23 CMR. It held that the defendant's liability for the damage in dispute is assessed in accordance with art 2.1.1 CMR in accordance with the provisions of this Convention, since the exception provision of art 2.1.2 CMR was not applicable. The provisions of the Hague Rules to be applied under Turkish law for the hypothetical sea carriage contract between the consignor and the Turkish carrier are not mandatory regulations within the meaning of art 2.1.2 CMR.

The liability of the defendant according to arts 2.1.1, 2.1.3 and 17 CMR is limited by art 23.3 CMR to 8.33 SDRs for each kilogram of gross weight short, because the defendant did not cause the damage through wilful misconduct or the equivalent. The weight of the shipment destroyed by the fire was 18,600.56 kg. The value of the SDR on the day the judgment was pronounced (art 23.7 CMR) was EUR 1.15816. This results in the amount awarded of EUR 179,448.39. An exemption from liability according to art 17.2 CMR is out of the question.

The defendant's appeal against the award is well-founded. It leads to the complete dismissal of the lawsuit.

CMR applies to the entire transport if the vehicle loaded with the goods during an international road transport on part of the route - as in this case - is by sea, and the goods - apart from cases covered by art 14 CMR - are not transhipped. However, this principle is departed from under the conditions of art 2.1.2 CMR, which provides that in so far it is proved that any loss or damage which occurs during the carriage by the other means of transport was not caused by act or omission of the road carrier, but by some event which could only occurred in the course of and by reason of the carriage by that other means of transport, the liability of the road carrier shall be determined not by the CMR but in the manner in which the liability of the carrier by the other means of transport would have been determined if a contract for the carriage the goods alone had been made by the sender with the carrier by the other means of transport is based on the conditions prescribed by law for the carriage of goods by that means of transport.

The judgment of the appellate Court, which held that the exception clause of art 2.1.2 of the CMR is not applicable in this case because the Hague Rules, which apply under Turkish law to the hypothetical sea freight contract between the consignor and the Turkish carrier, are not mandatory provisions in the sense of the aforementioned CMR regulation, does not stand up to legal review. A lack of clarity results from a clear difference between the two equally binding text versions. While the English wording ('conditions prescribed by law') suggests that dispositive law is sufficient for the application of the exception provision of art 2.1.2 CMR, the French wording ('dispositions impératives') makes it seem likely that the scope of application of art 2.1.2 CMR is only available in the case of indispensable provisions. In the contracting States of the CMR, there is thus far no general consensus on the meaning of art 2.1.2 of the CMR (cf Hoge Raad der Nederlande, TranspR 1991, 132, 133 at 3.3; Herber, TranspR 1994, 375). The history of the development of the Convention cannot be used for interpretation, since neither an official report nor any other preparatory works have been published or are otherwise publicly available.

The provision of art 2 CMR was drafted and adopted in the second meeting of the special working group. The minutes of this meeting show that the text for art 2 CMR was drafted by the representative of the UK during this meeting. The legislative text proposed by the UK, which was aimed at exempting road hauliers from liability for damage caused by shipping during sea transport and leaving the liability regime to the law applicable to carrier transport, was rejected by the majority of the States involved. The British delegation then revised its proposal, which was finally accepted by the participants of the conference. From this it follows that art 2 CMR - in contrast to all other provisions of the Convention - was not primarily edited in French, but was revised by the special working group on the proposal in English. This circumstance justifies not attaching too much to the French version of the text when interpreting art 2 CMR.

In addition, when interpreting art 2.1.2 CMR, the meaning and purpose of the provision are of decisive importance. The regulation concerns piggyback transportation. The transport vehicle loaded with the goods is transported over part of the entire route by ship, train or plane. According to art 2.1.1 CMR, the provisions of the Convention remain generally applicable during this phase of the transport. Article 2.1.2 CMR makes an exception to this. This exception is repealed if 'conditions prescribed by law'/'dispositions impératives' are missing. In that case, the regulation in art 2.1.1 CMR remains. The provision of 2.1.2 CMR aims to prevent the road haulier from being exposed to stricter and more extensive liability than its subcontractors. This danger is especially significant in piggyback transport by ship, because the liability of the carrier according to the Hague Rules and the maritime liability provisions in the Commercial Code is significantly lower than the liability prescribed under the CMR. This applies not only to the amount of liability, but above all to the exemptions from liability in the event of nautical fault and fire: §§ 607(2), 658 ff HGB; see also BGH, judgment of October 26, 2006 - I ZR 20/04 , BGHZ 169, 281 Rn 38 ff (CMI1089)).

In its decision of 29 June 1990, (TranspR 1991, 132) The Hoge Raad of the Netherlands decided that the words 'conditions prescribed by law'/'dispositions impératives' refer to objective law. This interpretation is consistent with the fact that art 1.1 CMR defines the scope of the agreement solely on the basis of objective connecting criteria in order to regulate the liability of the road haulier in a uniform manner. At the time the CMR was being prepared and concluded, uniform law had already been in place for transport contracts with an international character, namely the Hague Rules for sea transport, CMI for rail transport, and the Warsaw Convention for air transport. It can be assumed that these Conventions, and the national regulations based on them, were in the mind of the contracting parties when art 2.1.2 CMR was created. The contracting States apparently recognised when including the exemption of art 2.1.2 CMR that the other treaties contained uniform law that is particularly geared towards the unusual nature and risks of the respective forms of transport. The conference participants were obviously also of the opinion that under these circumstances it was desirable that uniform law with regard to piggyback transport determined the mutual relationship between sender and carrier.

From this, the Hoge Raad concluded that the words 'conditions prescribed by law'/'dispositions impératives' were meant to refer to a statutory principle of liability based on, or derived from, internationally agreed uniform transport law (TranspR 1991, 132, 134). The Hoge Raad noted that this interpretation of art 2.1.2 CMR - also in view of the French version of the text - primarily raises the question of whether the uniform liability regime that has been established for the type of transport in question, must be 'mandatory' in such a way that it cannot be deviated from. The Hoge Raad denied this, considering that otherwise the CMR regulations would always apply for piggyback transport by sea, because the Hague Rules are not 'compulsory' with regard to the fact that, according to art 5, they allow deviating agreements to the detriment of the carrier (TranspR 1991, 132, 134). That could not be the meaning of the regulation in art 2.1.2 CMR.

The decision of the Hoge Raad is convincing because it leads to appropriate results, especially for piggyback transport by sea, which was the reason for the exemption. It cannot be assumed that the participants in the conference on the creation of the CMR with regard to piggyback transport by sea wanted to disregard the uniform law applicable to sea transport. The English version of the text can be interpreted as meaning that the contracting states wanted the content of the fictitious freight contract between the sender and the piggyback carrier to be determined by the uniform law specifically applicable to this contract. With the objective construction of this hypothetical agreement it should also be stated that deviating agreements, in so far as they are permissible under the special uniform law, must be disregarded.

In the event that the piggyback transport takes place by sea, art 2.1.2 CMR refers abstractly and generally to a hypothetical sea freight contract between the sender and the carrier that meets the objective application requirements of the Hague Rules or of sea carriage law according to the Commercial Code. For the reasons mentioned above, the content of the transport contract actually concluded between the sender and the road haulier must not be taken into account when determining the fictitious freight contract within the meaning of art 2.1.2 CMR. With this understanding of art 2.1.2 CMR, the differing binding text versions of the provision can also be reconciled with one another based on the meaning and purpose of the provision.

In addition, this interpretation of art 2.1.2 CMR protects the road haulier's rights of recourse. For typical maritime damage, it is only liable under the Hague Rules, which are more favorable to it than the CMR. According to art 3.8 of the Hague Rules, the carrier's liability for loss of or damage to goods, in so far as the damage is due to negligence or non-fulfilment of the obligations and liabilities provided for in art 3, cannot be excluded. In this respect, the Hague Rules contain at least one-sided mandatory law, from which it is not possible to deviate from by party agreement. The CMR also allows deviations from the maximum liability amounts (art 23.3, art 25 CMR) in favor of the carrier's client, as can be seen primarily from art 26 CMR. The liability norms of the CMR are therefore also only mandatory on one side.

The defendant is therefore not liable for the damage caused by the fire if it did not cause the damaging event, but if the damage was caused by a typical carrier risk during sea transport. The carrier's liability for damage or loss of cargo is based on Turkish law in accordance with art 4.2.b of the Hague Rules, which have entered into force and apply there directly because Türkiye - unlike Germany - has not made use of the option to implement the rules into domestic law. According to art 4.2.b of the Hague Rules, the carrier is not liable for loss or damage to goods caused by fire, unless it caused the damage through its own fault. There are no concrete indications that the haulier's management is at fault. The defendant can therefore successfully invoke the exclusion of liability under art 4.2.b of the Hague Rules.