The plaintiff is a Swedish freight forwarding company. It sues the defendant, who is based in Hamburg, as the freight carrier and claims for damages under its assigned rights due to damage to cargo. The Swedish company E (seller) sold three military trucks with radar systems to the Republic of Venezuela (buyer) for a total price of USD 16,641,000. The seller had to take care of the transport of the trucks from Gothenburg, Sweden, to La Guaira, Venezuela. There is a dispute between the parties as to whom they commissioned with the transport or its organisation. On 12 January 2000, the seller sent the plaintiff a written request for sea transport, which contained the handwritten note 'UNDER DÄCK'. On 19 October 2000, the plaintiff submitted an offer for transport 'on deck but in a protected area on feeder legs'. It also issued a booking confirmation on 31 October 2000. In the bill of lading of 17 November 2000 the plaintiff was designated with the addition 'as Agents for the Carrier'; B was noted as the carrier. Hong Kong company T, which, like the plaintiff, belongs to the K group, trades under the name B.

B, represented by the plaintiff, commissioned the defendant to transport the three trucks. The order letter reads: 'LASTNING UNDER DÄCK'. The defendant confirmed the booking on 14 November 2000 with the addition 'under deck'. However, the trucks were not carried under deck, but on deck, and were delivered to Venezuela on 12 December 2000. The buyer rejected the trucks as damaged. The trucks were then transported back to Sweden and examined there in January 2002. The extent of the damage alleged by the plaintiff is in dispute between the parties.

By letter of 26 January 2001, the plaintiff held the defendant liable for any damage. On 12 March 2001, B assigned its claims against the defendant to the plaintiff. On 5 November 2001, the buyer assigned any claims to which it was entitled to the seller, who in turn assigned any claims to which it was entitled to Z, an insurance company. Since 2005, Z has been conducting litigation against the plaintiff in Sweden, in which it demanded payment of SEK 15,069,249. This dispute was ended in 2009 when an out-of-court settlement was reached.

The plaintiff sued the defendant in the Regional Court of Hamburg. The Court dismissed the lawsuit. In response to the plaintiff's appeal, the appellate Court (OLG Hamburg TranspR 2009, 176 (CMI1107)) partially upheld the complaint, rejecting the further legal remedy, and established the defendant's obligation to pay damages due to the non-contractual deck carriage to the extent that T (acting as B) was liable to the plaintiff for this, up to a maximum of the value of 109,580 Special Drawing Rights (SDRs).

With the appeal approved by the Court of Appeal, the plaintiff continues to pursue its request for a declaration. The defendant has filed a follow-up audit aimed at completely dismissing the complaint. Both parties request that the opposing party's appeal be dismissed.

Held: The plaintiff's appeal is rejected in so far as it is directed against the fact that the appellate Court limited the liability of the defendant to a value of a maximum of 109,580 SDRs. The aforementioned judgment is overturned on the plaintiff's further appeal and the defendant's subsequent revision. The matter is referred back to the appellate Court for a new hearing and decision, including the costs of the appeal proceedings.

The defendant's follow-up audit successfully opposes the appellate Court's finding that, according to the content of the inspection reports, it can be assumed that the trucks and the radar systems were damaged during the defendant's custody.

As the carrier, the defendant is liable according to § 606 HGB [Commercial Code] for the damage caused by loss of or damage to the goods in the period from acceptance to delivery, unless the loss or damage is due to circumstances that could not be averted through the care of a proper carrier. A liability for damages in terms of the merits can only be assumed if it is certain that the goods in transit were actually damaged during the defendant's custody. The decisive factor is therefore whether the vehicles transported by the defendant were damaged when they were delivered to Venezuela.

The appellate Court has not yet made any findings on this. Rather, it was content with a certain probability of damage. That is not enough for a declaratory action to be well-founded. The only thing that is undisputed between the parties is that the vehicles were not carried under, but on deck. The defendant has denied that the trucks it was carrying were damaged during the sea voyage - ie during its custody period. In its own expert report, it submitted that the MS Caribia Express is a very large ship with goods stowed on deck secured far above the waterline, so that contact with spray water is only minimal, even in bad weather, and that the interiors of the closed vehicles were completely protected from the weather. Any salt deposits that had formed on the trucks could have been removed by simply washing the vehicles without leaving any residue and without any remaining corrosion damage. In any event, the inspection reports, which were produced a long time after delivery of the goods, did not show that any damage to the vehicles was already present at the time of delivery by the defendant.

On the basis of these submissions, the appellate Court should have made a determination as to whether there actually was damage to the transported goods during the defendant's custody. The plaintiff is required to present and provide evidence of this.

The appeal on the part of the plaintiff was generally admissible. However, the appellate Court only allowed the appeal in part, holding that the action was partially dismissed but only to the extent that T Ltd (acting as B Line) was not liable to the plaintiff for the damage. However, this restriction on approval is not effective. According to the case law of the Federal Court of Justice, the approval of an appeal can only be limited to an actual or legally independent part of the overall dispute, which may be the subject of a partial judgment or to which the appellant could limit its appeal. It is inadmissible to limit the admission to one of several substantive claims or to certain legal questions (BGHZ 101, 276, 278; 111, 158, 166; BGH, judgment of 26 October 2004 - XI ZR 255/03, NJW 2005, 664). According to this, an effective restriction on the admission of the appeal is ruled out because it is a dependent part of a substantive claim. In the event of an impermissible restriction of the revision authorisation, the contested judgment can be fully reviewed. If there is no effective restriction on the authorisation, the restriction alone, but not the authorisation, is ineffective, and the revision is therefore permitted without restriction (BGH NJW 2005, 664). On the basis of the plaintiff's submissions, the action is only partially based on § 606 HGB in conjunction with § 398 BGB [Civil Code]. The appellate Court cannot admit that the defendant only needs to be liable to the plaintiff to the extent that B owes the plaintiff damages. However, it assumed without legal error that the defendant's liability is limited to a maximum of 109,580 SDRs in accordance with § 660(1) HGB.

The appellate Court rightly assumed that German substantive law applies to possible claims of B against the defendant in accordance with § 27(1)(1) EGBGB [Private International Law Act], because the parties to the sea freight contract (B and the defendant) effectively agreed to this in cl 21 of the relevant bill of lading.

Contrary to the opinion of the defendant, the active legitimation of the plaintiff results from an effective assignment of B’s possible claims against the defendant to the plaintiff (§ 398 BGB). The question of the effectiveness of the transfer of claims is determined in accordance with § 33(2) EGBGB according to the law to which the transferred claim is subject, in this case according to German law. According to § 399(1) BGB, a claim cannot be assigned if the performance to a creditor other than the original creditor cannot be made without changing its content. A claim aimed at exemption from a liability is therefore generally not assignable. An exception to this applies if the claim - as in this case - is assigned to the creditor of that liability. The claim is transformed into a claim that is directed to the performance owed to the assignee (BGHZ 12, 136, 141; BGH, judgment of 14.3.1985 - I ZR 168/82, TranspR 1985, 335, 337). Legal concerns about the transferability cannot be derived from the contractual relationship between B and the defendant, because the assignment did not cause the defendant to be in a worse position, as according to §§ 404, 406 ff BGB, the assignment does not prevent the plaintiff from raising the objections that it could have raised against B (BGHZ 12, 136, 141 f).

The appeal on appeal successfully opposes the appellate Court's finding that the defendant only needs to compensate the plaintiff for the damage incurred or still to be suffered from the transport of the three trucks to the extent that B owes the plaintiff compensation. The appellate Court accepted that, if the plaintiff took precedence over B's assigned right to exemption, this claim could only go as far as B was exposed to a claim by the plaintiff. In so far as B could invoke an effective limitation of liability vis-à-vis the plaintiff, it was not exposed to such a claim, with the result that there was also no claim to exemption from the defendant to this extent. There are some indications that B can invoke more extensive limitations of liability vis-à-vis the plaintiff than exist in favour of the plaintiff in relation to the seller.

However, B had not only assigned its right to exemption to the plaintiff, but all of its rights vis-à-vis the defendant. If B had a further claim against the defendant in addition to the exemption claim, this claim would also have passed to the plaintiff. Such a claim could at best be derived from the principles of third party damage liquidation, which also apply in maritime trade law. However, there is no such claim. The 'classic' case of third-party damage liquidation occurs when damage and formal entitlement to a claim diverge. However, as a fixed-cost freight forwarder, the plaintiff has 'in itself' its own claim for damages against B. If it accepts limitations of liability in the contract concluded with B which led to its being liable to its client (here: the seller) to a greater extent than it could take recourse itself, this is done so at its own risk. It would not be an unsustainable outcome if this risk were to materialise. This result also corresponds to the legal assessment, since in §437(2) HGB it is expressly provided that the performing carrier can raise all objections to which the [contractual] carrier is entitled from the freight contract.

This assessment is successfully attacked by the revision.

The appellate Court correctly assumed that the principles of third-party damage liquidation also apply in sea freight law. Third-party damage liquidation is intended to prevent the injuring party from gaining an unjustified advantage through contractual agreements between its creditor and a third party, which shift the damage from the obligee to the third party. The legal relationships between the person entitled to compensation and the third party are fundamentally irrelevant to the injuring party. According to the principles of third party damage liquidation, the shipper (here: B in relation to the defendant) as the carrier's contractual partner is therefore authorised to assert third-party damage from the loss or damage to the goods in transit, regardless of whether the damage was caused to the shipper's contractual partner or to the final recipient (see BGH, ruling of 20 April 1989 - I ZR 154/87,TranspR 1989, 413, 414 = VersR 1989, 1168; Ruling of 1.6.2006 - I ZR 200/03, TranspR 2006, 308, 309).

In the event of a dispute, the situation is similar to § 447 BGB, according to which the shipper is generally exempt from liability for damage to the goods in transit in relation to the buyer, but is nevertheless entitled, according to the principles of third-party damage liquidation, to invoice the buyer for the damage incurred to the transporter (see BGH TranspR 1989, 413; see now also § 421(1) HGB and BGHZ 172, 330 Tz 30 ff).

The performing carrier (here: the defendant) is also not particularly in need of protection, as it has committed itself to greater liability in the freight contract concluded by it. If the performing carrier wants to avoid a claim by the injured party from the assigned right, it must not accept a higher liability towards its contractual partner. It is fundamentally free to structure the content of the legal relationship that is relevant for it so that, in the event of loss or damage to the transported goods, it is only responsible for the damage caused to its client or the recipient, but not for damage to third parties.

The legislature also assumes that cases of third party damage liquidation are conceivable, as it expressly mentions this in the grounds of the Transport Law Reform Act (BT-Drucks 13/8445, p 75). These are cases in which the injured party cannot demand all of the damage actually incurred from the performing carrier, but can only claim this to the extent that it has agreed with its contractual partner, the main carrier (Thume, VersR 2000, 1071, 1078). As a result, the remaining damage remains with the injured party. If the main carrier has a further claim with regard to this residual damage against the subcontractor commissioned by it, it is not only entitled to claim by way of third-party damage liquidation, but according to the contract it has concluded with the shipper in accordance with § 667 BGB it is even obligated to demand the excess difference from the performing carrier (Thume, VersR 2000, 1071, 1078).

The provision of § 437(2) HGB, to which the appellate Court also referred to support its opinion, does not conflict with this assessment, as it does not apply to sea freight law. In addition, the provision only applies to the objections to the legal claim of the injured party in § 437(1) HGB and not to an assigned contractual claim from the sub-freight contract in which the performing carrier has assumed greater liability than the main carrier (Valder, TranspR 1998, 51, 57; Knorre, TranspR 1999, 99, 100; Thume, VersR 2000, 1071, 1078). A general 'legal assessment' to the effect that the performing carrier should always be able to invoke the limitations of liability to which the main carrier is entitled, cannot be inferred from § 437(2) HGB, as the mention of the legal institution of third-party damage liquidation in the justification for the Transport Law Reform Act clarified (BT-Drucks 13/8445, p 75 ).

On the other hand, the appeals against the appellate Court's assumption that the defendant's liability is limited to a maximum of 109,580 SDRs in accordance with § 660(1) HGB are unsuccessful. According to this provision, the carrier is liable up to a maximum of 666.67 units of account per piece of freight or up to an amount of two units of account for each kg of the gross weight of the damaged goods, whichever is higher. According to § 660(1)(2) HGB, the unit of account is the International Monetary Fund's SDR. According to the findings of the appellate Court, which were not challenged, the three trucks carried by the defendant weighed a total of 54,790 kg. According to § 660(1) HGB, this results in a maximum liability for the defendant amounting to 109,580 SDRs.

Pursuant to § 660(3) HGB, however, the carrier loses the right to any limitation of liability 'if the damage is due to an act or omission which the carrier has committed with the intention of causing damage or which it has committed recklessly and with the knowledge that damage is likely to occur'. As this Court decided after the appeal judgment was announced, the limitations of liability according to §§ 658, 659, 660(1) HGB according to § 660(3) HGB only apply if the carrier is at fault. The provision of § 607(1) HGB does not apply in the context of § 660(3) HGB (BGHZ 181, 292 ff). If the carrier is a legal person or a corporation, the loss of the right to limitation of liability requires a qualified fault on the part of the defendant's organs, in this case the general partners of the defendant (see BGH, ruling of 3 November 2005 - I ZR 325/02, TranspR 2006, 35, 37 (CMI1092)).

The Court of Appeal held that the defendant's general instructions regarding stowage planning at a management level were sufficient, and meant that there was no qualifying fault under § 660(3)HGB. This assessment stands up to review. The plaintiff has not shown that the defendant's corporate partners were responsible. The appellate Court correctly found that the control of whether the instructions given by the defendant were adhered to did not have to be planned at management level, but could also be left to 'executives'. In the absence of a qualified culpability on the part of the defendant's corporate partners, the appellate Court thus, without any legal error, denied the requirements for the elimination of the liability restrictions in accordance with § 660(3) HGB.