The plaintiff is the transport insurer of VI. After settlement of VI's insurance claim due to misdirection of transport goods, the plaintiff asserts claims for damages that have been transferred and assigned to it by VI. On 19 March 2010, VI commissioned the first defendant to carry out a transport of air cannon parts at fixed cost, packed in three packages with a total weight of 1,585 kg, from Duisburg to Jeddah in Saudi Arabia. Part of the land transport was carried out by HZ. The first defendant transferred the sea transport to Cyprus-based SL Ltd, which was represented by its German agent, Saco. Saco commissioned the second defendant, a container-packing company based in Hamburg, to take over the transported goods and reload them into sea containers.

HZ delivered the goods to be transported to the second defendant on 22 March by truck. It was found there that the consignment was not marked with the marks necessary for sea transport to Saudi Arabia. In response to a reference from the second defendant, the first defendant informed VI, who then commissioned the first defendant to have the necessary marking carried out. Saco forwarded the marking data together with the order to the second defendant to mark the transported goods against payment of a separate fee. The second defendant got confused with another consignment consisting of two packages, also delivered by HZ, unmarked and intended for transport to India. VI's cargo was shipped to India; the other cargo that was subsequently marked by the second defendant reached Saudi Arabia. Those involved did not succeed in getting the misdirected goods back to VI.

The plaintiff claims against the defendant for compensation for the value of the lost goods in the amount of EUR 24,121.88 plus interest. The plaintiff argues that limitations of liability do not apply because the loss of the goods is based on a qualified fault on the part of the second defendant which must be attributed to the first defendant. The Regional Court only considered the action against the first defendant and only in the equivalent of 2 SDRs per kg of goods transported and thus in the amount of EUR 3,546.34 plus interest, and otherwise dismissed the action. The plaintiff's appeal was unsuccessful (OLG Cologne, TranspR 2015, 121).

Held: The judgment of the 3rd Civil Senate of the Cologne Higher Regional Court of 5 September 2014 is overturned. The matter is referred back to the appellate Court for a new hearing and decision.

The appellate Court's finding that the plaintiff only has a claim to compensation for damages in the amount of 2 SDRs per kg of the lost transport goods against the first defendant does not stand up to legal review. The appellate Court correctly found that the contractual relationship between VI and the first defendant is to be judged according to German law. It also rightly found that the first defendant is fundamentally liable to VI for the loss of the goods in transit; however, its finding that this liability is limited in amount does not stand up to legal scrutiny.

The first defendant is liable to VI for the loss of the goods in transit. It can be left open whether this liability arises from the regulations of land freight law (§ 425 HGB [Commercial Code]) or sea freight law (§ 606 HGB (old version)). VI and the first defendant have concluded a forwarding contract at fixed cost within the meaning of § 459 HGB. The appellate Court rightly assumed that §§ 452, 452a HGB apply to this forwarding contract with regard to the transport, because the first defendant had to arrange multimodal transport (see BGH, judgment of 13 September 2007 - I ZR 207/04, BGHZ 173, 344; judgment of 18 June 2009 - I ZR 140/06, BGHZ 181, 292 (CMI1091); judgment of 11 April 2013 - I ZR 61/12, TranspR 2013, 437). The transport of the goods would be carried out with different modes of transport (truck, ship) pursuant to the uniform forwarding contract. Transport with the respective modes of transport would have been subject to different legal provisions if separate contracts had been concluded for them. The transport by truck from Duisburg to Hamburg would have to be assessed according to the regulations of land freight law (§§ 425 ff HGB). For the transport by ship from Hamburg to Jeddah, Saudi Arabia, the provisions of sea freight law in the version still relevant in the event of a dispute and valid until 24 April 2013 (§§ 556 ff HGB (old version)) would apply.

If, in the case of multimodal transport, it is certain that the loss has occurred on a certain section of the route, liability according to § 452a HGB is determined by the legal provisions that would apply to a contract for transport on this section. Otherwise, liability in accordance with § 452(1) HGB is based on land freight law. According to § 452 HGB, this also applies if part of the transport is carried out by sea.

The appellate Court found that the liability of the first defendant was generally based on sea freight law. The loss of the goods occurred on the sea route. The sea route had started after the delivery of the goods by the land carrier to the second defendant. The second defendant was involved in reloading the cargo for sea transport into containers. This activity has a close connection to the following sea route. Therefore, the reloading process should be judged according to sea freight law.

It can remain open whether the objections raised by the appeal against this assessment are justified. For liability purposes, it does not matter whether the first defendant is liable under sea freight law or land freight law. According to sea freight law (§ 606 HGB (old version)), the carrier is liable for the damage caused by the loss of the goods in the period from acceptance to delivery, unless the loss is due to circumstances that the care of an ordinary carrier could not have averted. According to land freight law (§ 425 HGB), the carrier is also liable for the damage caused by the loss of the goods in the period from acceptance for transportation to delivery. The Court of Appeal's assumption that these requirements are met in the event of a dispute does not reveal any legal error.

The appellate Court has also rightly found that the liability of the first Defendant is limited to 2 SDRs per kg. However, a qualified fault on the part of the first defendant's servants or agents leads to the unrestricted liability of the first defendant.

According to the findings of the Court of Appeal, the German Freight Forwarders' General Terms and Conditions (ADSp) in the version dated 1 January 2003, which is still relevant in this case, are incorporated into the contract concluded between VI and the first defendant. According to cls 23.1 and 23.1.3 ADSp, the liability of the freight forwarder in the event of loss of or damage to goods is limited to 2 SDRs per kg in a transport contract for transport by various modes of transport including sea transport. The forwarding contract concluded between VI and the first defendant provided for the goods to be transported by various modes of transport from the outset, including transport by sea. For the application of cl 23.1.3 ADSp, it does not matter whether the location of the damage is known and on which section of the route - land or sea - the damage occurred. Unlike cl 23.1.2 ADSp, cl 23.1.3 ADSp does not focus on whether the damage to the goods occurred during the transport process with a specific mode of transport. Rather, it is decisive whether a multimodal transport including sea transport has been agreed. If this is the case, as here, cl 23.1.3 ADSp, compared to cl 23.1.2 ADSp, is a lex specialis (BGH,TranspR 2013, 437). The result can be left open as to whether the maximum liability amounts of the sea freight law (cf § 660(1) HGB (old version)) are accepted or the maximum liability amounts of the land freight law (§ 431(1), (4) HGB) are modified.

According to cl 27.2 ADSp, this limitation of liability does not apply if the damage in terms of §§ 425 ff, 461 (1) HGB was caused by the persons named in §§ 428, 462 HGB either intentionally or recklessly and with the knowledge that damage is likely to occur. Accordingly, cl 27.2 ADSp allows multimodal transports including a sea route in the cases of §§ 425, 461(1) HGB to break the limitation of liability. Unlike § 660(3) HGB (old version) a qualified fault on the part of the freight forwarder's servants or agents is sufficient. The result - subject to the applicability of sea freight law - is a deviation from the statutory liability regulations to the detriment of the first defendant as the user of the general freight forwarding terms and conditions. Such a deviation is permissible according to § 449(2)(2) HGB (old version) (see BGH, Judgment of 22 July 2010 - I ZR 194/08, TranspR 2011, 80).

Contrary to the opinion of the appellate Court, on the basis of the findings made so far, a qualified fault on the part of the second defendant, which has to be attributed to the first defendant according to cl 27.2 ADSp, cannot be denied. According to this, the basis for the finding of the appellate Court that the liability of the first defendant is limited to 2 SDRs per kg according to cls 23.1 and 23.1.3 ADSp is also removed.

The transhipment of goods in transit is particularly susceptible to damage and must therefore be organised in such a way that the incoming and outgoing goods are checked so that shortages can be identified at an early stage. Without sufficient incoming and outgoing controls, which usually require a physical comparison of the goods recorded on paper or by computer, a reliable overview of the route and whereabouts of the goods arriving and departing at the individual transshipment stations cannot be obtained, so that the point of damage and the extent of damage cannot be limited in terms of time, space and personnel. The requirement for interface controls is increased when legally independent third-party companies are involved in providing the transport service. (BGH, Judgment of 25 March 2004 - I ZR 205/01, BGHZ 158, 322; Judgment of 22 May 2014 - I ZR 109/13, TranspR 2015, 33; see also cl 7 ADSp).

As a matter of principle, the plaintiff has to present the requirements for the discontinuation of the legal or contractual limitations of liability in favour of the carrier, and to prove them if necessary. The plaintiff therefore bears the burden of demonstration and proof that the carrier or its people acted wilfully or recklessly and with the knowledge that there would be a likelihood of damage. The burden of presentation and proof incumbent on the plaintiff can, however, be alleviated by the fact that, in view of the different levels of information of the contracting parties, the carrier is required in good faith, as far as is possible and reasonable, to present the circumstances of the damage event in detail. Such a secondary burden of proof on the part of the opposing party must be affirmed if the statement of claim suggests a qualified fault with a certain probability, or if there are indications of such fault from the undisputed facts. In this case, the carrier has to substantiate what care it has specifically taken to avoid the damage that has occurred. If it does not comply, a conclusion of qualified fault can be justified according to the circumstances of the individual case (BGH, judgment of 13 June 2012 - I ZR 87/11, TranspR 2012, 463). These principles apply accordingly to the liability of the freight forwarder.

According to these standards, the appellate Court took from the undisputed facts and the submissions of the plaintiff sufficient indications for a qualified fault of the second defendant without errors of law. While in the custody of the second defendant, it is undisputed that VI's goods destined for transport to Saudi Arabia were confused with a consignment destined for transport to India. It is undisputed that the second defendant affixed the marking intended for VI's shipment to the shipment intended for transport to India. According to the plaintiff's submission, the second defendant did not compare the shipments with the delivery documents, on the basis of which the identity of the goods could have been determined both during an incoming and outgoing inspection. The plaintiff submitted that the goods could be identified on the basis of the packing slips attached to the packages, on which the destination of the goods was also indicated.

The appellate Court found that the operational procedures at the second defendant, as set out by the defendants, basically guaranteed that goods cannot be confused; the second defendant could therefore not be accused of qualified fault. The plaintiff rightly complains that the appellate Court made insufficient demands on the control measures necessary to avoid loss of goods. If the markings usually attached to the packages - as the appellate Court has found - enabled the consignments to be correctly assigned to the respective destinations and their lack therefore created a particular risk of misdirection and confusion with other unmarked consignments, the second defendant would only have had a proper operational organisation if it required that unmarked shipments be subjected to special treatment and, for example, compared details with the delivery papers or packing slips. This would apply even more if, as the defendants claim, VI's goods were not only delivered without any marking, but without any identifying markings on the packages. It therefore justifies a charge of reckless behaviour if the second defendant relied solely on the assignment of the unmarked goods to the respective destinations made by the delivery driver. According to its own submission, the second defendant did not compare the number of items, dimensions and weight of the consignments delivered to it with the delivery papers, neither when they were delivered by truck nor when loading the consignments into containers. Such a comparison was also omitted when VI's shipment was re-marked.

As far as the action directed against the first defendant is concerned, the appellate Court will have to re-examine whether it is responsible for a qualified fault on the part of the second defendant and is liable to a greater extent for the damage that has occurred. Since the plaintiff has put forward sufficient indications for the existence of a qualified fault on the part of the second defendant and, based on the previous submissions of the defendant, it cannot be assumed that the second defendant complied with its control obligations, it can be assumed that there is a gross lack of organisation. Under these circumstances, it is fundamentally up to the first defendant to present the circumstances arguing against the causality of the organisational deficiency and to prove them if necessary (BGH, judgment of 15 November 2001 - I ZR 122/99, TranspR 2002, 448; Judgment of 30 January 2008 - I ZR 146/05, TranspR 2008, 117). The Court of Appeal will therefore have to investigate in particular the defendant's contested submission that the second defendant was unable to notice the incorrect assignment of VI's shipment intended for Saudi Arabia by the driver of HZ.

The appellate Court will also have to re-examine whether the plaintiff's claims for damages arising from VI's rights against the second defendant based on its transferred rights are possible. It will have to be considered whether the orders given to the second defendant for reloading and marking VI's shipment are to be regarded as contracts with protective effect in favour of VI (on the requirements of a contract with protective effect in favour of third parties, see eg BGH, judgment of 7 May 2009 - III ZR 277/08, BGHZ 181). A claim against the second defendant by VI in accordance with the principles of third party damage liquidation is out of the question according to the findings of the Court of Appeal so far. The appellate Court did not find that the client of the second defendant had assigned its claims against the second defendant to VI (cf BGH, judgment of 18 March 2010 - I ZR 181/08, TranspR 2010, 376 (CMI1109); judgment of 22 January 2015 - I ZR 127/13, TranspR 2015, 167).