The plaintiff, an insurance company, claimed against the defendant, a freight forwarding company which arranged the return transport of a geophysical field laboratory from Tunis to Germany. The field laboratory, built into a 30-foot special container, was transported by sea from Tunis to Genoa, where it arrived on 9 December 1998, and was taken over on 11 December 1998 for return transport by truck. When it arrived on 14 December 1998, the container had already incurred clearly visible exterior damage. Its interior was largely destroyed.

The plaintiff contended that the location of the damage was unknown and that the defendant was therefore responsible for the damage according to the liability regime that was most favorable to the plaintiff. Limitation of liability would not benefit the defendant because, due to the variety of conceivable sequences of events, there were insufficient starting points for the examination of the degree of fault. The plaintiff put the amount of damage caused to the field laboratory at DEM 255,562 and demanded payment of this amount as well as the costs of the assessment in the amount of DEM 2,944.01 plus interest. The defendant countered the lawsuit.

The Regional Court upheld the claim with the exception of part of the interest. The appellate Court dismissed it except for an amount of EUR 22,144.50 (= DEM 43,310.88 DM) (OLG Celle TranspR 2003, 253). The plaintiff continues to pursue its unsuccessful appeal in the amount of EUR 110,027.52 plus interest. The defendant claims that the appeal should be dismissed.

Held: Appeal dismissed.

The appellate Court correctly found that German law applies, based on the fact that both the insured and the defendant are based in Germany and that the place of unloading was also located there, which was not invalidated by the other circumstances: § 28(4) EGBGB [Private International Law Act]. Besides, nothing contradicts the fact that the contract has the closest connection with Germany and for this reason alone is subject to German law according to § 28(1)(1) EGBGB.

The Court of Appeal rightly found that the defendant's liability for the damage incurred is based on sea carriage law. The appellate Court considered it to be proven that the damage to the container had already occurred when it was loaded onto the truck on the return journey in Genoa. This assessment is not challenged on appeal. The appellate Court rightly found that the sea route in Genoa did not end until the container was loaded onto the truck. The question of whether the handling of goods in a seaport terminal is an independent section in terms of § 452(1) HGB [Commercial Code] is not regulated by law. Their treatment is controversial in the case law of the lower courts as well as in the literature. It is to be answered in the negative at least for those cases in which - as in this case - there are no special circumstances in this regard.

This is supported by the consideration made by the appellate Court that unloading from the ship and storage and any relocation in the port area are characteristic of sea transport involving containers and therefore have a correspondingly close connection to the sea route. In addition, the opposite view leads to an extensive elimination of the liability provisions of maritime trade law. Control of the container and especially its contents does not normally take place when unloading from the ship, but at the earliest when the container is to be removed from the terminal. At this point, however, it will often no longer be possible to determine whether damage occurred on the ship or on the terminal premises.

The appellate Court assumed, equally without errors of law, that the defendant was not liable for the full loss in accordance with § 660(3) HGB. The principle that the burden of presentation and proof lies with the claimant for the special requirements of unlimited liability of the freight forwarder is alleviated by the fact that the freight forwarder, acting in good faith (§ 242 BGB [Civil Code]), should as far as is possible and reasonable present in detail the circumstances of its scope of operations, because of the different levels of information available to the contracting parties (BGH, ruling of 5 June 2003 - I ZR 234/00, TranspR 2003, 467, 469; ruling of 25 November 2004 - I ZR 210/01, BGH-Rep 2005, 711, 712). This also applies within the framework of § 660(3) HGB.

This principle, which was developed for cases of loss, cannot, however, simply be transferred to those cases in which the transported goods were damaged in transit. In so far as the freight forwarder is at fault in this regard, the plaintiff has to explain and, if necessary, prove the actual requirements of the provision on which the claim is based and therefore in particular the existence of a breach of duty that has caused the damage (see BGH, judgment of 15 November 2001 - I ZR 182/99, TranspR 2002, 302, 305 = VersR 2003, 1007; judgment of 9 October 2003 - I ZR 275/00, TranspR 2004, 175, 176).

The opposite applies if the damage to the cargo is due to insufficient securing of the cargo (see BGH, ruling of 8 May 2002 - I ZR 34/00, TranspR 2002, 408, 409 = VersR 2003, 395). There are no indications of a loading error. According to this, the defendant would have had a burden of presentation and proof with regard to its operational area if, according to the plaintiff's submission, the damage was based on one of the defendants' faults in the loading of the field laboratory, analogously attributable to the defendant in accordance with § 487d HGB. According to the findings of the appellate Court, which remained unaffected in this respect, however, nothing has been put forward about how the damage occurred in detail and the damage profile does not allow any conclusions to be drawn about the lack of care that caused the damage.