The plaintiff was the cargo insurer of TL GmbH & Co KG. The defendant was involved in the multimodal transport of 28,545 kg of frozen pork ribs to the value of EUR 45,105 from Germany to the PRC. The shipment was transported in a refrigerated container, which was intended to ensure a temperature of -20 °C. On 10 May 2018, the shipment was loaded onto the ALC owned by shipping company C. During the sea transport, the container used was damaged in an unknown manner. It suffered major tears in the sheet metal. This caused the temperature inside to rise. A makeshift repair of the container was carried out on board, which made it possible to restore a lower cooling temperature.

On 26 June 2018, the container arrived in the PRC. On 27 June 2018, the container was taken to a cold storage facility to be unloaded. Discolouration of the meat and unusual smells were detected. Random temperature measurements showed temperatures of -3.5 to 0 °C. The shipment was destroyed on the instructions of the Chinese authorities. This resulted in disposal costs of EUR 18,484.50, which were invoiced to the plaintiff's insured.

TL GmbH informed the defendant by email on 27 June 2018 that the shipment had been written off and held the defendant liable for the damage. The defendant rejected this claim by email on the same day and refused to accept liability. The plaintiff compensated the insured in the amount of EUR 65,556.50. The plaintiff sued the defendant for this amount. The defendant, among other things, relied on the statute of limitations, whereby claims for cargo damage are time-barred after a year according to s 439.1 of the German Commercial Code (HGB).

Held: The admissible action is unfounded.

According to ss 439.1.1, 463 HGB, the limitation period for claims arising from transport, which includes claims pursuant to s 425.1 HGB and - via the reference in s 463 HGB - also claims pursuant to s 461.1 HGB, is one year. The limitation period begins with the delivery of the goods in accordance with s 439.2.1 HGB.

In this case, the shipment was delivered on 27 June 2018 in the PRC. The limitation period therefore ended on 27 June 2019. The email from TL GmbH dated 27 June 2018 did not result in a suspension pursuant to s 439.3 of the HGB due to the filing of claims for compensation, as the defendant refused to fulfil the claim by email on the same day.

The limitation period was also not suspended by the filing of the action in accordance with s 204.1.1 of the Civil Code (BGB). According to this, filing an action suspends the limitation period. The action is filed by serving the statement of claim: s 253.1 of the Code of Civil Procedure (ZPO).

The statement of claim was not served on the defendant until 23 July 2021, ie after the statute of limitations had expired.

The plaintiff cannot rely on the declaration of waiving the limitation period. This does not constitute a suspension or a new start to the limitation period. Rather, the waiver party is simply prevented from relying on the limitation period in the event of a lawsuit filed within the waiver period.

In this case, the plaintiff cannot successfully rely on the fact that the limitation period according to s 439.1.2 of the HGB is three years. This is not contradicted by the fact that, according to s 452a.1 of the HGB, liability is governed by the provisions on the sea freight contract, and the limitation period is therefore governed by ss 605 ff of the HGB, since the damage indisputably occurred during transport on the seagoing vessel. According to s 452b.2.2 of the HGB, even if the place of damage is known, the claims become time-barred at the earliest in accordance with s 439 of the HGB, ie if the requirements of s 439.1.2 of the HGB are met, at the earliest after three years. However, this three-year limitation period only applies in cases of intent or negligence equivalent to intent pursuant to s 435.

The plaintiff, who has the burden of proof for the existence of an exceptional limitation period of three years (Koller, Transportrecht, 11th ed, s 439 HGB, marginal no 30), has not presented or provided evidence of any facts that would justify such negligence. However, a secondary burden of proof on the defendant is to be assumed in this respect if circumstances are presented which suggest qualified negligence with a certain degree of probability (BGH TranspR 2013, 437). In view of the extent of the damage to the container (Koller, aaO, s 435, marginal no 21d, fn 479, with further references), this can still be assumed in the present case, although according to the photographs of the container submitted in evidence, it could be doubtful to what extent the damage could easily be recognised externally.

However, the Court is convinced that the defendant has met its secondary burden of proof in this case. In particular, it provided detailed information on the temperature monitoring system on the ship on which the container was damaged . With regard to the specific cause of the damage, it described its investigations into the shipping company C, and explained that a specific cause of the damage could not be determined. In this regard, it submitted an expert report in which 'extraordinary mechanical strains' are stated as the cause of the damage. Against this background, the Court does not consider it necessary or reasonable for the defendant to provide information on further circumstances. It is not clear what further inquiries it should undertake or present. To the extent that the defendant has not presented the temperature records of the container because, according to the defendant, the shipping company C would not release them, this does not prevent the defendant from fulfilling its secondary burden of proof. The defendant is not required to explain in every detail how the goods were damaged. The background to the secondary burden of proof is rather that the claimant, who has the primary burden of proof, has no insight into events in the opponent's sphere and is therefore not in a position to provide evidence. The party with the secondary burden of proof therefore does not have to provide more than the claimant needs in order to present its own case and, if necessary, offer evidence. In this respect, the defendant, who pointed out the existence of the temperature records and, according to the shipping company, presented their basic content - temperature rise during the sea voyage, makeshift restoration of the temperature - is not required to provide a more detailed description.

Given that the requirements for a three-year limitation period pursuant to s 439.1.2 of the HGB have not been met, it is irrelevant whether, with regard to this limitation period, the limitation period has been suspended pursuant to s 204.1.1 of the BGB.