OB ordered 159 cartons (1,579 kg) of battery chargers from PT Ltd, Hong Kong, at a total price of USD 50,640. The defendant used MCCL Ltd for sea transport. The latter issued a bill of lading. OB was named in the bill of lading as the consignee of the cargo to be carried on the MC. The disputed goods were not delivered to the recipient. The defendant informed OB in a letter dated 17 July 2013 that OB had to reckon with a total loss of the shipment and the ship due to the wreck of the MC. The MC had an accident in the Arabian Sea on 17 June 2013. As a result, all the containers on board sank. The plaintiff is the cargo insurer of OB and claims under its transferred rights against the defendant as a fixed-cost forwarding agent in accordance with §§ 459, 498(1) HGB [Commercial Code]. Due to the number of packages, the application of § 504(1) HGB does not result in a limitation of liability. The plaintiff claims USD 62,396.40 plus interest.

The defendant disputes the plaintiff's standing, denies having been commissioned by OB GmbH as a fixed-cost forwarding agent within the meaning of § 459 HGB, and submits that the packing lists and corresponding invoices cannot serve as evidence of the alleged damage. In this respect, the lawsuit remains undecided with regard to the alleged amount of damage. In addition, the defendant denies that the shipment had a value of more than USD 50,640 upon arrival. In this respect, § 502(3) HGB assumes that the purchase price plus any transport costs reflect the value of the goods at the place of delivery. The plaintiff should explain why an increase in value of almost 25% would have occurred during the transport.

Even if the plaintiff were to be able to prove that the defendant was commissioned at fixed cost as well as for the complete handover, its liability would nevertheless be excluded according to § 498(2) HGB. The defendant is exempt from liability under § 498(2) HGB, since the loss of the goods is based on circumstances that could not have been averted by the care of a proper carrier. At the start of the fateful voyage, the MC was unseaworthy within the meaning of § 498(2) HGB. The lack of seaworthiness of the MC could not be discovered before the start of the voyage, even with the diligence of a proper carrier.

On 29 May 2013, the MC was subjected to a 'Special Survey' - an examination carried out every five years - by the classification society Nippon Kaiji Kyokai before the start of the voyage and received a classification certificate as part of this examination. Due to this investigation and due to the age of the ship, which was only launched in March 2008, the unseaworthiness of the MC could not be determined by a regular carrier before the start of the voyage.

According to the explanatory memorandum for § 498 HGB, when assessing the question of whether circumstances existed that could not have been averted by the care of a proper carrier, the special requirements for sea transport, including the conditions prevailing on board, and the special dangers of the sea are to be considered. In the present case, none of the three aspects allowed any conclusions to be drawn as to whether the ship was unseaworthy, which is also proven by the Interim Report of Committee on Large Container Ship Safety submitted by the Japanese Ministry of Transport in December 2013.

The Report shows that the MC had cracks in the base plate of cargo hold no 6 in the middle of the ship, which would ultimately have led to the penetration of water and caused the ship to break in two. For the time being, the experts assume that the crack started below the waterline and then rose from the floor slabs in cargo hold no 6. This was not apparent to either the MC or the defendant at the start of the voyage.

The MC was one of seven 'C series ships' that were all built by MHI to an identical design and construction. During investigations of these sister ships, deformations were also found in the floor slabs of five out of six ships, something that neither the shipping company nor the shipowner nor the defendant was aware of or could have detected when the MC set out on the voyage.

The AZ, a ship of the same series and size as the MC and also built by MHI, had deformations in the base plate about a year before the accident. The shipping company and the defendant were not aware of this. The classification society of this ship recommended a complete repair, but did not prohibit further operation of the ship after the damage had been temporarily repaired and the deformation had not intensified.

On the basis of the above, it was not apparent to either the shipping company or the defendant at the start of the voyage that the MC had a hidden defect in the floor panels. Rather, for the defendant and for all persons whose knowledge must be attributed to the defendant, the unseaworthiness of the MC could not be recognised when exercising the care of a proper carrier.

Alternatively, the defendant relies on the limitation of liability in § 504(1) HGB to 3,158 SDRs. This corresponds to a total of approximately EUR 3,632.

Finally, the defendant invokes the objection of the statute of limitations according to § 605(1) HGB.

Held: The plaintiff's action is admissible but unfounded.

In accordance with § 498(1) HGB, the carrier is exempt from its liability if the loss or damage is due to circumstances that could not have been averted with the care of a proper carrier. Since it is undisputed that the goods were carried on an unseaworthy ship, the defendant's right to be released from liability under § 498(2) HGB in the present case presupposes that the unseaworthiness was caused by a defect which could not be discovered at the start of the voyage when the diligence of a proper carrier is used. This requirement is met here.

It is undisputed that the unseaworthiness is based on a serious design flaw. The defendant is not responsible for this design error. The defendant was not able to detect the construction flaw when applying the care of a proper carrier at the start of the journey. The plaintiff does not claim that the defendant was aware of a design flaw.

The defendant is also not responsible for third-party negligence in accordance with § 501 HGB. Misconduct on the part of the ship's crew, which the defendant would also have to account for in accordance with § 501, is not to be assumed.

The actual draft readings at the start of the voyage were that the midship draft measured by the first officer was around 70 cm lower than at the stern and 55 cm lower than at the bow. From this the ship's command could at best conclude that the ship's hull was not tension-free and level in the water, but rather was bent; but not that the ship was operating beyond the limit of the structurally permissible load, as the plaintiff argues. Obviously it is not possible to infer directly from the extent of the deformation position (differences of 70 or 55 cm) whether the load limit had been exceeded or fallen below. Therefore, the still water bending moment was apparently estimated using a model at a deformation position of 0.63 m, which only resulted in a bending moment of 126% of the permissible value. From the bending moment of 126% alone, no conclusions can be drawn about the cargo distribution. Therefore, a corresponding calculation had to be made in order to arrive at a still water bending moment of 126%, which showed that 14% should have been removed in the area of the ship's center and at the same time the weights at the stern and bow should have been increased by 13% each. Only from this could one have drawn the conclusion that the loading weights were in truth not distributed that way, so that there should have been another cause for the deformation of the hull, namely a considerable weakening of the hull. Without a corresponding model and without a corresponding calculation method, the conclusion that the hull was significantly weakened could not be drawn. It is not evident that the ship's command had such a model or such a calculation method as used by the Japanese investigation commission, and this is not submitted by the plaintiff.

Rather, despite the determination of the deformation position on the basis of the measured values of the actual draft, the ship's command was able to assume that the structurally permissible load limit had not been exceeded, because they determined at the same time that the bending, shearing, and torsional forces were 99%, 93% and between 70-73%, which with regard to the bending forces roughly corresponds to 103% of the allowable design value. This is also not contradicted by the fact that the ship's command used a computer programme ('Power Stow') during loading that was not certified for this ship by the classification society. Because from this alone it cannot be concluded that the programme was unsuitable for loading the MC. This is also confirmed by the chief officer, who, according to his statements, compared the values of the certified 'Load Com' programme in each port with those of the 'Power Stow' programme and found only very minor deviations, with the result that the values of 'Power Stow' were roughly 1% lower than those of 'Load Com'.

Any misconduct by the classification society is not to be attributed to the defendant in accordance with § 501 HGB. According to § 501(2) HGB, the carrier is only responsible for those persons whom it uses to carry out the transport. It is therefore not sufficient that the person concerned was only generally entrusted with enabling the ship to be used for future transports. The classification society is very far from transporting a container. Its activity is a prerequisite for a transport, but it is not active in the execution of the transport order. Accordingly, the carrier's liability for any fault on the part of the classification society must be denied (see LG Hamburg, judgment of 02.10.2014 - 409 HKO 35/14, TranspR 2014, 387 (CMI1122); LG Hamburg, judgment of 28 August 2014 - 409 HKO 5/14, TranspR 2014, 385 (387)).

With regard to the shipyard, the above statements also apply accordingly.