The plaintiff was an international office forwarder. The defendant was a packaging and logistics company. At the beginning of 2013, the plaintiff received an order from E to transport machine parts from Hamburg, Germany to South Korea. The plaintiff subcontracted the packaging services to the defendant.

The defendant offered to pack the machine parts in boxes made of 10/13 mm plywood to AW100 glued several times waterproof with longitudinal and lower runners, cross cants to fix and brace the boxes, to make markings, and apart from that to comply with the HPE standard, as well as corrosion protection by preservation of the packaged goods in the form of sealing in aluminium compound foil, with the addition of a sufficient quantity of desiccant for a transport and storage period of 12 months.

The parts were delivered to the defendant's depot on 25 April 2013. The packaging took place on 7 May 2013. Meanwhile, the parts were stored in the outside area of the defendant's depot, at least temporarily covered by a tarpaulin construction.

On arrival of the parts in Korea, water accumulation in the form of 'water bags' on the aluminium packaging and water inside the packaging was found, and considerable corrosion of the machine parts was observed.

Having been sued by the buyer in Korea, E was reimbursed by its insurer, who in turn sued the plaintiff for damages of EUR 150,031.02 (EUR 146,228.52 for the corrosion damage and EUR 4,526.17 for expert costs) in an action before the Hamburg Regional Court (Case No 401 HKO 48/14).

The plaintiff sought indemnification from the defendant.

Held: Judgment for the plaintiff.

It is presumed that the goods were handed over to the defendant - still unpacked - in a dry state, but were then at least partially stored in the open and finally, after being packed by the defendant, transported by it in a packed state to the port of Hamburg for shipment on the ocean-going vessel. In the light of the examination carried out by the defendant itself after delivery to the parts to it, the Court does not assume water contamination prior to arrival at the defendant's depot or tampering by third parties, as alleged by the defendant. With reference to the private expert opinion submitted by the plaintiff, the Court further assumes that the water in the packaging is rainwater from Hamburg. In the light of this, the water contamination can only be attributed to the storage period at the defendant's premises, either because the defendant left the goods unpacked and insufficiently protected from rain on its premises, and then packed them damp or wet, or because it packed the goods inadequately, which allowed rainwater to reach the goods through the packaging.

It was known to all parties involved that a longer shipment of, among other things, large metal parts was involved. The defendant's argument that it could not have foreseen the object's susceptibility to rust is unsubstantiated, especially in the light of the corrosion protection agreement. The defendant itself states that such an agreement, for example in the form of the desiccant method, serves to prevent rust on the goods in transit. The defendant’s awareness of the packaged goods' susceptibility to rust is also shown by the fact that, according to the defendant's own submission, it tried to protect the slab outside at least temporarily from the weather, in particular from the effects of rain, by means of a watertight tarpaulin construction.

The packaged goods were thus obviously sensitive to moisture and susceptible to rust. The agreement on corrosion protection shows that the intention of the contract was to protect the goods from the effects of water through the packaging, regardless of whether condensation, rainwater or seawater was involved. Water resistance was thus recognisably agreed upon, irrespective of the meaning of the non-legal term 'seaworthy'. Thus, the defendant at least owed waterproof packaging. This logically includes the packaging of a dry object in a way that is sufficient to keep it dry. Only in this way can corrosion protection be effectively guaranteed.

Due to contradictory contractual clauses, the defendant's liability for damages due to a defect in the packaging is not effectively limited to EUR 100,000. The claim is not time-barred.

[For the unsuccessful appeal against this decision, see Hanseatisches Oberlandesgericht Hamburg 6. Zivilsenat, Urteil vom 24.01.2019, 6 U 277/15.]