The first plaintiff is the cargo insurer of the second plaintiff and claims damages from the defendant under its transferred and assigned rights. The second plaintiff ordered the defendant to ship a batch of seven large construction parts with a weight of 156.30 tons from Novi Sad, Serbia, to Bremen, Germany. The starting point for the contract negotiations was the request from the second plaintiff to the defendant with a message dated 11 July 2017 asking for quotes. The defendant replied by letters dated 23 and 30 August 2017. The intervener carried out the transport for the defendant. The goods were loaded onto a barge in Novi Sad, transported to Rotterdam and unloaded there. On 20 October 2017 they were then loaded onto the ocean-going vessel Wilson Dale for transport to Bremen. On 26 September 2017, the second plaintiff was charged a flat rate of EUR 41,000 for the first leg from Novi Sad to Rotterdam. On the day the goods were loaded in Rotterdam, the defendant also invoiced the second part of the flat rate amount of EUR 47,000. Both amounts were paid by the second plaintiff. After the Wilson Dale arrived in Bremen on 23 October 2017, it became apparent that the goods had been damaged in the course of sea transport. The damage was due to the goods not being properly stowed (lashed) in the Wilson Dale.

The plaintiffs argued that a multimodal freight contract was concluded with the confirmation of the second plaintiff on 1 September 2017. In this document, the breakdown of the freight according to the part of the route specified by the defendant was included. The partial freight offered with regard to the sea section was subject to the reservation 'fios excl. lsd netto' and 'excl. Lsdw' (LSD stands for 'lashed stowed dunnaged'; fios 'free in and out stowed'). The second plaintiff asked for uniform transport from Novi Sad to Bremen. Dividing the offer into two documents, one for each leg, could not change the uniformity of the overall transport. The second plaintiff ordered the transport over the two sections as offered, however, as the abbreviation 'PAU' confirms, at a flat rate of EUR 41,000 for the inland waterway section and a flat rate of EUR 47,000 for the sea section. The LSD reservation that the defendant made in the offer with regard to the sea route was therefore not accepted by the second plaintiff. The defendant did not object to this. The total amount of damage to the cargo is EUR 40,403.94. Since multimodal transport from Novi Sad to Bremen had been agreed between the defendant and the second plaintiff, the handling between the two sections, including the securing of the cargo on the ocean-going vessel, was the sole responsibility of the defendant.

The defendant filed a counterclaim against the second plaintiff for reimbursement of repair costs paid to the owners of the MV Wilson Dale in the amount of EUR 2,505.

Held: The admissible action is unfounded. The admissible counterclaim is unfounded.

Contrary to the view of the plaintiffs, there is no uniform multimodal freight contract, but two independent transport contracts have been concluded and the defendant was not responsible for securing the cargo on the seagoing vessel.

If the goods are transported on the basis of a uniform freight contract with different types of transport (multimodal transport) and if a separate contract has been concluded between the contracting parties for each part of the transport with one means of transport (partial route), and at least two of these contracts would be subject to different legal provisions, the provisions of §§ 407-450 HGB [Commercial Code] are to be applied to the contract pursuant to § 452 HGB, unless the following special provisions or applicable international Conventions determine otherwise. According to § 452 HGB, this also applies if - as in this case - part of the transport is carried out by sea.

However, the question of whether a real through freight contract or a multimodal contract has been concluded must be determined by interpreting the contractual declarations. A multimodal contract is provided if a person promises to transport the goods in such a way that they take over the goods at the point of departure and hand them over to the recipient at the point of delivery. If, on the other hand, each transport section is regulated by its own, independent freight contract, it is a so-called 'broken' or 'segmented' transport. There is also no uniform freight contract if the carrier only undertakes to transport over a part of the route and otherwise to arrange for the transport of the goods in the name of the shipper or in their own name on the account of the shipper for the following sections of the route through the involvement of other carriers (§ 453 HGB). In the case of 'self-entry' (§ 458), § 452 only applies if the freight forwarder provides or promises to provide transport on at least two sections with different types of its own means of transport (real self-entry). It is therefore sufficient for the reference from § 458 to § 452 if the self-entry also includes the handling activity for the following mode of transport. If the self-entry does not include the handling activity or if these are not included in the freight contract concluded for the account of the freight forwarder for the groupage network, there is no uniform, continuous freight contract.

From the point of view of the second plaintiff, it can be assumed that the defendant was aiming for uniform transport from Novi Sad to Bremen. However, with the order confirmations of 23 and 30 August 2017, the defendant did not submit a uniform offer for the entire route, as requested by the second plaintiff, but one for the inland route and another for the sea route. The latter contained the reservation 'fios excl. lsd'. The plaintiff did not accept these offers of the defendant as presented with the order of 1 September 2017 (Annex K3), but rather with the order submitted as Annex B3 on 1 Spetember 2017. Only this is signed by the second plaintiff and, in contrast to Annex K3, does not contain any deviations.

The defendant was not liable to the second plaintiff to secure the cargo on board the ocean-going vessel. According to the agreement, a 'fios' clause was included, which states that the shipper is also responsible for loading and stowing the goods. In addition, it was expressly agreed that the 'Isd' - lashing, securing, dunning - should not be carried out by the ship's crew because 'lsd' had been excluded ('excl. lsd'). This did not restrict the fios clause with the result that the shipper should not secure the cargo (LG Hamburg RdTW 2016, 422). The effect of the clause cannot be understood as being restricted only to the regulation of the costs of loading and stowage activities, but not also to the imposition of the respective responsibilities. Such a thing is possible. However, there is no indication of this in the agreement. Whether the defendant actually took over these costs internally within the framework of the flat rate is also not indicatively decisive in order to transfer responsibility for this liability to it. A fault in choosing the stevedores actually acting has not been shown.

The defendant is therefore not liable for damage to the cargo caused by inadequate load securing. Since the second plaintiff was not only responsible for securing the cargo on board the ocean-going vessel, but was also responsible for loading and stowing the goods according to the 'fios' clause in the agreement, there is also no claim for repayment in the amount of EUR 4,900. These costs were not covered by the flat-rate freight, but rather the services were either provided or commissioned or, as here, paid for separately.

The admissible counterclaim is unfounded, because the objection of the statute of limitations raised by the second plaintiff is effective. The claim for exemption from, or for, damages was already statute-barred at the time the counterclaim was submitted (8 March 2019). The one-year limitation period of §§ 452(1), 605(1) HGB applies. Even if the limitation period did not begin running on the delivery of the cargo in November 2017, the intervener submitted confirmation according to which it had instructed the shipping company of the ocean-going vessel Wilson Dale to pay the amount of EUR 2,505. This means that this payment was made before 8 March 2018. Therefore, the counterclaim must also be dismissed.