As the insurer of L, the plaintiff asserted under its assigned rights claims against the defendant due to the loss of two crane towers and a crane boom during sea transport at the end of 2009 from Rostock to Illichevsk (Ukraine). The defendant, commissioned by L to carry out the transport, engaged the intervener M, who in turn commissioned the intervener A to carry out the transport. The defendant counterclaimed and demanded compensation from the plaintiff for the damage that the interveners allegedly suffered as a result of insufficient securing of the cargo. The Regional Court partially ruled against the defendant and dismissed the rest of the action and counterclaim. The plaintiff's appeal and the defendant's cross-appeal oppose this.

L and the defendant had a business relationship with each other before the transport at issue. The defendant carried out several transports without damage for L. A few months before the disputed transport in December 2009, however, there was an incident. In October 2009, L commissioned the defendant to transport a mobile harbour crane from Rostock to Türkiye. The tower and boom were damaged in heavy seas. The transport damage was the subject of proceedings relating to 6 U 24/13 (judgment of the Regional Court of 11 February 2013), which was ended by settlement before the Hanseatic Higher Regional Court.

The event at issue is based on the following facts: L had sold two mobile port cranes to a buyer in the Ukraine, I, for EUR 2,900,000 each. The final assembly took place in Rostock by L Rostock. L issued a transport order to the defendant for a flat rate of EUR 192,500. In the order letter dated 16 November 2009 it said among other things: 'Lashing / securing / dunnage in R, as well as unlashing in the receiving port at the expense of the shipping company'. The letter also states: 'Only the towers, the boom sections and the 20 ft container may be loaded on deck, the rest of the goods must be stowed below deck. The deck cargo must be secured with chains.' The defendant commissioned the intervener M to carry out the transport, which in turn engaged the intervener A. The loading of the cranes onto the MS Ara Z took place on 16 December 2009 by L Rostock in co-operation with K. The crane towers and the boom were stowed on deck on wooden substructures from K and secured with chains. The chains were put on by members of the ship's crew. Lashing points were not marked on the towers. On 17 December 2009, the Ara Z commenced the journey. The defendant announced on 24 December 2009 that the ship had lost both towers and the boom in heavy seas.

In its judgment of 11 October 2016, the Hamburg Regional Court held the defendant partly liable to pay the plaintiff EUR 188,781.51 plus interest, and dismissed the counterclaim. Both parties appealed and cross-appealed.

Held: The plaintiff's appeal and the defendant's cross-appeal are both admissible and partly justified. The claim for payment asserted by the plaintiff is given in the maximum amount of liability under § 660(1) HGB [Commercial Code] (old version) minus an amount of EUR 28,753.32 which the defendant has set off.

The plaintiff's admissible appeal is justified in so far as it can demand from the defendant not only - as assumed by the Hamburg Regional Court - half of the maximum amount of liability, but the full amount in accordance with § 660(1) HGB (old version) (plus default interest). The plaintiff is not entitled to any further claims against the defendant.

The defendant has custody liability. According to § 606 HGB (old version), the carrier is liable for the damage caused by loss of or damage to the goods in the period from acceptance to delivery, unless the loss or damage is due to circumstances that could not be averted by the due diligence of a regular carrier. The factual requirements of § 606 HGB (old version) are fulfilled here.

It is undisputed that the defendant acted as a carrier. According to § 278 BGB [Civil Code], it is responsible for the fault of the two interveners and the ship's crew of the MS Ara Z to the same extent as its own fault. According to § 606 HGB the defendant was fundamentally obligated to proceed with the care of a proper carrier when loading, stowing, transporting, handling, and unloading the goods.

From the bill of lading dated 17 December 2009 it cannot be deduced that the stowage and securing of the goods were the responsibility of the policyholder as the shipper. The bill of lading states: 'SHIPPED ON DECK AT CHARTERERS SHIPPERS AND RECEIVERS RISK EXPENSE AND RESPONSIBILITY WITHOUT LIABILITY ON THE PART OF THE VESSEL OR HER OWNERS FOR ANY LOSS DAMAGE EXPENSE OR DELAY HOWEVER CAUSED'. However, the issuer of the bill of lading was not the defendant, but the intervener M. Who had to fulfil which obligations can be determined by interpreting the order dated 16 November 2009, taking into account the other circumstances. According to this, L as the freight broker, or K engaged by L, had the task of loading and stowing the cargo in Rostock. On the other hand, it was the responsibility of the defendant, as the carrier or its assistants, to secure the cargo (with chains). In the order of 16 November 2009 it says in bold: 'Basis: fios, sshex uu, lsd by the ship's crew' and 'Lashing / securing / dunnage in Rostock, as well as unlashing in the receiving port at the expense of the shipping company'. The letter also states: 'Only the towers, the boom sections and the 20 ft container can be loaded on deck, the rest of the goods have to be stowed below deck. The deck cargo must be secured with chains.'

The agreement 'fios' means that it is not the carrier but the shipper who must stow and secure the goods. However, the parties immediately restricted the 'fios' agreement by agreeing 'lsd by the ship's crew'. In doing so, they made it clear that it should be the responsibility of the defendant to secure the cargo by the ship's crew. That this corresponded to the intention of the contracting parties is confirmed by the wording 'Lashing / securing / dunnage in Rostock, as well as unlashing in the receiving port at the expense of the shipping company' added in the following text. The 'lsd' is not expressly assigned to the defendant, but to the 'ship's crew' or the 'shipping company'. However, it was intended (according to the undisputed submission of the plaintiff) to express that the defendant should acquire the power to pass on its obligation. The fact that the defendant itself assumed that it was obligated to secure the cargo results from the fact that on 12 November 2009 (in its own name) it made its booking confirmation with the intervener M and others stating: 'Deck cargo is to be lashed / secured with chains'. The confirmation does not contain any indication that L would provide security.

The defendant did not contest the above interpretation by the Hamburg Regional Court in its response to the plaintiff's appeal. It submits that K actually specified the execution of the stowage and securing of the goods. However, the defendant does not deny that it contractually provided for a security obligation.

After acceptance and before delivery of the crane elements, the goods were lost. Both towers and the boom went overboard on the way from Rostock to Ukraine. The loss could have been averted by exercising the care of a prudent carrier. The crane elements could have been secured in such a way that they were not lost even in heavy seas.

The defendant's custody liability as a carrier in accordance with § 606(1) HGB (old version) coincides with the defendant's non-liability in accordance with § 608(1) HGB (old version). According to this provision, the defendant, as the carrier, is not liable for damage resulting from the acts or omissions of the shipper or the owner of the goods, its agents or representatives. In the meantime, the parties agree that the loss of goods was in any event not caused solely by the defendant or 'its people' but that the behaviour of K, which was attributable to the plaintiff's policyholder, at least contributed to the occurrence of the damage. Irrespective of the fact that the defendant can rely on the presumption of § 608(2) HGB (old version), it is clear from the evidence that the loss of cargo is also due to the damage caused by K.

According to the technical findings of the expert, there are two possible causes for the damaging event: (1) the improper stowage of the crane segments on wooden blocks as a substructure, which were provided by K; and (2) the improper securing of the cargo on deck by the ship's crew. The supports for the crane segments were not designed properly. Softwood was used instead of hardwood. Furthermore, the timbers should have been correctly connected to each other with angle iron, placed on the edge and stopped at the bottom. The deck cargo was not secured and lashed properly. On the one hand, the chains were inadmissibly guided over curves and edges. On the other hand, if the chains were used on deck, lashing points or straps as well as tensioning screws and not chain tensioners should have been used. In addition, the cargo was stored on the hatch cover.

If the carrier's liability from § 606 HGB (old version) coincides with the carrier's non-liability according to § 608, this leads to causal and culpability contributions for the loss of cargo between the plaintiff's policyholder, on the one hand, and the defendant, on the other hand, being assessed at a ratio of 70 to 30 per cent. It is not justified to apportion responsibility exclusively or 100 per cent with the policyholder of the plaintiff or the defendant. As to the interveners, this Court still considers it justified to apportion the liability as the Regional Court did, at 50 per cent each. The main responsibility for the loss of the goods, taking into account the overall circumstances, lies with the plaintiff's policyholder. The main cause of the loss of cargo lies with the supports supplied by K.

The scope of the compensation to be paid by the carrier according to § 606 HGB (old version) is determined according to § 658 HGB (old version). According to this, the carrier is particularly obligated to reimburse the damage caused by the loss of the cranes and the trailer (in heavy seas). However, § 660(1) HGB (old version) provides for a maximum liability amount, which here corresponds to 326,000 SDRs (= 2 units of account x 163,000 kg, with each crane tower accounting for 74,500 kg and the headpiece for 14,000 kg).

The defendant has not lost its right to limitation of liability under § 660(1) HGB (old version) in accordance with § 660(3) HGB (old version). The damage is not due to an act or omission that the defendant, as the carrier, committed recklessly and with the knowledge that damage would be likely to occur. The Regional Court established this with appropriate considerations. Section 660(3) HGB (old version) requires the presence of recklessness and the awareness of the likelihood of damage occurring. What is required is a realisation that is forced upon the agent from its reckless behaviour that damage is likely to occur. The plaintiff must explain and, if necessary, prove the requirements for the discontinuation of the statutory or contractual liability limitations in favour of the carrier (BGH, judgment of 22 November 2007 - I ZR 74/05, BGHZ 174, 244; judgment of 13 January 2011 - I ZR 188/08, TranspR 2011, 218 Rn 15 = VersR 2011, 1161). It did not succeed in this.

First, it must be taken into account that, according to § 660(3) HGB (unlike §§ 435, 428 HGB), only qualified fault on the part of the carrier or its organs [ie managing directors] leads to elimination of limitation of liability under § 660(1) HGB (old version) (BGH, judgment of 18 June 2009 - I ZR 140/06, BGHZ 181, 292-303 (CMI1091); also BGH, ruling of 29 July 2009 - I ZR 212/06 (CMI1112). The defendant can therefore only be charged with any organisational fault if, on the one hand, it recklessly closed itself off from the knowledge that the loading and securing of the crane elements as carried out did not meet the expected requirements, and on the other hand, was aware of the probability of damage. In contrast, negligence or damage prognoses by other persons (auxiliary persons) are irrelevant. Carelessness or assessments of a possible occurrence of damage by employees of L Rostock, K or the ship's crew are not important. The focus is not on errors or omissions in the loading process on 16 December 2009, which the defendant was not concerned with as an organisation, but on the question of whether the defendant has neglected the required instructions or monitoring. Careless action by the defendant as an organisation cannot be assumed.

The BGH [Federal Supreme Court] has ruled that gross organisational negligence is indicated where a ship leaves port with insufficiently secured cargo. The carrier must then state in detail what it has done to avoid the specific damage that has occurred. It is important, for example, which organisational measures it or the bodies acting on its behalf have taken to prevent loading errors. If the carrier does not comply with the burden of proof incumbent on it, the presumption of gross organisational fault also extends to the behaviour of its organs (BGH, judgment of 29 July 2009 - I ZR 212/06 (CMI1112); BGH, judgment of 8 May 2002 - I ZR 34/00).

But that is not the case here. The defendant complied with its secondary burden of presentation, even if it did not state in detail what occurred on the loading date on 16 December 2009, and which measures were carried out and accepted, and who specifically initiated or instructed. Initially, the defendant had no information advantage over the plaintiff. The plaintiff's policyholder was able to request details of the loading from L Rostock or K. Furthermore, the defendant researched the course of the damage and made the information obtained available to the plaintiff.

Recklessness can only be found in the case of particularly serious breaches of duty. The defendant would have to have grossly disregarded the (security) interests of L, for example because it failed to take 'elementary protective measures'. This is not the case here. It is undisputed that the defendant had already made several journeys with a comparable load and securing without causing any damage. The mere fact that, two months before the disputed loss of cargo, there was another case of damage during the sea transport of a crane, is insufficient to justify a qualified organisational fault on the part of the defendant. The two sea transports are not comparable. In the case of the loss in October 2009, it was not A but another shipping company that was commissioned. The proceedings at issue also concerned a different ship as well as different crew than in the parallel case. There are no indications for the assumption that the defendant's management had to fear a repetition of possible errors by the crew of the A (ship from the parallel proceedings) and the crew of the Ara Z. Furthermore, the current state of knowledge (ex post) based on expert reports obtained in the meantime is not decisive for the assessment of the breach of duty. Rather, the point in time of the act or omission is to be taken into account. It is not evident that, prior to loading on 16 December 2009, the defendant recklessly refused to recognise that the causes leading to the damage event in October 2009 could be present again in the case of the transport at issue.

Accordingly, the Regional Court pointed out that it would have to be explained in detail which findings were available at what time and which the defendant should have taken into account. Thereupon the plaintiff only submitted in general terms that the defendant had an obligation to examine the situation because the earlier transport was carried out in the same way. From this presentation, however, it does not emerge on the basis of which concrete facts a conclusion about the carelessness of the defendant's management should be drawn. It has not already been explained from which a comparability of the two transports with their respective loss events should be derived in detail. What is not presented is, for example, what information the defendant had on the cause of the damage, in particular whether it should have had doubts about the practice of securing the load with chains. On the contrary, the loss in October had not yet been resolved in December 2009.

What is in dispute between the parties is the assessment of the question of how the liability apportionment is to be calculated, taking into account the maximum liability amount, or what initial value should be assumed. While the plaintiff believes that the apportionment should first be calculated based on the actual damage (EUR 2,242,873.40) and then § 660(1) HGB (old version) should be applied, the Regional Court based the quotation of the value determined in accordance with § 660(1) HGB and, assuming a shared [50:50] liability, only affirmed a payment obligation of the defendant in the amount of half the maximum liability amount. The view of the Regional Court is not to be followed. There is no reason to reduce the liability amount in accordance with § 660(1) HGB (old version) in the corresponding application of § 254 BGB. According to its wording, § 254 BGB is linked to the (actual) damage. This also applies to §§ 606 and 608(1)(5) HGB (old version). The word 'damage' in these regulations refers to the (total) damage that occurs if the goods are lost in full or in part. The sense and purpose of § 660(1) HGB (old version) does not require (especially in the case of major damage events) a further restriction of the general civil law principle of unlimited liability in favour of the carrier. The maximum amount of limited liability in accordance with § 660(1) HGB (old version) already contains a privilege; the carrier is to be protected from an economically unreasonable claim (BGH, judgment of 30 January 1981 - I ZR 18/79, BGHZ 79, 302-307). If the already reduced scope of liability were the basis for the quotation according to § 254 BGB, the already favoured carrier would experience a further - unjustified - liability relief.

Based on the liability apportionment of 70 per cent to 30 per cent, the defendant remains liable for the maximum amount within the meaning of § 660(1) HGB (old version). If the actual damage stated by the plaintiff at EUR 2,242,873.40 is taken as the initial value, the result, with a liability share of the defendant of 30 per cent, is a damage amount of EUR 672,862.02, which is well above the maximum liability to be paid by the defendant.

The admissible cross-appeal of the defendant is justified in so far as not only an amount of EUR 20,538.09, but an amount of EUR 28,753.32 is to be deducted from the maximum liability amount to which the plaintiff is entitled. The calculation made by the Regional Court must be corrected. While the Regional Court halved the defendant's justified counterclaims (EUR 41,076.17) due to a liability apportionment of 50/50 to an amount of EUR 20,538.09, this Court assumes a liability apportionment of 70/30, so that the amount to be offset is EUR 28,753.32 (= EUR 41,076.17 x 70/100).