The plaintiff, an underwriter, raises claims for the insurers it represents, invoking the assigned and transferred rights of S Fleischgroßhandel Im- und Export GmbH (S), and the assigned rights of T GmbH (T). S had purchased a total of 835 boxes, 11,725 kg gross, chilled beef (Chilled Boneless Beef, Rump & Loin) from FCBSA, Uruguay, at a purchase price of USD 159,915, to be transported to Hamburg from Montevideo. The defendant was commissioned to transport the goods packed in a 20-foot refrigerated container, and created a bill of lading for the sea voyage on the CSL. According to the specification given there, the temperature should be set to -1.4° C. The defendant took over the container on 27 February 2014. The ship arrived in Hamburg on 23 March 2014, and the goods were delivered on 24 March 2014 to T named in the bill of lading. Since the recipient complained about frost damage, the goods were examined on its behalf by an expert. In this report, the expert came to the conclusion that the meat had suffered frost damage and had lost its quality as a result. The reduction in value amounted to 25% of the value of the undamaged goods. The expert identified the cause of the damage as being that, according to the records of a room air temperature recorder deposited in the container, the goods were constantly exposed to a temperature that was too low, namely -2.5° C.

The plaintiff alleged that the defendant violated its duty of care with regard to the goods that were handed over, in particular that it was responsible for the fact that the goods were transported at too low a temperature and were damaged in the process. The defendant was therefore liable for the disputed damage according to § 498, 502, 504(1) HGB [Commercial Code]. The amount of damage is 25% of the amount shown in the purchase invoice, the equivalent of approx EUR 28,983.10, whereby the plaintiff restricts itself to the amount resulting from the maritime liability limitation of § 504(1), 505 HGB. It calculates this at EUR 26,275.26 (11,725 kg x 2 SDR/kg x EUR 1.12048 on 23 March 2014) plus EUR 1,897.50 expert costs.

The defendant argued that the goods did not suffer any damage during the custody period. The defendant had complied with the 'set temperature' of -1.4° C specified in the bill of lading, and relied on the container records submitted by it, in particular the cooling graph and the cooling log. According to this setting, the temperature of the blown air (supply air) was also consistently in this range. The damage to the goods could therefore not be based on improper handling on the part of the defendant. The records of the device attached by the sender are not meaningful and it is disputed that the records submitted came from this device. In addition, the defendant relies on an expert opinion by German Survey Marine, according to which an evaluation of the container logs would show that the recorded temperatures were almost consistently between -0.9° C and -1.3° C and never reached -2.5° C. Accordingly, the damage must have occurred before the defendant took over the meat. Finally, the defendant relies on cl 8 of its terms and conditions, according to which temperature fluctuations of 2.5° up or down compared to the temperature specified in the bill of lading are permissible.

Held: The admissible action is unfounded.

According to § 498(1) HGB, the defendant is not liable for the damage that has occurred because the damage could not be averted with the care of a proper carrier. For such cases, § 498(2) HGB provides for an exemption from liability.

According to the convincing report of the expert it is certain that the meat transported by the defendant was exposed to too low temperatures during the transport. The well-documented frost damage is clearly based on the fact that the air blown into the container did not have the set temperature of -1.4° C and was therefore just above the freezing point of the fresh meat being transported, but that that meat was exposed to air currents of temperatures as low as -2.5° C. The expert convincingly demonstrated that the recordings of the temperature measuring device, known as the 'Ryan recorder' and placed in the container, matched the course of the transport exactly, as can be seen from the container's records. There is no doubt that the records presented here belonged to the transport at issue here. The main difference to the records of the container is that the recorded temperature level is different. The temperatures measured in the meat and the icing would suggest that the container's records could not be correct. Accordingly - even if a natural measurement error is taken into account - the recording of the Ryan recorder is convincing. The expert has convincingly excluded the possibility of excessive pre-cooling of the meat, the possibility of incorrect stowage of the goods, or the possibility that the temperature in the container could have dropped due to lower outside temperatures during deck transport in February/March (the latter were not so low).

As an interim result of the convincing statements of the expert it can be stated that the meat was damaged during the transport by the defendant in its care and that the liability requirements according to § 498(1) HGB are thus met. But the expert's opinion also shows that the cause of the blowing in of excessively cooled air is to be found in a malfunction of the container, which cannot be determined by the carrier using the usual means. The expert himself was unable to state this cause. The previously inconspicuous container in question had been subjected to the usual pre-trip inspection (PTI), consisting of several test series, without any abnormalities. This also applies to the PTI carried out after the end of the trip before the next assignment. In particular, the various sensors showed no relevant deviations. The values of supply and return air displayed during transport were also not remarkable and the set temperature had not been changed. The most likely cause is an error in the container's 'controller', which records the values transmitted by the various sensors and controls the air supply. Ultimately, however, this has not been proven either, because the recorded temperature differences for the PTIs would then have been different in the expert's opinion. The expert could also recognise that the container was malfunctioning during the transport from the fact that the differences between the actual intake and return air values displayed, taking into account the outside temperature, were lower than they should have been according to the expert's calculations, but this would not be visible to the people on board. For them, based on the values displayed, everything would look like it was in order.

In this situation, the carrier is not liable. Liability according to § 498 HGB is a fault liability with a presumption of fault at the expense of the carrier. This means that the carrier has the opportunity to exonerate itself with regard to damage that occurred during the transport, but that it must preclude all conceivable negligence for which it can be blamed. In the present case, a malfunction of the container is the cause of the damage. The defendant is exonerated with regard to this malfunction because it was impossible even for a prudent carrier who acted with the usual care to detect this malfunction in advance or during the transport. In order to find against the defendant, this Court would have to be able to at least partially state which possible and reasonable due diligence measures the defendant could have disregarded in order to prevent the occurrence of damage. The Court does not see itself in a position to do so. The situation is comparable with the exception that applies to so-called 'outliers' in product liability law. There is no fault-based liability for errors that are unavoidable despite all reasonable precautions.