The plaintiff claims against the defendant under its assigned and transferred rights due to a loss of a shipment during multimodal transport from Japan to Germany. I GmbH (a German company) purchased turbo charger parts with a value of JPY 51,063,120 from I Corp (a Japanese company). There was a price agreement between I GmbH and the defendant regarding 'sea freight export' in accordance with an offer dated 3 April 2013, which named I Corp as shipper and I GmbH as recipient. The turbo charger parts mentioned above were to be shipped from Japan to Germany by sea. A packing list of 20 May 2013 and a bill of lading of 29 May 2013 were also drawn up. The nominated ship was ME in both documents. However, the goods were later transhipped onto the MC. In June 2013 the MC broke apart in the Arabian Sea and then sank completely. All cargo was completely lost. On 30 June 2013, the defendant invoiced the plaintiff for sea freight in the amount of EUR 711.45. On 6 September 2013 I GmbH assigned all rights regarding the sinking of the MC to the plaintiff.

The plaintiff compensated I GmbH in the amount of EUR 433,556.99. The plaintiff argued that the defendant is liable for the damage in question. In the event that the defendant is able to invoke limitation of liability under § 504 of the HGB [Commercial Code], with 36 packages and an exchange rate of the SDR on 29 May 2013 (the date of the bill of lading) a claim of of EUR 1.15339 x 666.67 = EUR 27,681.50 plus interest arises.

The defendant argued that there was no direct contractual relationship between the German importer I GmbH and the defendant that went beyond a mere price agreement (in the nature of agency) for import sea shipments. Rather, the agreement was limited to the validity of certain freight rates in the event that the Japanese shipper commissioned NE Co Ltd. The German importer gave the shipper in Japan the reference to this price agreement, which the shipper then submitted when booking the individual transports with NE Co Ltd. This ensured that the subsequent settlement of the transport was based on this price agreement. The defendant itself did not take over the performance of the transport, nor could it be regarded as a freight forwarder, because pursuant to the price agreement it did not itself undertake any forwarding performance transactions within the meaning of § 453(1) HGB. As a result, a transport contract only came about between the Japanese exporter and NE Co Ltd. TL Co Ltd in Japan performed the transport on behalf of NE Co Ltd. From a letter from shipping company M to NE Co Ltd dated 12 July 2013 it emerged that the container was actually reloaded in Singapore from MV ME to MV MC and then sank with the latter ship.

Even in the event that, contrary to the contractual relationships outlined above, one wanted to find liability on the part of the defendant, this would be fully excluded in accordance with § 498(2) of the German Commercial Code (HGB), because the loss is based on circumstances that would not have been averted due to the care of a proper carrier. The MV MC had been chartered by MOL and was only taken over from the shipbuilding yard in mid-July 2008. So it was a very young ship in above-average condition. The ship was technically completely intact and just a few days before the incident had passed a full examination by the Japanese classification society NKK without any noticeable findings. In the meantime, investigations have shown that the cause of the breakup is very likely to be a design fault in the ship. This led to so-called 'buckling deformations' having formed in the course of the ship's operation. These circumstances were neither foreseeable nor in any way avertable for the defendant or for any other careful carrier. The occurrence of these buckling deformations was not apparent either to the defendant or to the shipping company M or to other vicarious agents of the defendant. The shipping company M had no knowledge of the previously identified damage to a similar ship, the AZ. A special survey carried out by the classification society shortly beforehand did not detect such damage. If this was a mistake by the classification society, such a mistake would in any case not be attributable to the defendant. The defendant could not have recognised this damage itself, as it would have required an approximate knowledge of the affected areas and the necessary special tools.

Finally, under § 498(2) HGB, even if the diligence of a proper carrier had been used, a possible lack of seaworthiness or cargoworthiness would not have been discovered before starting the voyage. From a technical point of view, buckling deformations in the order of about 20 mm could only have been recognised by the classification society or shipyard, but not by a proper carrier who, without a corresponding initial suspicion and without the technical requirements could not have been expected to recognise this damage during a routine check of the ship.

The plaintiff did not correctly calculate the amount of the liability limitation. This would be judged solely according to § 501(1)(1) HGB, because the 'container clause' only applies if the bill of lading was issued by the party against whom the claim was made. The defendant is not bound by third-party bills of lading. In this case, the bill of lading was not issued by the defendant. Liability is therefore limited either to 1 container x 666.67 SDRs (in the package version), ie to approximately € 765, or (in the weight version) to 3,668 kg x 2 SDRs, ie to approximately EUR 8,440.40. The latter amount, as the higher amount, is decisive.

Held: The action is admissible but unfounded. The plaintiff is not entitled to any claim against the defendant.

No forwarding contract was concluded between I GmbH and the defendant according to § 459 HGB. It is undisputed that I GmbH and the defendant made a price agreement on the basis of the defendant's 'sea freight export' offer of 3 April 2013. However, this is not sufficient for the acceptance of a forwarding contract concluded between I GmbH and the defendant. Rather, this only has the character of a business agency. The agreement between I GmbH and the defendant was limited to the application of certain freight rates in the event that the Japanese sender, I Corp, named in the offer of 3 April 2013, commissioned NE Co Ltd with the implementation of the individual transports.

As a result, this means that there was no direct contractual relationship between the German importer and the defendant that went beyond a mere price agreement (in the nature of agency). The defendant itself did not take over the execution of the transport, nor can it be regarded as a freight forwarder, because pursuant to the price agreement it has not undertaken any forwarding performance transactions within the meaning of § 453(1) HGB. The mere organisation of services within the meaning of § 454(2) HGB also does not represent the provision of transport and is only covered by § 675 BGB [Civil Code]. The fact that I GmbH was charged with the freight costs according to the defendant's invoice dated 19 July 2013 cannot be used to evidence the conclusion of a freight forwarding contract between I GmbH and the defendant. As a result, it can be found that a transport contract was only concluded between the Japanese exporter and NE Co Ltd.

In addition, § 425 HGB is not applicable in this case, because it is certain that the consignment in question was lost during the sea transport, so the liability of the defendant according to § 452a HGB is based on § 498(1) HGB.

However, the plaintiff has no claim against the defendant in accordance with §§ 459, 452a, 498(1) HGB in conjunction with § 398 BGB or § 86 (1) VVG [Insurance Contract Act]. Such a claim would be excluded in accordance with § 498(2) HGB in any event. According to § 498(2)(1) HGB, the carrier is released from its liability if the loss or damage is due to circumstances that could not have been averted through the diligence of a proper carrier. Since the goods were carried on an unseaworthy ship, an exemption from liability of the defendant in accordance with § 498(2) HGB presupposes that the unseaworthy nature of the unseaworthy ship, through the exercise of due diligence, could not be discovered until the start of the journey. This requirement is met here.

The Court is convinced that the MV MC broke apart in the middle and sank due to a construction error or as a result of defects in the construction, since any other cause is ruled out. The defendant is neither responsible for a design error nor for defects in the construction. Such errors could not be discovered by the defendant when applying the care of a proper carrier until the start of the journey. The plaintiff also does not claim that the defendant was aware of a design flaw or defects in the construction. Attributable ignorance on the part of the defendant of a construction error or of defects in the construction is also not to be assumed.

There is no misconduct on the part of the shipping company that the defendant would have to account for in accordance with § 501 HGB. Any misconduct by the shipyard and/or the classification society would not have to be attributed to the defendant according to § 501 HGB, since neither the shipyard nor the classification society was a subcontractor of the defendant.