The plaintiff claims for damage to food with a total weight of 18,245.152 kg under the transferred right of its policyholder (SCCS). SCCS commissioned the defendant to order, collect and ship containers from Hamburg to Jebel Ali, Dubai, United Arab Emirates. A bill of lading was not issued. The defendant in turn commissioned the intervener HL with the sea transport. The food had to be kept at a temperature of -20° C. During the voyage on the MV RB, two machine parts that were stowed on a neighbouring flatrack above fell onto the container due to inadequate packing, which led to damage and openings in the container. The required temperature of -20°C could therefore not be maintained. The flatrack was given to the intervener HL by the second intervener DGF, and was handed over fully packed for sea transport. The cargo was inspected on the reloading of the container in Italy on 23 January 2013, and again on arrival in Dubai.

The plaintiff paid SCCS compensation in the amount of EUR 126,250.96. Upon arrival in Jebel Ali on 4 February 2013, all of the goods were found to be damaged when the container was opened because the intended temperature was not maintained for a long period of time. The exact loading of the container results from the loading list drawn up by the defendant, in which a total amount of 2,371 packages and a total weight of the lot of 18,245.152 kilograms is given. The plaintiff argues that, as a multimodal carrier, the defendant is fully liable for the damage. It can neither rely on the dangers of the sea nor on the fact that the packing defect in the flatrack could not be recognised. It would have been up to the defendant to check the flatrack. Limitation of liability does not apply. The ADSp [German Freight Forwarders' Standard Terms and Conditions] were not effectively incorporated into the contract between SCCS and the defendant. Section 660 HGB [Commercial Code] (old version) does not apply because the defendant knew the exact load and therefore did not need to issue a bill of lading in order to be fully liable.

The defendant argues that it was not responsible for the damage alleged by the plaintiff because securing the cargo parts on the flatrack was not part of the carrier's duties. Its only responsibility was to move the container or flatrack handed over to it for transport. The intervener HL also had no reason to check the securing of the machine parts on the flatrack. Such a check is also not possible, taking into account the conditions of modern container transport. It was not apparent to the defendant or the intervenors that the packaging/stowage was inadequate. Because of the associated costs, taking into account the increasing automation of loading/unloading processes, it is also not possible to check package by package. The defendant is also not liable because the cause of the damage was perils of the sea. From 18-19 January 2013 the ship found itself in heavy seas with wave heights of up to 10 m and wind speeds of up to 11 on the Beaufort scale. At most, the defendant is only liable to a limited extent to 2 SDRs per kg because the ADSp have become part of the contract. In the correspondence with the alleged policyholder of the plaintiff, the defendant referred to the application of the ADSp. The expert reports and/or destruction costs of the goods are not reimbursable. The defendant also raises the objection of limitation of actions.

Held: The admissible action is justified.

The defendant is liable to the plaintiff in accordance with §§ 606, 452a HGB (all references are to the old version), § 86 VVG [Insurance Contract Act] for the damage caused to the goods in the period from acceptance to delivery. It is undisputed that the damage occurred during the sea transport by the defendant or its subcontractor. The contents of the container are evidenced by the packing list made by the defendant itself. According to the undisputed statements of the plaintiff, the fact that the loading list names two different containers is due to the repackaging process in Italy and is confirmed by the inspection report.

Section 608 HGB does not preclude liability. The exclusion of liability under § 608(1)(5) HGB, which may be relevant in the relationship between the two interveners, does not apply directly between the parties because the second intervener and the plaintiff are not in a contractual relationship with one another. However, the defendant cannot successfully invoke it either on the basis that a lack of lashing of the machines on the flatrack represents a circumstance which, within the meaning of § 606 HGB, could not have been averted by the diligence of a proper carrier. It is true that the safe storage of goods to be shipped in a container in relation to the shipper or cargo owner is not one of the duties of the carrier. However, it is also recognised that even if there is a packaging defect within the meaning of § 608(1)(5) HGB, the freight forwarder's cargo care does not expire completely and there is a continuing obligation to inspect the goods on the land side. This obligation must apply all the more in relation to an uninvolved third party whose own goods were packed correctly.

The carrier fulfils this duty of cargo care if it detects externally recognisable packaging defects and, if necessary, takes appropriate precautionary measures and safety measures. The defendant has not substantiated the fact that the packaging defects were not recognisable or what precautionary measures were taken to find such defects. The defendant, who refers to the regulation in § 606 HGB, has the burden of presentation and proof. The mere indication of the defendant that the loading/unloading of cargo - for example in the Altenwerder container terminal in Hamburg - is a largely automated process, cannot provide any information about how the disputed loading took place in the specific case. The same applies to the assertion of the intervener that such a check is impossible, taking into account the conditions of modern container transport. In view of the fact that it was not a closed container that was loaded, but a flatrack with machine parts that is much easier to examine, this information is insufficient. When loading closed containers, an investigation may be impossible. In the oral hearing, the defendant did not show that the issue with the flatrack was actually not recognisable. This would require more detailed information on the specific type of packaging of the machine parts, visibility of the lashing elements, type of loading, involvement of people, checking the loading, number of packages on the ship, exact location of the flatrack etc.

There is also no exemption of liability under § 608(1)(1) HGB, according to which the carrier is not liable for damage resulting from hazards or accidents at sea. There is a sea danger when it is no longer an everyday occurrence associated with seafaring, which is usually to be expected on a certain voyage according to route and season, and which a seaworthy, properly equipped ship should be able to cope with, and also with appropriate and proper stowage of the cargo in order to preserve it. The present case was a trip in February 2013, in which, as evidenced by the statement of facts, wind forces between 9 and 10 occurred in gusts of up to 11 ('squall'). The Court has no doubt that it is a severe storm at such wind speeds. At that time of year and on the high seas, however, strong storms must be expected on a regular basis, against which appropriate precautions must be taken by properly stowing cargo. In contrast, the statements made by the second intervener, according to whom this was a dangerous situation that exceeded the usual side-effects of sea transport, are not convincing, in particular because only this disputed loss event occurred during the storm. It does not follow in light of these wind and wave conditions that every stowage and lashing adapted to the season and route would have failed. Even if the ship rolled violently, there is nothing to indicate that the machines would have detached from the flatrack even with sufficient lashing.

With regard to the amount of damage, the plaintiff has proven the type and value of the dispatched food through the commercial invoices and packing lists presented. The presumption of correctness established by this in commercial transactions is not challenged by the defendant's simple denial. In view of the substantiated presentation on the condition of the goods, as can be seen from the inspection reports, the general denial of the defendant that a total loss of the goods has occurred or the assertion that sales would have been possible is also not sufficient. This also applies to the defendant's assertion that the disputed goods were not thawed according to expert opinion. In view of the poor condition of the goods evidenced by the reports ('packages were swollen, meat was discoloured, the contents had all been deformed'), this is not the case on the basis of the facts or concrete information.

However, the defendant is only liable to a limited extent in the amount of 2 SDRs per kg of the gross weight. It is true that because of § 449(2) HGB, the defendant cannot successfully invoke a limitation of liability according to cl 23.1.3 ADSp because the parties have not concluded a written transport order. The defendant has not shown that the claimant's policyholder positively knew of the clause and knew that it would be included in the contract. The industry standard of the clause is not sufficient.

Liability is rather limited to 2 SDRs according to § 660(2) HGB, whereby the relevant maximum amount, contrary to the view of the plaintiff, is not based on the alternative packaging of § 660(1) HGB due to the lack of a bill of lading. The plaintiff's view that the tacit waiver of the issuance of a bill of lading also constitutes an agreement to put the other side in a position with regard to liability as if a bill of lading had been issued does not find any support on the facts presented. The positive knowledge of the defendant does not lead to a different assessment in view of the clear wording of § 660 (1) HGB. In particular the issuance of a bill of lading can hardly be dismissed as 'formalism' because of the far-reaching consequences associated with it - not only for liability. The amount is calculated on the basis of the undisputed weight of 18,245.152 kg and the value of the SDR on the day the judgment was pronounced (1.17748). In addition, the claimant cannot demand the claimed costs of determining the damage. A claim for reimbursement does not arise from § 610 HGB, rather only the right of inspection is regulated there.

Finally, the objection to the statute of limitations does not apply. The one-year period specified in § 612(1) HGB is calculated from the delivery of the goods, which took place on 4 February 2013 in Jebel, United Arab Emirates. The lawsuit was received by the Court on 4 February 2014 within the period of the statute of limitations and was served on 19 February 2014 - therefore 'soon' within the meaning of § 167 ZPO [Civil Procedure Code].