The plaintiff, S GmbH, commissioned the defendant, D GmbH, to transport 1,000 t aviation gasoline (AVGAS) from Rotterdam to Vienna by inland waterway. AVGAS is a special type of gasoline with a high octane number for use in aircraft engines. The quality requirements for the production, storage and transport of AVGAS are very high. The defendant commissioned the intervener, Marion H, who was the owner of the motor tanker TMS A, to carry out the transport. The ship was supposed to have had a tank pre-treatment.

In Rotterdam, eight of the ten cargo tanks of the ship were filled with AVGAS, initially only up to a height of 30 cm for the purposes of a 'foot test'. Before that, employees of S BV, the seller of the AVGAS, had shone lights into the cargo tanks from above and found them to be in order without climbing down. In three of the eight cargo tanks, the blue AVGAS turned brownish-green or green. The discoloration was caused by a mixing of the AVGAS with remnants of diesel fuel previously transported in these tanks. In the five other cargo tanks it remained blue (as it was supposed to). In the five cargo tanks in which the AVGAS was not contaminated, the intervener had temporarily transported another product (cyclohexanone) after the diesel fuel.

The 41 t of AVGAS contaminated in the three cargo tanks was pumped out of the ship, stored in two containers, and finally disposed of. The plaintiff had to pay ATS 341,814.25 to S BV for the wasted AVGAS, and ATS 110,067.17 for its disposal, a total of ATS 451,881.42 (EUR 32,839.50). Disposal was necessary because mixing AVGAS with other fuel qualities could have a lasting negative impact on the operational safety of aircraft engines, and cleaning the AVGAS or other processing and recycling was not economically viable. No producer or distributor of aviation fuels would take the risk of using AVGAS if there was even a suspicion of blending.

Prior to this incident, the cleaning of the tanks after the previous transport of diesel fuel from Rotterdam to Vienna was not carried out by the intervener itself, but by SPaP on its behalf. The cargo tanks were first emptied, then the condensate was sucked off, and finally each chamber was individually wiped dry. A cleaning agent was not used. The cleaning was done without reference to any particular cargo. The cyclohexanone was unloaded after the transport in Rotterdam, after which all cargo tanks were ventilated dry with the onboard blower. The master of the ship then carried out a visual inspection of the cargo tanks with a flashlight, and did not discover any cargo remains of diesel fuel.

The plaintiff sought damages from the defendant in the amount of EUR 32,839.50. The defendant applied for the claim to be dismissed on the basis that the ship had been properly cleaned, so that it was 'dry and gas-free' as agreed. The contamination could therefore not have occurred on the ship. The cyclohexanone transported before the AVGAS was not contaminated by diesel fuel. The intervener agreed with the submissions and motions of the defendant, contending that SPaP had complied with the cleaning requirements. The defendant and the intervener could not have done more than to commission an authorised company to clean the cargo tanks and have the cleaning checked. The due diligence of a reasonable carrier was thus observed.

The first Court dismissed the plaintiff's claim, agreeing that the carrier had exercised due diligence. The appellate Court heard the appeal made by the plaintiff, reversed the first judgment and referred the case back to the first Court for additional hearing and decision. An appeal to the Supreme Court was then allowed.

Held: Appeal allowed. The judgment of the first Court is amended in favour of the plaintiff.

According to s 26 of the Law on Inland Navigation (BinnSchiffG), which came into force on 1 January 1940 in the territory of Austria, the provisions of ss 425-427, 430-436, 439, 440-443, 445-451 of the Commercial Code (HGB) [which domestically implement the Hamburg Rules] also apply to the transport of goods on rivers and other inland waters. The reference in s 26 BinnSchiffG does not include s 429 of the German Commercial Code (HGB), which regulates the carrier's liability for loss or damage to the goods in the period from acceptance to delivery or failure to meet the delivery deadline. Instead, s 58 BinnSchiffG applies as a special legal provision with respect to transport of goods on rivers and other inland waters.

According to s 58(1) BinnSchiffG, a carrier is liable for the damage caused by loss or damage to the cargo from receipt to delivery, unless it can prove that the loss or damage was caused by circumstances that the care of a diligent carrier could not have averted. The wording of this provision largely coincides with that of s 429(1) of the HGB (apart from the liability for failure to meet the delivery deadline), which is why the literature and case law on s 429 of the HGB can also be used to resolve the present case. Section 58(2) BinnSchiffG stipulates that the liability of the carrier is excluded, in particular, if the loss or damage arose from a defect of the ship, including its accessories or loading or unloading equipment, which could not be discovered, despite the care of a prudent carrier. This is a special application of the principle laid down in s 58(1).

According to s 425 of the HGB, a carrier is anyone who professionally undertakes the transport of goods on land or on rivers or other inland waters. This applies to the defendant. The essence of the contract of carriage is to bring about a successful result, namely the transportation of goods from one place to another.

According to s 26 of the BinnSchiffG read in conjunction with s 431 of the HGB, the carrier is responsible for the fault of its servants and agents, and the fault of other persons whom it uses to carry out the transport, to the same extent as its own fault. The group of 'other persons' also includes independent contractors and their agents. However, the carrier is only liable for the culpable behavior of these other persons to the extent that it has used them to carry out the transport. This includes cleaning the ship in preparation for transport. The carrier (the main carrier) is not obliged to carry out the transport itself. It can carry out the transport of the goods via another carrier (the sub-carrier), for whom it is then liable according to ss 431, 432(1) HGB.

The main duty of the carrier is the duty of care, which requires it to take all customary measures to protect the goods that are reasonable in the circumstances of the case (Csoklich, Transportrecht 97; 7 Ob 687/90). As part of the carrier's contractual obligations, a ship suitable for the fulfilment of the carriage contract must be selected that is fit for loading. Proper transportation therefore also includes thorough cleaning of the ship before the goods are taken over (cf OLG Hamburg, 6 U 188/80 = TranspR 1986, 146). Remnants of previous cargoes that have accumulated in the ship must not contaminate new cargoes. Before loading the ship, the cargo tanks, lines, pumps, pipes, etc, must therefore be carefully cleaned.

According to s 58 BinnSchiffG, the plaintiff has to prove that the carrier received the cargo properly, completely and in undamaged condition. Receipt is understood here as the acceptance of the goods for transport, whereby the carrier must be able to check the type and quality of the cargo. In the present case, the plaintiff therefore only had to prove that the AVGAS was not handed over to the intervener in a contaminated state. It succeeded in providing this evidence; the contrary assumptions of the defendant and the intervener were clearly refuted. The AVGAS was mixed with diesel fuel residues from earlier carriage in the intervener's ship, which made the AVGAS unusable and had to be disposed of. This triggered the liability of the defendant because the carrier is fundamentally liable according to s 58(1) BinnSchiffG for damage that occurred during the custody period, ie from receipt to delivery. In this context, damage is any disadvantageous change in the substance of the goods if their quality is impaired, eg through the contaminating mixture with foreign substances. The distinction between loss and damage in the case of irreparable damage is irrelevant here.

The carrier can exempt itself from liability under s 58(1) BinnSchiffG by providing evidence that the damage to the cargo that occurred in the period between receipt and delivery was caused by circumstances that could not have been averted by the diligence of a reasonable carrier, and this also applies to its servants and agents people and other persons within the meaning of s 431 HGB. If, as in the present case, the cargo is damaged between receipt and delivery, the BinnSchiffG assumes that the carrier is responsible for this. This liability can only be avoided by the carrier refuting this legal presumption. It does not depend on individual fault. The law makes the behaviour of a diligent carrier the standard. The care that a diligent carrier would take to deliver the accepted goods complete and undamaged cannot, however, be determined abstractly, but only in relation to the specific case. However, the appellate Court correctly pointed out that the use of a cargo-capable ship is one of the cardinal obligations of every carrier; if it fails on that point, the exonerating evidence cannot succeed.

Within the scope of the exonerating evidence, according to s 58(1) BinnSchiffG, the carrier has to prove according to s 431 HGB that the persons working for it are not at fault, and that its people have done everything that they could achieve according to the circumstances of the case. It is therefore insufficient to relieve the carrier of the burden that it can prove that it (personally) has done everything necessary (eg has given a cleaning order); the carrier must also provide evidence that its people and the other people whom it has used to carry out the transport have exercised the care of a diligent carrier. In this respect, the defendant and the intervener are obviously mistaken if they think that the mere issuing of a cleaning and inspection order will settle the case for them and eliminate any liability.

The carrier must substantiate and prove specific circumstances to refute liability. This includes the appropriate cargo provisions, tank pre-treatment and generally observing and implementing all measures for the secure fulfilment of the contract. The carrier must prove that there are no possible causes for which it could be at fault. Typical reasons for relief are particular circumstances of force majeure, unavoidable events, or damage due to the fault of the shipper, eg as a result of inadequate packaging or improper instructions. Such cirumstances were never alleged, neither in the direction of the inevitability of a certain event, nor in relation to the fault of the plaintiff.

The defendant's reference to the fact that the requirements for the standard of care required by the diligent carrier must not be overstated is correct. However, if the causes of the damage remain unclear (non liquet), the carrier must bear the consequences. In practice, this means that only a complete clarification of the cause of the damage can relieve the carrier of liability. However, the defendant and the intervener did not meet this requirement, and did not make any useful submissions to fully clarify the cause of the damage.