The third and sixth plaintiffs sought a declaration that the defendant was liable for damages due to cargo damage. The Regional Court upheld the claim of the third plaintiff. The defendant appealed against this judgment.

Held: The defendant's appeal is upheld.

The third plaintiff has no enforceable claim against the defendant for compensation for damage to the goods transported.

It can remain open whether, on the basis of the findings made, a claim for damages by the third plaintiff could have been established in principle in accordance with ss 498.1, 514.1, and 519 of the German Commercial Code (HGB). This appears doubtful, because there are no concrete findings regarding the plaintiffs' claims that the goods in question were damaged while in the defendant's care. However, this question is moot, as any claims for damages by the third plaintiff are time-barred.

Claims arising from a sea freight contract and a bill of lading expire within one year according to s 605.1 of the HGB, beginning on the day on which the goods were delivered according to s 607.1.1 of the HGB. The plaintiff did not assert a claim within this period in a manner that would prevent the limitation period from running.

Here, the limitation period began to run on 3 March 2018. According to the findings of the Regional Court, the defendant did not adequately explain an earlier date for the ship's arrival in Mumbai. The parties do not object to this finding, which cannot be disputed. Based on this, the limitation period ended on 5 March 2019, in accordance with s 186.2 of the German Civil Code (BGB).

The plaintiffs filed their claim before the expiry of the limitation period on 4 March 2019. However, the defendant's objection to the third plaintiff's claim prevails.

A claim suspends the limitation period if the entitled creditor, by pursuing its right through legal proceedings, makes it clear to the debtor that it intends to enforce its right. The debtor is sufficiently warned if the subject matter of the claim makes it clear on what grounds the creditor is suing the debtor in court. The claim of a entitled creditor does not suspend the limitation period if the claim is later changed and the later claim differs significantly from the original claim (see BGH VII ZR 73/94). According to s 204.1.1 of the BGB, the filing of the action suspends the limitation period only for claims in the form and to the extent that they are asserted in the action, ie only for the procedural claim in dispute (see BGH VIII ZR 184/87; BGH VIII ZR 93/04: BGH VII ZR 122/14: BGH VII ZR 13/20). The extent of the suspension of the limitation period is determined by the subject matter of the action (see BGH VI ZR 246/94). Due to the change in the facts of the case, there is a change in the action if the plaintiff switches from asserting a claim based on its own right to basing the claim on assigned rights (see BGH VI ZR 246/94; BGH VIII ZR 93/04; BGH XI ZR 278/06). Accordingly, an action initially based on one’s own right cannot stop the limitation period for a claim based on assigned rights (see BGH VIII ZR 93/04).

The later submission of the third plaintiff in its written submission of 24 November 2020 (within the time-barred period) that it had become the authorised recipient of the goods through endorsements constitutes a material change to the subject matter of the dispute.

In its statement of claim of 4 March 2019, the third plaintiff requested a determination of the defendant's liability for damages and submitted that the third to seventh plaintiffs had approached the defendant to arrange the transport of goods from Hamburg to Mumbai. In para 7, the statement of claim expressly states: 'The defendant itself is indicated on the said bill of lading as the carrier, the sixth plaintiff as the charterer and the third plaintiff as the consignee of the goods.' The statement of claim does not contain any further statements regarding the standing of the third plaintiff.

This passage can only be understood to mean that the defendant issued a straight bill of lading which identified the third plaintiff as the recipient by name. To the extent that the third plaintiff claims that its statement in the statement of claim meant from the outset that it was named as the recipient in the bank's endorsement on the reverse of the bill of lading, this is not convincing. Nothing in the wording in the statement of claim indicates that the third plaintiff had acquired its standing to sue from the bill of lading through further legal acts of other authorised persons - the endorsers. Nor does such an indication emerge from the blanket statement in para 13 of the statement of claim that the plaintiffs are suing on the basis of their own rights, rights that have been assigned to them, or rights that have otherwise passed to them, because this statement also does not contain any indication that the entitlement of the third plaintiff is based on endorsements by the sixth plaintiff and the bank.

In fact, it became clear in the course of the proceedings that the third plaintiff was not itself a party to the carriage contract with the defendant. It was also undisputed that the bill of lading presented in the course of the proceedings did not identify the third plaintiff by name as the consignee. The bill of lading did not identify a named consignee.

It follows that the bill of lading is not a straight bill of lading in the name of the recipient, but rather an order bill of lading. In the case of order bills of lading that do not name the recipient themselves - as is the case here - the recipient is determined by endorsement. This represents a significant change in the subject matter of the dispute, since the third plaintiff did not obtain the legal position asserted from the issuer of the bill of lading, as claimed in the action, but only through the endorsement, which amounts to an assignment, by the sixth plaintiff and a bank.

An endorsement is a special form of transfer of rights under securities law; the securitised right is transferred through the transfer of the paper instrument. Just as in the case of assignment, the procedure arising from a bill of lading which names the entitled party itself represents a different subject matter of the dispute than the procedure arising from an order bill of lading, where the recipient's entitlement only arises from the additional endorsements and thus from legal transactions equivalent to an assignment.

Here, however, the third plaintiff did not initially assert its claim as an assignee. Rather, by filing its action within the period of limitation, the third plaintiff based its standing to sue on the fact that it had been named as the beneficiary of the bill of lading in a straight bill of lading by the defendant issuer. This is the only way its claim can be understood from the statement of claim. After the expiry of the limitation period the third plaintiff made it clear that it had acquired its entitlement to the bill of lading on the basis of two further legal transactions in which the defendant was not involved, namely the endorsements of the sixth plaintiff and subsequently the bank. This substitution of the facts giving rise to the right to claim represents a significant change to the subject matter of the dispute. The issue is not whether the third plaintiff had presented the complete chain of endorsements in a timely manner, but rather that the third plaintiff did not demonstrate when filing its action that the legal position asserted by it had not been obtained for it by the defendant, but by way of further legal transactions by third parties.

The defendant was also unable to defend itself against this representation. Although it knew that it had issued an order bill of lading, it had no knowledge of the endorsements of the sixth plaintiff and the bank.