Hapag Lloyd AG (Hapag) sued Fercam Transportes SA (Fercam) for damages suffered from the transport of 25 containers of plastic waste contracted by Fercam, as freight forwarder, with Hapag as actual maritime carrier. These containers were to be transported from La Bañeza to Valencia in Spain and then to Dakar, Senegal. Hapag's bill of lading identified the port of embarkation (Valencia), the port of discharge (Dakar), the recipient (Nitradini), the vessel (the MV Hansa Neuburg), and the contents of the containers (plastic waste).

On 1 March 2021, the containers arrived in Dakar. The recipient did not take charge of them. On 21 April 2021, Dakar authorities concluded an investigation into the containers, warning that the cargo was illegally trafficked, as it consisted of plastic waste with a high risk of contamination. They sought to seize the vessel. Hapag negotiated to lift the embargo and reship the goods to the port of origin, paying a fine of XOF 2,000,000,000. The embargo was lifted, and Hapag assumed the costs of returning the goods to Valencia.

Hapag then sued Fercam for EUR 5,760,344.03, comprising the freight for the initial voyage, the fine paid to Senegal port authorities, costs relating to the containers during their seizure in Dakar, and costs of reshipping the cargo to Valencia.

Fercam argued, among other things, that Hapag's right of action was barred, regardless of whether German law applied as established in the bill of lading, Spanish law, or the Hague-Visby Rules. The Court below upheld this argument, finding that German law was applicable, as agreed in the bill of lading. The one-year statute of limitations established in § 605 of the German Commercial Code (HGB) had expired. Hapag appealed to the Provincial Court.

Held: Appeal partially upheld.

Clause 25 of the relevant bill of lading states:

Unless otherwise specifically stated herein, any claim, dispute, suit or proceeding arising under this Bill of Lading and/or the contract between the Carrier and the booking party shall be governed by German law and shall be determined exclusively by the courts of Hamburg. The Carrier shall have the option of filing a lawsuit at the Merchant's address.

This clause is clear and is commonly used in international carriage of goods. The preference for a law chosen by the contractual parties is contemplated in art 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), provided that it is expressly stated or unambiguously results from the terms of the contract, as here.

Although Fercam is mentioned as the agent of the shipper (Banezana de Plasticos SL), the German choice of law clause is also enforceable against it. The fact that Hapag directed its claim against the freight forwarder and not against the shipper does not imply that their legal relationship is governed by different rules. The Court confirms that the applicable law is German law.

Both parties submitted opinions on German law regarding the statute of limitations for actions arising from a maritime transport contract. The opinions agreed that § 605 HGB imposes a one-year time limit on 'claims under a contract for the carriage of goods by sea and under a bill of lading'. Regarding the calculation of the time limit, § 607.1 HGB provides that it 'shall commence on the date the goods are delivered or, failing such delivery, on the date the goods should have been delivered'.

With regard to suspension of the limitation period, § 608 HGB provides as follows:

The limitation period of the claims set out in sections 605 and 606 may also be extended by the creditor’s declaration asserting the creditor’s claims to compensation; such an extension shall run for as long as the debtor refuses to satisfy the claim. Both the assertion of claims and the refusal to satisfy the same must be made in text form (a readable statement that is permanently valid without a signature having been applied). Any further declaration concerning the same claim to compensation shall not result in an additional extension of the limitation period.

This rule on the suspension of the deadline, specific to maritime claims, is complemented by another general provision (which the Court understands is applicable to all types of actions), namely § 203 of the German Civil Code (BGB):

If negotiations between the obligor and the obligee are in progress in respect of the claim or the circumstances giving rise to the claim, the limitation period is suspended until one party or the other refuses to continue the negotiations. The claim is statute-barred at the earliest three months after the end of the suspension.

Hapag cites a ruling of the German Federal Court of Justice (BGH) of 20 December 1982, which accepted that the limitation period should be computed from the date of damage, rather than contractual delivery:

If the goods were lost after the time when they should have been delivered in the normal course of events, the period of time set out in § 612 of the HGB is only counted from the loss of the goods and not from the contractual time of delivery. Otherwise, if, for example, the goods were delivered to an unauthorised person more than one year after the time at which they should have been delivered, there would no longer be a right to claim, even if the loss had only occurred due to the erroneous delivery. This could not be the intention of § 612 of the HGB.

We must agree with this. ... [T]his case concerns a loss that occurred after the time at which the goods should have been delivered. In such a case, it only makes sense to link the start of the period under § 612 HGB to the time of the loss itself, since the parties involved in the cargo have not yet suffered any damage. If, on the other hand, the period were to begin at the fictitious time of delivery, this would unjustifiably shorten the period, especially if the loss occurred relatively late after this point.

German law agrees with Spanish law in establishing a relatively short one-year statute of limitations for claims arising from maritime transport contracts. Similarly, the statute of limitations is computed from the date of delivery, or from the date at which delivery should have been made in the case of claims for losses (§ 607 of the HGB and art 78.2 of the Spanish Civil Code). The controversy in Spanish law as to whether this is a limitation or prescription period (see art 3.6 of the Hague-Visby Rules, to which art 277.2 of the Spanish Law of Maritime Navigation (LNM) refers), has been resolved mostly in favour of considering it a limitation period. However, this period is applicable to actions in which the carrier's liability is examined. Here, the action is brought by the actual carrier Hapag against the freight forwarder Fercam, who in this relationship with Hapag acts as the shipper.

The main difference between Spanish and German law lies in the form and effects of the interruption of the statute of limitations. In this regard, German law is stricter in two ways:

1) The creditor's extrajudicial claim interrupts the statute of limitations in both laws. However, in Spain, the period must begin to run anew after the interruption. In Germany it is simply suspended, resuming from the moment it was interrupted. In short, the statute of limitations simply stops. The time elapsed is not lost, as in Spanish law.

2) While in Spain the limitation period can be interrupted repeatedly by a claim from the creditor before the period expires, in Germany an extrajudicial notice issued by the creditor only suspends the period once (§ 608 HGB).

It is necessary to distinguish, for the purposes of limitation, between damages incurred up until the goods were placed at Fercam's disposal (essentially, the costs of reshipping the goods and the fine paid to the Senegal authorities), and other continuing damages arising from transport but incurred after its completion (seizure and storage and demurrage costs after the goods were abandoned). These are unrelated damages, beyond being caused by the same transport. Regarding the former, this Court agrees with the lower Court's judgment that the claim should be dismissed because the one-year period in § 605 HGB has elapsed.

As to the latter, damages arising from the seizure of the containers at the Hapag facilities in Valencia continue to be caused by Fercam's failure to remove the goods. Only with destruction of the cargo and release of the containers will there be complete certainty of damage caused. The jurisprudence of the German Federal Court (BGH) allows this Court to distinguish between losses incurred during transport (ie prior to the delivery of the goods), and damages incurred or discovered afterwards, which will only expire one year after they have occurred, or from the moment they became known.

Alternatively, if German case law is not directly applicable here, the Court considers that there is insufficient evidence regarding German law in relation to those damages that arise after the transport has been completed. These damages will continue to occur, and their extent will remain unknown while the same situation persists. In this case, the dispute must be resolved in accordance with Spanish law. The jurisprudence of the Spanish Supreme Court considers that in cases of continued damages or successive harm, the calculation of the limitation period does not begin until the production of a definitive result, with an important nuance, in the sense that this will be the case 'when it is not possible to divide the continued series into different stages or differentiated events'. The damages arising from the seizure of the containers are ongoing, and are due to Fercam's continued non-compliance, so Hapag's action cannot be declared extinguished by the statute of limitations. Hapag's claim for seizure, delay and demurrage expenses in respect of the containers has thus not expired.