This was an appeal from the judgment of the Regional Court in LG Lübeck 13 HKO 25/23 of 5 March 2024. The plaintiff was a transport and logistics company. The defendant, TT-Line, offered ferry services between Trelleborg, Sweden, and Lübeck-Travemünde, Germany. B sold a consignment of copper cathodes to S for delivery to C in Italy. B commissioned the plaintiff to transport the copper from Sweden to Italy. The plaintiff, in turn, commissioned the defendant to transport the copper on an unaccompanied trailer from Trelleborg to Lübeck by ferry.

Carriage was subject to the defendant's general terms and conditions, which provided:

6. Period of care … (2) In the case of unaccompanied cargo, the period of TT-Line’s custody shall commence at the moment the cargo is taken over and shall end upon delivery.

The trailer was delivered to Trelleborg port on 17 November 2022 and parked in the designated parking space at the ferry dock. The driver checked in online using the defendant's mobile freight check-in system. The trailer and cargo went missing in unclear circumstances. It was not shipped on the ferry.

The plaintiff argued that the defendant had taken custody of the trailer and its cargo. Parking in the pre-storage area after completing the check-in process was already part of the ferry transport and was classified as maritime transport. The defendant caused the damage due to its gross organisational negligence and failure to ensure adequate security.

The defendant argued that it was not liable for the loss of the trailer because it had not yet taken custody of it at the time of its loss. Taking custody would only have occurred when the trailer was brought onto the ferry. The plaintiff parked the trailer on public land in the port earlier than necessary. This was done at the plaintiff's own risk.

The Regional Court held that German law was applicable to the contract of carriage, as the defendant's registered office and the place of delivery were both located in Germany. The plaintiff demonstrated that the cargo had been handed over to the defendant for transport within the meaning of ss 481 ff of the German Commercial Code (HGB). The storage of the trailer and its goods constituted preparatory work for the shipment of the cargo, and was therefore classified as part of the maritime transport. This also corresponded to the defendant's terms and conditions, which merely stated in cl 6.2 that the transport began at the moment the cargo was taken over. In this regard, the defendant could not claim that it was not the operator of the port facility and that the port facilities were public areas. The decisive factor was that the trailer was handed over according to the defendant's instructions. It was solely the defendant's responsibility to specify a sufficiently secure parking location. It was up to the defendant to explain how the trailer was lost while in its custody and to exonerate itself. The defendant failed to do so. The defendant could also not claim contributory negligence on the part of the plaintiff.

However, the Court held that the defendant only owed EUR 85,880.34, as it could rely on limitation of liability under ss 504 and 505 HGB. Liability was limited to 2 SDRs per kg or 666.67 SDRs, whichever is higher. The gross weight included not only the weight of the goods, but also the weight of the packaging if it was provided by the shipper. The weight of the trailer was 8,160 kg. The limitation amount was thus 2 SDRs x (26,960 kg + 8,160 kg). The limitation of liability was not breached pursuant to s 507.1 HGB. The evidence established that Trelleborg port was so well secured against theft that the defendant could not be held responsible for such serious organisational negligence that it caused the loss recklessly and acted with knowledge of this risk.

Both parties appealed to the Higher Regional Court.

Held: Appeals dismissed.

The contested judgment does not contain any legal errors; the underlying facts also do not justify a different decision.

The Regional Court correctly found that German law applies. Furthermore, the Regional Court correctly found that the defendant took over the trailer and cargo before its loss (s 498(1) HGB, read with cl 6.2 of the defendant's terms and conditions).

Acceptance is the receipt of the cargo for transport. Acceptance generally means acquiring possession, or at least establishing the carrier's custody of the goods to be transported. Given the diversity of loading procedures in maritime transport, the time of acceptance depends largely on the terms of the individual freight contract (MüKoHGB/Herber/Harm, 5th ed 2023, HGB § 498 paras 32 and 34).

Based on the check-in procedure for unaccompanied freight, the Senate finds that the defendant took over the trailer and cargo upon completing the check-in process. The defendant itself specified the procedure and individual steps of online check-ins for unaccompanied transport and, in the final step, assigned the driver a precise parking location for the trailer. It also provided the plaintiff with time specifications within which check-in could be completed at no additional cost. It is irrelevant that the freight was parked in a public area. By providing specifications to its customers, the defendant indicated that once the trailer is parked in the assigned parking space, it is located in the area desired and determined by the defendant, and is thus taken over with its consent. According to the agreement between the parties, the check-in procedure represents the decisive - albeit deficient - interface control for taking the trailer into custody. This is also evident from the fact that the plaintiff can only remove the cargo from the defendant's custody using the TIN (Transport Identification Number) assigned by the defendant.

This assessment is also supported by the 'Harbour Agreement' between Trelleborg port and the defendant. According to this agreement, the port operator primarily allocates specific berths to the defendant's vessels in accordance with cl 1.1.1(a). For loading and unloading of ferries, the port provides check-in and check-out facilities in accordance with cl 1.1.1(b), but does not carry out these processes itself. This is done by the defendant. In addition, pre-storage areas are provided in accordance with cl 1.1.1(c) for optimal loading and unloading of vessels, where unaccompanied units can be parked and picked up by customers. This is done according to the defendant's specifications. According to cl 1.1.1(f), the defendant is permitted to offer its customers 48-hour demurrage-free use of the pre-storage areas. Beyond that, customers themselves are responsible for any demurrage charges incurred by the port, as stated on the defendant's website.

Thus, the contractual relationship between the port operator and the defendant assigns the agreement and processing of takeovers to the defendant and its customers. These provisions demonstrate that, while the port operator provides the defendant with a certain infrastructure, it is used by the defendant independently. The defendant provides its customers with detailed specifications regarding the time limits and modalities for the delivery of unaccompanied cargo. The storage of a trailer loaded with goods at a restricted-access location on the port premises determined by the carrier thus constitutes preparatory work for the shipment of the cargo and is classified as a maritime transport operation (Federal Court of Justice, judgment of 1 December 2016 - I ZR 128/15 (CMI1120)).

This view is also supported by the fact that the defendant amended cl 6.2 of its terms and conditions after February 2023:

In the case of unaccompanied cargo, TT-Line's custody begins at the time the cargo is taken over by the tugmaster for loading the ferry and ends when the tugmaster has completed unloading, specifically at the moment the cargo is uncoupled at the port of arrival.

This legal dispute may have been the reason for the amendment.

The defendant's objection that the circumstances here differ significantly from the port cases previously decided by the Federal Court of Justice, in which the quayside facility would be considered an 'alonge of the ship', is irrelevant. It may be true that in those cases, a logistics company typically operates at the terminal as a quayside facility, which has its own security systems and barriers to protect goods entrusted to it from access by third parties. This was not the case here, as the defendant used the port operator's infrastructure. However, this does not lead to a different assessment, because the defendant defined the acceptance vis-à-vis the plaintiff based on the check-in procedure it specified, and determined this independently of the facilities which it maintained on-site.

The defendant, as carrier, is not released from its liability under s 498(2) HGB, because it has not proven that the loss was due to circumstances that could not have been avoided by the care of a prudent carrier. The defendant has not provided any information regarding the loss of the cargo. It is unclear when and how the trailer and its cargo were lost. It is highly likely that they were stolen. The ambiguities regarding the loss of the cargo work to the defendant's detriment, as it is unable to exculpate itself.

There is no contributory negligence on the part of the plaintiff within the meaning of s 498(3) HGB, which would limit the defendant's liability, and which the defendant must demonstrate and prove.

As the Regional Court correctly stated, the defendant owes only EUR 85,880.34 to the intervener, since the defendant can successfully invoke limitation of liability under ss 504, 505, and 507 of the HGB. The conditions for breaching limitation of liability under s 504(1) HGB, and thus for the defendant's liability for the full value of the copper cargo, are not met. The damage is not attributable to an act or omission committed by the defendant, as carrier, recklessly and with the knowledge that damage would likely occur (s 507.1 HGB).

The element of recklessness requires a particularly serious breach of duty in which the carrier or its "people" blatantly disregard the security interests of the contractual partner (BGHZ 145, 170, 183; Federal Court of Justice, judgment of 25 March 2004 - I ZR 205/01). The subjective requirement of awareness of the probability of damage occurring is the realisation, apparent from reckless behaviour, that damage is likely to occur. However, fulfilling the element of recklessness alone is not sufficient to infer awareness of the probability of damage occurring. Rather, such realisation can only be assumed as an internal fact if the reckless behaviour, based on its content and the circumstances under which it occurred, justifies this conclusion.

In principle, the burden of presentation and proof for the requirements of s 507 HGB lies with the claimant, as this constitutes an exception in its favour. The statutory rule is limited liability in the case of (presumed) negligence on the part of the carrier or its agents. In this case, the claimant's allegation must not only generally substantiate the likelihood of negligence on the part of the carrier, but also the likelihood of personal, qualified negligence on the part of management. The assumption of qualified negligence may, however, also be justified if the carrier fails to fulfil its secondary burden of proof regarding the organisation of its business and the security measures taken (Federal Court of Justice, judgment of 29 July 2009 - I ZR 212/06, TranspR 2009, 331 para 34 (CMI1112)).

However, it is first necessary that the plaintiff's pleadings or the undisputed facts indicate a course of events leading to damage that makes qualified negligence on the part of the carrier itself seem likely (BGHZ 174, 244; I ZR 212/06). If the course of events remains unclear even after the plaintiff's pleadings, and the carrier provides no information on the course of events or safety precautions, qualified negligence on the part of the carrier itself cannot be inferred without further evidence, even if causes of damage for which the carrier is not fully liable are considered (OLG Stuttgart, judgment of 17 March 2010 - 3 U 120/09).