The plaintiff, who manages fashion stores in Saarbrücken, sued the defendant carrier for damages arising from a contract for the shipment of a package of clothes. The goods were sent to the plaintiff in January 2023. Since the plaintiff considered them defective, it returned them to the defendant, who refused to accept them. The goods were sent back to the plaintiff, who again refused to accept them on 22 March 2023. The defendant then transported the goods to its distribution centre on the same day. Despite a subsequent investigation, the goods remained untraceable. The plaintiff filed a damage report on 23 August 2023. The plaintiff sued the defendant for EUR 7,000 in principal as well as pre-litigation legal fees, plus interest. The defendant contested the claim. The Regional Court dismissed the plaintiff's claim. The plaintiff appealed.

Held: The appeal is partially successful. The defendant is ordered to pay the plaintiff EUR 122.53 plus interest. The appeal is otherwise dismissed.

Contrary to the judgment of the Regional Court, the plaintiff has a claim against the defendant under § 425 para 1 of the German Commercial Code (HGB) ['The carrier is liable for any damage resulting from loss of or damage to the goods occurring during the time between the taking over of the goods and their delivery, or resulting from delay in delivery.': cp arts 4 and 5 of the Hamburg Rules]. Due to the permanent inability to locate the goods accepted by the defendant for transport, a 'loss' within the meaning of this provision exists. The damage caused by the loss also occurred within the responsibility period relevant for § 425 para 1 HGB. This is because the defendant did not deliver the goods after accepting them for transport. The fact that, in the present case, both the shipper and the consignee refused to accept the goods does not preclude this finding.

If, after acceptance of the goods, delivery cannot be carried out in accordance with the contract due to a refusal of acceptance, the carrier must, according to § 419 para 1.1 HGB, obtain instructions from the sender entitled to dispose of the goods pursuant to § 418 HGB. It is not apparent that the defendant obtained instructions from the plaintiff here, nor are there any circumstances indicating that instructions could not be obtained from the plaintiff within a reasonable time.

Contrary to the judgment of the Court of first instance, it cannot be assumed that the plaintiff issued a subsequent instruction to dispose of the goods. An instruction within the meaning of § 418 HGB can be given implicitly. However, a refusal by the consignor to accept the goods, which the carrier, on its own initiative and contrary to the statutory obligation to obtain instructions (§ 419 para 1.1 HGB), intends to return to the shipper and deliver to the shipper due to the consignee's refusal, cannot be interpreted, without the existence of special circumstances, as an instruction to dispose of the goods in a cost-effective manner. A dispute between shipper and consignee regarding the acceptability or defectiveness of the delivered goods - a not uncommon occurrence in commercial practice - does not, in itself, provide sufficient grounds for concluding that the shipper and/or consignee intend to dispose of the goods without first resolving the underlying dispute and to commission the carrier (at their own expense) to dispose of the cargo.

An exclusion of liability under § 426 HGB ['The carrier is relieved of liability insofar as the loss, damage or delay in delivery was caused by circumstances the carrier could not avoid even by exercising the utmost diligence and the consequences of which the carrier was unable to prevent.': cp art 5.1 of the Hamburg Rules] is also not applicable here, as the loss is not based on circumstances that the defendant could not avoid even with the utmost care and whose consequences it could not avert. One of the essential duties of care of a carrier or freight forwarder is the protection of transported goods from loss. The compensation to be paid is governed by §§ 429 ff HGB. However, the amount of compensation to be paid is limited pursuant to § 431 para 1 HGB. Therefore, the amount to be reimbursed is 8.33 SDR [Special Drawing Rights] x 12 kg =) 99.96 SDR, which corresponds to EUR 122.53 [cp art 6.1 of the Hamburg Rules].

Section 435 HGB [cp art 4.5.e of the Hague-Visby Rules; art 8 of the Hamburg Rules] does not apply here. According to this provision, limitation of liability under § 431 para 1 HGB does not apply if the damage is attributable to an act or omission committed intentionally or recklessly by the carrier or a person named in § 428 HGB, with the knowledge that damage would probably occur. Contrary to the plaintiff's assertion, these conditions are not met. The plaintiff has not alleged, nor are there any apparent circumstances that could establish intent on the part of the defendant. Nor can it be assumed that the defendant acted recklessly with the knowledge of the probability of damage.

The plaintiff must, in principle, demonstrate and, if necessary, prove the conditions for the elimination of the statutory or contractual limitations of liability existing in favour of the carrier. The plaintiff therefore bears the burden to prove that the carrier or its employees acted intentionally or recklessly and with the awareness that damage would likely occur. However, the burden of proof incumbent upon the plaintiff can be mitigated by the fact that, given the differing levels of information available to the contracting parties, the carrier is obligated in good faith to provide detailed information on the specific circumstances of the incident, to the extent possible and reasonable. Such a secondary burden of proof on the defendant must be affirmed if the plaintiff's submissions suggest, with a certain degree of probability, that the defendant was grossly negligent, or if there are indications of such negligence arising from the undisputed facts. In that case, the carrier must substantiate what specific care it exercised to prevent the damage that occurred. If it fails to do so, the conclusion of gross negligence may be justified depending on the circumstances of the individual case.

According to these principles, the plaintiff has already failed to meet its (primary) burden of proof, so the defendant is not required to provide further evidence to exonerate itself under a secondary burden of proof (duty to respond). The mere fact that the shipment was lost while in the defendant's custody, and the plaintiff's assertion that it had no knowledge whatsoever of the defendant's internal organisational and security measures are insufficient to suggest 'with a certain degree of probability' that the defendant was grossly negligent. This follows from the generally accepted understanding of § 435 HGB, which makes the elimination of statutory or contractual limitations of liability in favour of the carrier subject to strict conditions (see eg BT-Drucksache 13/8445, p 72). In accordance with this understanding, the element of recklessness requires a particularly serious breach of duty, in which the carrier or its employees grossly disregard the safety interests of the contractual partner. The subjective requirement of awareness of the probability of damage occurring is a realisation that arises from the actor's reckless behavior and that damage is likely to occur. The safety precautions that the carrier must take depend on the circumstances of the individual case.

It is true that in the past, the Federal Court of Justice (BGH) has, in individual cases, deemed it sufficient to demonstrate qualified negligence if the cause of the damage remained 'completely unclear' (BGH, 5 June 2003 - I ZR 234/00, and 2 April 2009 - I ZR 60/06; see also BGH 19 July 2012 - I ZR 104/11; Saarland OLG 12 April 2006 - 5 U 418/05). The appeal overlooks the fact that - unlike in the decided cases - the loss of the cargo here did not occur during transport, but rather at a time when the defendant had done everything possible to properly fulfil its obligation to transport the cargo, and the fulfilment of its obligations under the freight contract failed solely because both the shipper and the consignee refused to accept the cargo. The fact that the defendant subsequently took the cargo into temporary storage at its distribution centre, and that the cargo became untraceable, does not automatically suggest particularly reckless conduct on the part of the defendant, despite an awareness of the likelihood of damage.

It must also be taken into account that more than three weeks passed between the delivery of the goods to the defendant's distribution centre after the plaintiff refused acceptance (22 March 2023) and the initiation of a trace request (17 April 2023), and more than five months passed until the plaintiff reported the loss (23 August 2023). The fact that locating a package like the one in question is made more difficult by such a passage of time, given the daily turnover at a company the size of the defendant, also argues against the likelihood of gross negligence and a corresponding secondary burden of proof on the part of the defendant.