The plaintiff was the cargo insurer of I GmbH, Pirmasens (the policyholder). After settling a cargo damage claim, the plaintiff claimed against the defendant under the assigned rights of its policyholder. The policyholder had bought a batch of Hong Kong electronic components on an FOB basis from T Co Ltd, Taiwan. The policyholder commissioned the defendant, a freight forwarding company, to arrange carriage by sea at a fixed cost from Hong Kong to Hamburg and then by road to the policyholder in Pirmasens. The defendant passed on the order for sea transport from Hong Kong to Hamburg to K Logistics Co Ltd, Hong Kong. The shipment was loaded on 6 April 2013 in Hong Kong on the container ship MV M. On 4 June 2013, K issued a bill of lading. In the 'No. of Pkgs. or Shipping Units' it stated '6 PALLETS'. In the 'Description of Goods & Pkgs.' section it stated 'STC OF 199 CTNS OF Varistor/Thernistor'. The 'Gross Weight' was given as 1,762 kgs.

After a stopover in the port of Singapore, MV M broke up on 17 June 2013 in the Arabian Sea. All of the cargo was lost. The plaintiff paid compensation of EUR 30,279 to its policyholder.

The plaintiff asked the defendant to issue a bill of lading to it. As a justification, it argued that the bill of lading played a role with regard to the assessment of maximum liability according to § 504(1) HGB [Commercial Code], which items were to be regarded as the relevant items, and whether a transport document had been issued. In this respect, it was only about the assessment of maximum liability.The plaintiff argued that, based on the kilogram alternative in § 504(1) HGB, the limited liability amount was 3,524 SDRs (1,762 kg x 2 SDRs). If one calculates on the six pallets taken over for transport, however, the alternative packaging produced an amount of 4,000.02 SDRs (6 x 666.67 SDRs). Correctly, however, the alternative package limitation should be measured on the basis of the 199 boxes that were stowed on the total of six pallets. This resulted in a maximum amount of 132,667.33 SDRs (199 x 6666.67 SDRs). In view of the payment of EUR 30,297.00 required under the claim, the maximum liability would no longer play a role. If, on the other hand, the maximum package amount were calculated based on the six pallets, this would lead to a dramatic reduction in the defendant's liability. According to the container clause of § 504(1) HGB, the information in a transport document, ie in a bill of lading or a sea waybill, was relevant for the issue of the relevant item. What was meant is the transport document issued by the carrier, here the defendant. However, the defendant did not issue a transport document. There was only the bill of lading of the subcontractor K, employed by the defendant for the transport. The defendant was still, in accordance with § 514 HGB, obligated to issue a bill of lading, since it had taken over the goods as the carrier for carriage. Section 513(1) HGB applied to the request of the shipper, here the policyholder. The fact that the goods had since been lost did not mean that the right to issue the bill of lading was no longer applicable, because otherwise it would be possible for the carrier to obtain a better liability position by not fulfilling its obligations.

The defendant took the view that the Chinese carrier K had already issued a bill of lading that had been accepted by C, the policyholder. The issuance of a further bill of lading could no longer be requested - moreover around one year after the ship's sinking. The defendant was also not liable for the damage caused by the loss of cargo. The MV M was indeed unseaworthy, but that was not recognisable when starting the journey in Hong Kong, so according to § 498(2) HGB, the defendant was free of any liability. Finally, the defendant invoked art 10 of the LLMC 1976 and asserted that its alleged liability was limited according to the liability of limitation proceedings commenced at the instigation of M Lines before the Tokyo District Court.

After taking evidence, the Regional Court only upheld the claim with regard to the payment of a partial amount of EUR 4,777.38. It rejected the claim for a bill of lading to be issued. The plaintiff appealed. The defendant cross-appealed.

Held: The plaintiff's appeal is rejected. In response to the defendant's cross-appeal, the judgment of the Hamburg Regional Court is partially amended and reworded as follows: The defendant is ordered to pay the plaintiff EUR 4,577.38 plus interest. Moreover, the application is dismissed. The more extensive cross-appeal is rejected.

The plaintiff cannot, from the transferred right of the policyholder, require the defendant to issue a bill of lading with the content described as 199 boxes.

According to § 513(1) HGB, the carrier must issue a bill of lading to the shipper upon request. According to § 514(1) HGB, the bill of lading must be issued as soon as the carrier has taken over the goods. If the policyholder had asked the defendant to issue its own bill of lading at this point in time, the defendant would have been obliged to do so. The policyholder did not ask for that. Whether and, if so, under what conditions the shipper can in principle be obliged to issue a bill of lading to the shipper at his request even after the goods have perished cannot be decided at this point. In any case, this must be denied if the subsequent issuance of a bill of lading is required, as is the case here, solely for the purpose of being able to use the container clause of § 504(1) HGB.

The Court follows the view that the admission of a subsequent request for the issuance of a bill of lading within the meaning of § 513(1) HGB only for the purpose of establishing the requirements of the container clause would result in overwriting these requirements, because the container clause would then always apply. Such an extension of liability only after the occurrence of the damage could no longer be reconciled with the basic idea of the regulation of § 504(1) HGB, which is taken over from the Hague-Visby rules, which consists in the fact that the contracting parties can decide by designing the transport document how the liability amount is to be calculated.

The Regional Court rightly did not order the defendant to pay more than EUR 4,777.38 plus interest. The plaintiff cannot claim compensation for the full damage of EUR 30,297.00. According to § 504(1) HGB, the compensation to be paid in accordance with §§ 502 and 503 HGB for loss or damage is 666.67 units of account for the piece or the unit or an amount of 2 units of account for the kilogram of the gross weight, whichever is higher. The Regional Court correctly calculated the maximum amount of liability according to the package alternative and based it correctly on only six pieces, the number of pallets, and not on 199 pieces, the number of cardboard boxes stacked on the pallets. This results in a maximum liability amount of EUR 4,577.38 (6 pallets x 666.67 SDR = 4,000.02 SDR x EUR 1.14434 (value on 17 June 2013) = EUR 4,577.38).

The plaintiff cannot assert a higher maximum liability amount, calculated on the basis of 199 packages (boxes). In its judgment of 8 December 2011, 6 U 205/10 (TranspR 2013, 35, 37 Stellar Pacific) on § 660(2) HGB (old version), the Court decided that for the purposes of this provision a bill of lading means only a bill that was issued by the carrier who is also held liable for any damage. Information in third-party bills of lading does not have to be attributed to the carrier. According to this, the defendant, who has not issued its own bill of lading, does not have to account for the fact that the 199 boxes stacked on 6 pallets are specified in the bill of lading issued by its subcontractor K.

The Court adheres to this view also for the container clause of § 504(1) HGB (new version). If a container, pallet or other loading device is used to combine freight items, according to this provision, every package and unit that is specified in a transport document as being contained in such a loading device is deemed to be the relevant package or unit. An important difference in the new version, however, is that it no longer only focuses on the information in a bill of lading, but in a 'transport document' and thus also includes the sea waybill (§ 526 HGB). However, this extension of the scope of the container clause does not change the fact that a carrier who has been sued for cargo damage only ever has to obtain information in a transport document about packages or units contained in an article of transport if it has issued the transport document itself, be it a bill of lading or a sea waybill. However, the bill of lading-specific arguments that the Court cited in the Stellar Pacific judgment (TranspR 2013, 35, 37) cannot be transferred to situations in which a sub-carrier 'only' sends a sea waybill with information within the meaning of § 504(1) HGB, but the main carrier has not issued a transport document. However, this does not entitle the Court to distance itself from the previous case law as a whole, nor to limit this case law to cases in which the subcontractor has issued a bill of lading. It is crucial that the respective contractual relationships between the shipper and the main carrier on the one hand, and between the main carrier and the sub-carrier commissioned by it, must be kept separate and agreements from the sub-freight contract cannot be transferred to the main freight contract and vice versa.

In addition, it is also important in this context that the ratio of the container clause in § 504(1) HGB is to leave it to the contracting parties, through the design of the transport document, how the liability amount is to be calculated. Without such an agreement, § 504(1) HGB applies to the maximum amount of liability. If the charterer wants to enforce a higher maximum liability amount, it must insist against its contractual partner, the main carrier, that it has a bill of lading with the information about packages and units according to § 504(1) HGB. If the charterer does not request this or if the main carrier does not agree, in the event of damage, the statutory maximum amount of liability must be calculated in accordance with § 504(1) HGB.

The view taken by the plaintiff cannot be reconciled with the principle that, in the opposite direction, the main carrier cannot invoke a further limitation of liability in the sub-freight contract in relation to its contractual partner, the charterer, compared to the main freight contract. In its judgment of 11 January 2007, 6 U 66/06 (TranspR 2007, 253, 255), the Court decided that a fixed-cost freight forwarder who according to §§ 459, 606 HGB (old version) is liable as the carrier, cannot assert further limitations of liability against its client if the client has commissioned it with carriage of goods by sea. There it was a state-owned shipping company, which in its bill of lading conditions, compared to § 660 HGB (old version), had agreed a lower weight liability. The freight forwarder who makes use of the main freight forwarder under the contract must only raise objections from the contract concluded with the main freight forwarder, not also those arising from the contractual relationship between the main freight forwarder and the sub-freight forwarder. Such 'enforcement' of limitations of liability from the contract between the main and sub-carriers vis-à-vis the carrier is also not required in good faith, since the parties should generally be aware of the disadvantageous recourse options when the contract is concluded with the carrier. The Court also decided this in a case in which the maximum liability according to US COGSA was only agreed in the sub-freight contract (TranspR 2008, 213, 216) and on an inland ship collision, in which an exclusion of liability due to nautical fault was only agreed to in the sub-freight contract (TranspR 2014, 228, 233). However, there is no objective reason to allow the freight forwarder to assert a liability extension from the sub-freight contract that is more favourable for it, also against the main freight carrier, if, conversely, the main freight forwarder is prevented from opting for a more favourable liability relief from the sub-freight contract.

The Court has already stated in its judgment in the Stellar Pacific case that the reverse of the container clause in § 660(2) HGB (old version) means that when goods are transported in a container, the container is the package or unit within the meaning of § 660(1) HGB (old version) (TranspR 2013, 35, 37). Basically, it makes no difference whether a bill of lading does not contain any information or does not exist. The Court also follows these considerations for § 504(1) HGB. The system of the new regulation also suggests that para 1 contains the general regulation, whereas paras 2 and 3 cover the case where the carrier has issued a transport document.

The defendant's cross-appeal is largely unfounded. It is only successful in terms of interest and in so far as the Regional Court has ordered the payment of EUR 4,777.38 due to a mistake, although the maximum amount of liability that is applicable in the Regional Court's view is only EUR 4,577.38. Otherwise the cross-appeal is unfounded. The defendant is obligated to pay the plaintiff an amount of EUR 4,577.38. The liability of the defendant as a carrier arises from the fact that the policyholder has commissioned it to arrange the transport at fixed costs and the goods have been lost in its custody on the sea route (§§ 459, 498(1) HGB).

The defendant cannot be released from liability according to § 498(2) HGB.The Regional Court, relying on expert evidence, formed the conclusion that the ship's command, having in the port of Singapore detected torso bending ('hogging') was obliged to investigate the causes of the deformity before continuing the journey. In so far as the defendant points out that it depends on whether a lack of seaworthiness could not be discovered at the start of the voyage, here in Hong Kong, this is true with regard to § 498(2) HGB. However, this provision only justifies an additional obligation of the carrier to provide relief to the general regulation of § 498(2) HGB in cases in which the ship was not seaworthy and the loss or damage is likely to be attributable to this. Even if a certain lack of seaworthiness could not be discovered when starting the voyage, the carrier must therefore still in accordance with § 498(1) HGB prove that the loss or damage is due to circumstances that could not have been averted through the due diligence of a proper carrier. However, this is not the case here because the ship's command continued the voyage in Singapore despite the clear warning signals that the integrity of the hull was impaired.

The Regional Court has also rightly stated that the defendant cannot invoke liability restrictions under the LLMC 1976 after a liability fund was set up at the request of M before the District Court in Tokyo. The defendant is only liable as a fixed-cost freight forwarder in accordance with § 459 HGB and is therefore not one of the persons authorized to limit liability according to art 1.2 LLMC 1976. At best, that would be worth considering if the defendant were to be regarded as a 'slot charterer', which is disputed in the literature.

The defendant cannot plead that a liability fund was set up at the request of M and that M's liability is limited according to the LLMC 1976. The establishment of a liability fund according to art 11 LLMC 1976 has the consequence, according to art 12 LLMC 1976, that the creditors are equally satisfied. In this respect, interests are comparable to those in insolvency proceedings. However, it is not a case of a joint and several debtors' settlement if one of the joint and several debtors becomes insolvent. Rather, it is precisely in the spirit of a joint and several debt that a creditor still has claims against one of the joint and several debtors if the other is insolvent.