Facts
The claimant commissioned the
first defendant with the inland transport of de-icing fluid for an airport. In
addition, the claimant commissioned the second defendant to inspect the cargo
upon loading. The actual transport was carried out by a sub-contractor (the
intervening party) commissioned by the first defendant.
Prior to loading, the second
defendant took samples from each of the vessel's four tanks (despite its
contractual obligations extending to only the inspection of the cargo). No
abnormalities were found and the second defendant issued a cleanliness report.
However, subsequent to the loading, the second defendant found brown particles
on the product surface, which were identified as remnants of the last product
carried in the tanks (Hamino, a wheat-based natural product). On discharge,
another type of particle was found in the de-icing fluid. This was identified
as detached coating from the vessel's tanks. The claimant held the first and
second defendant liable for the damage caused by the contamination.
The key issue to be decided by the
Hamburg Higher Regional Court was whether the claimant had a control and
inspection duty under Section 425(2) of the Commercial Code and if so, to what
extent the damage should be reduced for reasons of contributory negligence.
The first-instance court ruled
that the intervening party's failure to provide a vessel with clean tanks
amounted to a qualified fault, depriving the first defendant of the right to
limit liability. On the other hand, the first defendant was liable for only
two-thirds of the damage, as the claimant had contributed to one-third of the
damage by failing to adhere to its duty to inspect and control the tanks prior
to loading. The court considered that the claimant was subject to such duty as
it had failed to inform the first defendant that the product required a minimum
degree of cleanliness. The first defendant and the intervening party appealed.
The second defendant was not found liable, as its contractual obligations had
not extended to inspection of the tanks. This part of the decision was not
appealed.
The Hamburg Higher Regional Court
upheld the operative part of the first-instance decision, but with a different
reasoning.
First, it overruled the first-instance
court's conclusion that the first defendant was liable without a right to limit
liability. Neither the facts established by the first-instance court nor the
content of the claim submissions led to the conclusion that the actual carrier
had caused the damage through qualified fault. Among other things, it was
neither argued nor proven that the actual carrier had had any knowledge of the
flaking coating or remnants from the last cargo.
Second, the Hamburg Higher
Regional Court rejected the appealing parties' argument that the first
defendant was exonerated from liability under Section 427(1)(4) of the
Commercial Code as the damage had been caused by the natural condition of the
goods. The court concluded that it was obvious that contamination from the
detached coating in the vessel's tank had nothing to do with the natural
condition of the goods. This was regardless of whether there were other types
of goods that would not suffer damage from such contamination, as argued by the
appealing parties. As the defence had already been rejected for this reason,
there was no need for the court to examine whether the natural condition of the
de-icing fluid could be affirmed in relation to the remnants from the previous
cargo (the appealing parties argued that this was the case due to how the fluid
was misted with fine nozzles on the wings of aircraft and was as such sensitive
to contamination).
Third, the Hamburg Higher Regional
Court overruled the first-instance decision that the claimant had contributed
to one-third of the damage by failing to adhere to its control and inspection
duties. The court stated that it is primarily the obligation of carriers to
ensure that goods are duly transported. Just as shippers can rely on carriers
to provide a clean vehicle, they also rely on the fact that goods are
transported in sound tanks and will not become contaminated by flaking coating.
Shippers do not have to examine vehicles, except in cases of known or obvious
defects. In the present case, it had not been demonstrated that the tanks'
defects were evident at first sight. Further, even if the second defendant's
negligence could be attributed to the claimant, in view of the carrier's
obligation to know its vehicles used for transport, the negligence would not
exceed 10% to 20%. For procedural reasons, the court did not have to make a
final decision on this issue.
The decision clarifies that
shippers can rely on carriers to provide a sound transport vehicle. In
particular, shippers have no duty to inspect their cargo holds for cleanliness
or flaky coating that may contaminate goods. An exception applies only if a
defect is known to the shipper or evident at first sight. However, even then,
in apportioning negligence between carriers and shippers, considerable weight
should be attached to the fact that carriers must know their vehicles and as a
result their contributory negligence is unlikely to exceed 10% to 20%.
