Aviation - Germany

In a recent case before the County Court of Hamburg, the plaintiff, a cargo insurer, sought recourse against its insured's German freight forwarder for damages for loss of cargo during transportation by air.

Facts

The insured company and the freight forwarder had entered into a contract whereby the freight forwarder was to organize the transport of cargo from Germany to the United States. When concluding the contract, which provided for the hiring of the service at a fixed remuneration, the defendant had explicitly expressed that the freight forwarder's standard terms and conditions applied to the contract. The cargo was lost while in the care and custody of the defendant's subcontractor.

The defendant argued that its liability was limited by Article 22 of the Montreal Convention. The plaintiff stated that the defendant's liability was unlimited since the defendant had waived the limitation of liability set forth in Article 22 by incorporating the standard terms and conditions into the contract. In particular, Section 27 of the standard terms and conditions stipulates that the limitations of liability are not applicable in case of gross negligence, as in this case.

Decision

The County Court of Hamburg upheld the claim and ordered the defendant to pay all damages claimed. As the parties had agreed on a fixed remuneration, the defendant was held liable to the same extent as a carrier. The defendant had waived the limitation of liability according to Article 25 of the convention by incorporating the standard terms and conditions into the contract.

Section 27 of the standard terms and conditions stipulates that the limitation of liability does not apply in cases of intent or gross negligence. However, in case of damage, the standard terms and conditions do not include provisions on limitation of liability, but instead refer to the statutory limitations. Statutory limitation in respect of air transport is set out in Article 22. Therefore, by making the standard terms and conditions and in particular Section 27 an integral part of the contract, the defendant had waived the statutory limitation of liability provided for by the convention. Therefore, Section 27 must be qualified as a waiver of the limitation of liability in terms of Article 25 of the Montreal Convention.

Comment

This decision highlights a need for action on the part of German freight forwarders. In order to maintain the limitation of liability stipulated in the convention, freight forwarders must indicate explicitly when entering into contracts that Section 27 of the standard terms and conditions is not meant to be a waiver in the meaning of Article 25 of the convention. Until such an amendment is incorporated into the text of the standard terms and conditions, freight forwarders working on the basis of the standard terms and conditions should add an indication to this effect to their individual offers, booking confirmations and contracts.

For further information on this topic please contact Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 77 970) or by fax (+49 40 31 77 97 77) or by email (m.remiorz@da-pa.com).