Dr. Marco G. Remiorz, born 1972, qualified as a German lawyer in January 2001. After reading law at Bonn University and Université de Lausanne he worked with the legal department of a major German subcontractor for the automotive industry and thereafter moved to an international law firm in Fresno, California. Marco Remiorz was employed with a transport- and insurance law orientated law firm in Hamburg from 2001 until 2004. He obtained his legal doctorate at the Technical University of Dresden in 2005. Dr. Remiorz has been with Dabelstein & Passehl since April 2004 and became Partner in January 2008.
His special areas of activity are merchant shipping law (with emphasis on P&I and recovery), international carriage by road and by air and freight forwarding law. His clients include globally operating freight forwarders, manufacturers and insurance companies whom he advises on German Freight Forwarders Standard Terms and Conditions (ADSp), domestic and international carriage by road (CMR, German Commercial Code) and air transport law as well as project and logistics contracts.
In a recent case a cargo insurer took recourse against its insured's freight forwarder for damages for loss of cargo during transportation by air. The defendant argued that its liability was limited to Article 22 of the Montreal Convention. The plaintiff stated that the defendant's liability was unlimited as the defendant had waived the limitation of liability by including the standard terms in the contract.
In two recent final decisions the Fiscal Court of Hamburg declared the Value Added Tax (VAT) Act partly inapplicable and partly unsuited to literal interpretation, in accordance with the EU VAT Directive. The fiscal court has followed the European Court of Justice and the established judicial practice that national courts must interpret the national law in accordance with EU directives.
The Federal Court of Justice recently ruled on a case in which the opposing parties had entered into an international sales contract containing the clause 'delivered duty paid Cologne (Germany)'. The court decided that in such cases the German courts have jurisdiction over claims seeking compensation for damages.
The grounding of the Ever Given container vessel in the Suez Canal caused considerable congestion for many other vessels which were trapped on both sides of the canal. As such, cargo interests – such as shippers' and consignees' respective cargo insurers – as well as the sea carriers of the respective vessels and the initial (multimodal) carriers and forwarders are faced with damages arising from these delays. This article considers the issue of liability for delays under German law.
A recent decision highlights that it is not a precondition of an obstacle to carriage or delivery that the agreed carriage has become impossible. Rather, it is sufficient that the transport can no longer be performed in accordance with the contract. Moreover, such an obstacle exists if the carrier loses possession of the goods because the sub-carrier now transports the goods under a freight contract concluded directly with the consignor.
In a recently published decision, the Würzburg Regional Court held that if a carrier does not submit a single offer to the consignor for carriage by different means of transport for the entire route as requested, but rather makes separate offers for the inland and ocean-going routes, and these offers are accepted by the consignor, it is not a true multimodal contract, but rather an inland waterway contract and a separate ocean-going contract.
In 2018 the Hamburg Higher Regional Court ruled on a damages claim arising from the loss of deck cargo during a sea voyage. The court had to examine under what circumstances bodies acting on behalf of a carrier have acted with gross negligence where cargo goes overboard due to inadequate lashing or securing. In maritime transport, a gross organisational fault on the part of bodies acting on behalf of a carrier breaks the limitation of liability.
Legal clarity on the exact scope of the criminal and civil liability penalties of the EU Ship Recycling Regulation in Germany and their extent will be reached only when the regulation is transposed into national law. The enforcement provisions are expected to be based on German criminal law and to be comparable with the Waste Shipment Act, which implemented the EU Waste Shipment Regulation.
In a March 2019 case, the Hamburg Higher Regional Court had to decide whether the claimant had a control and inspection duty under the Commercial Code and, if so, to what extent the damage should be reduced for reasons of contributory negligence. The decision clarifies that shippers can rely on carriers to provide a sound transport vehicle.
Federal Court of Justice case law suggests that, in multimodal transport cases, voyages always have a series of sections and there are no stages without sections. However, a recent Hamburg Regional Court decision suggests that there may be transport stages in a multimodal transport system that cannot be attributed to a particular section.
The Freight Forwarders' Standard Terms and Conditions (ADSp) are general terms of service recommended by several trade associations. In a recent non-published decision, the Dresden Higher Regional Court addressed whether, in addition to the place of jurisdiction specifications in Section 30.3 of the ADSp 2017, the place of jurisdiction rules set out in Section 30(1) of the Code of Civil Procedure also apply in legal disputes against freight forwarders.
The distinction between freight and forwarding contracts is a common subject of legal disputes in Germany, as freight forwarders are generally liable only for organisational or selection faults and can usually relieve themselves of liability if they can prove that they chose a conscientious carrier. A recent Verden Regional Court ruling on the liability of a carrier for loss of goods and delayed delivery provides useful clarity in this context.
The Higher Regional Court of Dusseldorf recently confirmed the underlying principle of Article 18(2)(d) of the Montreal Convention – namely, that air carriers cannot be held liable for damages which are entirely outside their sphere of risk and influence. However, this decision is also a useful reminder that an exclusion of liability clause is not a free pass for carriers.
Daimler, MAN, Volvo/Renault, DAF, Iveco and Scania are facing billion-dollar damages claims from carriers for illegal price fixing. To date, more than 7,000 transport companies from 26 countries have filed over 300 claims in excess of €1 billion in the German courts. However, the spillover effects on the transport sector remain unclear. A recent Dortmund Regional Court decision provides much-needed clarity in this regard.
A hard Brexit would increase liability risk for EU carriers and freight forwarders, and disputing parties would need to overcome a number of factual and legal hurdles. Before undertaking cross-border transports, carriers are well advised to make clear agreements with senders in order to clarify that customs clearance delays are expected for an unforeseeable duration and request instructions from senders in accordance with the Convention on the Contract for the International Carriage of Goods by Road.
A recent Bremen Regional Court decision serves as a stark reminder to carriers that all contractual obligations, particularly those relating to security instructions, must be fulfilled and that any carrier found to have breached these obligations could face unrestricted liability in the event of damages. Carriers should carefully assess the feasibility of implementing any listed safety instructions before accepting transport contracts.
The Berlin Administrative Court recently considered the action of an environmental association admissible but unfounded. The association had sought a declaration that introducing long trucks or 'gigaliners' to regular operation and extending the trial operation of certain extra-long trucks was illegal. While this judgment strengthens the road transport route, given that the operation of extra-long trucks is limited by the density of the cargo, the use of gigaliners might not affect competition with rail transport.
The Federal Court of Justice recently ruled on two risk exclusion clauses in transport insurance policies that are especially relevant for the export and import industries. While the decision has resolved some of the legal uncertainty surrounding transport insurance, it will likely apply to all types of insurance. As far as risk exclusion clauses are concerned, the court has made it clear that exclusion clauses should be interpreted restrictively.
When a sea carrier files for insolvency in the course of a sea carriage, considerable additional costs and expenses occur in the effort to deliver the cargo to the consignee. German law applies if a German freight forwarder is instructed with a multimodal carriage including a sea leg. This results in the general legal obligation for the forwarder to conduct the transport itself or with subcontractors in order to deliver the cargo to its destination for the fixed freight agreed.
The Higher Regional Court of Hamburg recently clarified the fact that goods having been packed in a container made available to a shipper by a carrier on a decoupled trailer belonging to the carrier is insufficient grounds for the carrier to have accepted the goods for carriage. The court set out the prerequisites for a carrier's acceptance of goods under Section 425 of the Commercial Code, as established in case law.
The Federal Court of Justice recently ruled that the loss of transported goods occurs when a freight forwarder or carrier is unable to deliver the goods to the authorised recipient for an indefinite time. It is sufficient that late delivery is unlikely or unacceptable. Once the goods are lost, it is irrelevant whether they are located.
If carriers enter a contract to undertake cross-border transport for a new client, it is advisable to ascertain the shipper's experience regarding customs duties and necessary documentation. Carriers otherwise risk being held responsible if the wrong customs clearances lead to unexpected payments. The Aurich District Court recently dealt with a typical case that demonstrates the pitfalls of a contract for transportation and customs declaration of cargo.
A tanker barge was anchored in an area where anchoring was prohibited. During a manoeuvre, the vessel ran aground and was secured with an anchor, blocking the marina entrance and preventing the claimants' vessels from leaving the marina. The claimants claimed damages on the basis of Section 823 of the Civil Code, asserting that their property had been interfered with.
One of the main reasons that the Nairobi International Convention on the Removal of Wrecks entered into force was the lack of authority of the coastal states within the exclusive economic zone (EEZ). This regulatory gap has now been filled, but the consequence – particularly for Germany – is an intricate situation due to the different legal frameworks between the convention regulations applicable in the EEZ and the national regulations applicable in the German territorial sea.
The leading unions of forwarders and cargo interests have both agreed to recommend the new Freight Forwarders' Standard Terms and Conditions (ADSp 2017). The ADSp 2017 are the result of long negotiations aiming to modernise the former version of the ADSp adopted in 2003. The ADSp 2017 will clarify many aspects of daily business; however, daily practice and the courts will ultimately decide on the relevance of some of the clauses, which might be held invalid under the law.
In view of the Baltic and International Maritime Council's recent decision to incorporate the York-Antwerp Rules 2016 into its standard contracts, the amendments appear to have been accepted by the ship-owning community. Under German law, the York-Antwerp Rules are treated as standard terms and conditions. As such, they are subject to the Civil Code sections which deal with unfair contract terms.
The Koblenz Regional Court recently decided that according to the Convention on the Contract for the International Carriage of Goods by Road (CMR), a carrier's direct claims against the consignee are barred, even where the sender faces insolvency. The decision is not yet legally binding but it has clarified that a CMR freight contract should be for the benefit of third parties.
The Federal Court of Justice has upheld a finding that a contract entered into between a terminal operator and a charterer was not a contract of carriage. In particular, the courts did not err by deviating from a line of precedents according to which a contract on cargo handling is usually subject to land transportation law. The case at hand could be distinguished from those cases as the terminal operator was also obliged to store the goods.
The Federal Court of Justice recently held that a warehouse keeper's duties to select suitable storage facilities and to notify the principal when moving goods to a third-party warehouse comprise fundamental duties of contract. The breach of such contract deprives the warehouse keeper of the right to limit its liability. The notification must be so clear that it leaves no doubt that the goods have already been moved.
The Federal Court of Justice has clarified that independent and unauthorised actions will not establish necessary custody of damaged goods for strict liability. Any freight forwarder on a fixed-price contract should pay attention to briefing its staff regarding their involvement in loading operations. In the absence of special contractual stipulations, staff should abstain from loading, as possible neglect may lead to liability.
A district court has denied a freight forwarder's liability for loss of goods due to the sinking of a vessel which had been classified without complaints ahead of its final journey. However, it emerged that cracks in the hull had gone undetected. The court decided that the defendant was not responsible for its lack of knowledge of the vessel's unseaworthiness.
The Federal Court of Justice has clarified that the legal nature of a claim against the first carrier in a recent case had no influence on the time bar of the recourse claim of the first carrier against the sub-carrier, according to the Commercial Code. The court held that it made no difference whether the claim against the first carrier was governed by transportation or shipping law.
If a forwarder is unable to pay the freight to the carrier, the carrier may decide to invoke a right of retention regarding the goods in its custody based on a contractual or statutory lien. If the carrier has no lien, there is a high risk that it will be held liable for the cargo value and financial losses. The carrier should seek legal advice before exercising a lien.
The Federal Court of Justice recently ruled whether a freight forwarder was liable for loss of goods without limitation due to qualified fault. The court held that the freight forwarder did not necessarily act with qualified fault by leaving a vehicle in an unguarded industrial estate. Unlimited liability is justified only if circumstances conclude that the risk of loss is obvious and the freight forwarder ignores this risk.
In the course of the reform on the law on seafarers, Germany also enacted the Offshore Working Time Regulation. The regulation applies to both German-flagged and foreign-flagged offshore vessels. Although it is too early to predict how strictly the authorities will enforce the new legislation, shipowners and charterers of offshore vessels should not risk breaching contracts with their customers.
The Federal Court of Justice recently ruled on the requirements for obligatory investigation and documentation measures applicable to the forfeiting of a freight forwarder's right to limit its liability in case of loss of goods during transportation. The court pointed out that a forwarder must investigate and document the relevant facts immediately after the loss of goods in order to have sufficient proof in any legal dispute.
The Federal Court of Justice recently clarified the rules pertaining to the freight forwarder's burden of proof and the scope of compensation in the case of partial loss of goods of exceptionally high value. The court confirmed that the burden of proof rests with the claimant, but under certain circumstances the claimant may invoke a derivative burden of proof for the defendant.
The German Parliament recently approved new rules on the use of private maritime security companies onboard German flagged vessels to fight piracy. Private maritime security companies must now be licensed under the new scheme, which is far more demanding than its predecessor. The new rules provide a clear legal framework for the licensing process and ensure that the quality of services is safeguarded.
The Federal Court of Justice recently clarified the land carrier's liability in a case of roll-on/roll-off (ro/ro) transportation. The court decided that liability provisions are not applicable when damage is caused by fire on the combined transport of a loaded truck on board a ferry. The court's decision is good news for road carriers performing parts of their carriage on ro/ro ferries.
The Hamm Court of Appeal recently clarified the extent of a freight forwarder's liability for damage which occurred due to self-evident improper loading. The court found that it is for the shipper to load and secure the goods, and if it is intended that the freight forwarder carry out these activities then this obligation must be transferred explicitly.
The Federal Court of Justice recently clarified the basis for a claim for loss sustained as a result of defective packaging provided by a freight forwarder. The court confirmed that a freight forwarder working on a fixed-price basis is liable pursuant to Section 461(II)(1) of the Commercial Code because of improper packaging based on a secondary obligation.
The Federal Court of Justice recently clarified the period of liability for air carriers. In particular, the court defined carriage by land which occurs in the fulfilment of a contract for carriage by air, for the purpose of loading, delivery or transshipment under Article 18(4) of the Montreal Convention.
By a 2010 judgment the Düsseldorf Higher Regional Court clarified whether Article 3 of the Convention on the Contract for the International Carriage of Goods by Road (CMR) applies where an instructed actual carrier later turns out to be an impostor. In a grey area of land transport law, the higher regional court judgment fills a gap and provides legal certainty. It will hopefully be followed by the courts of other CMR jurisdictions.
The Federal Court of Justice has ruled on the German limitation provisions for claims in connection with the carriage of goods by road. The court overruled its previous judgment and held that the three-year limitation period in cases of wilful or equivalent reckless misconduct was not only applicable to claims for damages, but also to claims for specific performance, including claims for freight.
In a recent case the court of appeals held that a defendant carrier had damaged the plaintiff's goods negligently and was therefore liable in tort, in accordance with the provisions of the Civil Code, and that the damage had occurred after the carrier's period of custody, such that special regulations on limitation of time in the Commercial Code did not apply. However, a federal court repealed this judgment.
In a recent case the plaintiff cargo insurers sought recourse against the insured's freight forwarder for damage incurred to cargo. A carrier specified in the contract performed the ocean carriage with a liability for loss of and damage to the cargo limited to £100 per package. The claim exceeded the liability amount and the court held the defendant liable up to 2 Special Drawing Rights per kilogram.
Compared to other jurisdictions, in Germany it appears to be relatively easy to break the limits of liability set out by Article 29 of the Contract for the International Carriage of Goods by Road. However, recent Federal Court decisions have shown a new tendency to limit the extent of liability by accepting a carrier's defence claim of the shipper's contributory negligence.
New Logistic Standard Terms and Conditions minimize the liability of a logistic service provider for the faulty performance of value added or additional services. The conditions complement the Freight Forwarders Standard Terms and Conditions and are applicable for logistic services which are not usually provided by freight forwarders with regard to the carriage or storage of goods
Section 421(1)1 of the Commercial Code states that, on arrival of the goods at the point of delivery, the consignee is entitled to request that the carrier deliver the goods against performance of the obligations arising out of the freight agreement. However, a consignee which asserts its rights pursuant to Section 421(1)1 must still pay the freight charges due, up to the amount which results from the waybill.
A recent decision confirms that the limitation period of Article 32(2) of the Convention on the Contract for the International Carriage of Goods by Road is suspended only if the written notification is effected by the shipper, by the consignee or by a third party in its own name and with the express approval of the actual right holder.