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19 December 2012
On December 15 2011 the Federal Court of Justice clarified the land carrier's liability in a case of roll-on/roll-off (ro/ro) transportation. The court decided that the liability provisions of the Convention on Contracts for the International Carriage of Goods by Road (CMR) are not applicable under Article 2 of the convention, when the damage was caused by fire on the combined transport of a loaded truck on board a ferry.
The shipper instructed a main carrier transporting clothes from Turkey to Spain. The subcontractor of the main carrier brought the cargo by two trucks to the Turkish port of Pendik, where the trucks were loaded on board the ro/ro ferry Und Adriyatik. During the vessel's journey to Trieste, Italy, a fire broke out which resulted in the destruction of the vessel and its cargo. The shipper sued the main carrier in order to obtain compensation for the loss of the goods based on Article 17 of the CMR.
The court had to decide whether the main carrier was liable according to the CMR, or if the exemption of Article 2(1) was fulfilled, leading to the application of the liability regime of the sea carrier (Turkish shipping law referring to the Hague Rules).
The court had to clarify whether the following two crucial prerequisites of Article 2(1) were fulfilled:
The first aspect could not be solved with the German translation of the CMR, as only the English and French versions are binding. However, the English wording ("conditions prescribed by law") indicates that non-mandatory rules are sufficient, but the French wording ("dispositions imperatives") requires solely mandatory liability provisions.
The court considered the English version as decisive because Article 2(1) is based on a proposal made by the British delegation in English during the negotiations of the CMR.
The court asserted that liability provisions referred to in Article 2(1) could not be solely mandatory provisions, since this would mean that the Hague Rules would never fall under this exemption because their application depends on whether a bill of lading was issued. The court also took into account that the Hague Rules had already come into force when the CMR rules under negotiation, therefore Article 2(1) was created with the combined transport of a loaded truck on board a vessel in mind.
Finally, the court took guidance from Article 2(1) to synchronise the land transport carrier's liability with that of the sea carrier. The land transport carrier shall not be liable to a higher extent than what it can claim from the sea transport carrier under a recourse action. Consequently, the court ruled that the Hague Rules are covered by Article 2(1).
In respect of the second decisive prerequisite of Article 2(1), the court had to decide whether the fire on the vessel was considered as a specific danger of sea carriage, such as the sinking of the vessel or a heavy sea. The court held that fire in itself was not a specific danger to transportation, but under certain circumstances it must be regarded as such. The court pointed out that the danger of a fire on board a ferry is different to, for example, a fire on a truck, as a fire on a ferry can spread easily to other vehicles which cannot be moved. In addition, a fire on board a vessel can initially be combated with the vessel's own fire-fighting systems only.
The court assessed that the vessels' fire-fighting systems collapsed shortly after the outbreak of the fire because it spread to the engine room and destroyed the vessels' electricity supply. Under these circumstances, the court decided that the fire was an event which, to this extent, could have occurred only in the course of a sea carriage.
Accordingly, the court considered the prerequisites of Article 2(1) as fulfilled and applied the Hague Rules for the liability of the road carrier. The road carrier was, finally, relieved of all liability because of the fire defence of the Hague Rules.
With this judgment the court removed any uncertainty regarding the interpretation in Germany of Article 2. Before the decision, various courts of lower instance had upheld the carrier's liability due to Article 17, or had rejected claims referring to the fire defence of the Hague Rules. This inconsistency has now ended with the Federal Court of Justice's decision, which is good news for road carriers performing parts of their carriage on ro/ro ferries.
For further information please contact Justin Kotthaus or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 77 97 0), fax (+49 40 31 77 97 77) or email (email@example.com or firstname.lastname@example.org).
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