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02 February 2005
In a case recently decided by the Federal Court of Justice, an insurer claimed indemnification from a fixed-cost freight forwarder for a total loss of cargo that occurred on its way from Germany to Tehran, Iran. The waybill issued by the forwarder named a company H as shipper, was not endorsed and was made up to the order of an Iranian bank as consignee. The plaintiff's insured, a company S in Iran, was named as "notify party". The goods were to be delivered to a company P in Tehran, named as consignee in another waybill issued by the actual carrier. The consignment was lost in transit in 1997. The plaintiff paid the cargo claim to his insured S and took recourse as the latter's legal successor. Within the one-year time limit, the plaintiff contacted the forwarder by fax requesting indemnification and attaching a copy of the waybill. The plaintiff alleged that he was in possession of the waybill at the ascertainment of damage, as P - acting in the capacity of S's receiving agent only - had already forwarded the waybill to him. Claim submissions were filed on March 11 2000. The defendant argued that the claim was time-barred as the one-year limitation period set forth in Article 32(1)(b) of the Convention on the Contract for the International Carriage of Goods by Road had elapsed. The regional court ruled in the plaintiff's favour, but the Düsseldorf Court of Appeal subsequently dismissed the plaintiff's action. The plaintiff appealed to the Federal Court of Justice.
The Federal Court of Justice upheld the appeal court's decision: the claim was time-barred. The fax from the plaintiff to the defendant within the one-year time limit did not suspend the period of limitations according to Article 32(2) of the convention. In order to suspend this period, a written claim notification must be sent by a party that is entitled to claim against the carrier under the contract of affreightment. With regard to claims under the convention, the shipper and the consignee with power of disposal are entitled to do this. The consignee, with regard to Article 13(1) of the convention, was not company S but rather company P in Tehran. The latter was named as consignee in the international consignment note. This entry was decisive. The fact that company S, as the buyer of the shipment, was consignee in the commercial perspective and was named as "notify party" in the waybill was irrelevant, as the delivery according to the contract of carriage has to be effected to the consignee agreed upon therein.
The plaintiff was not authorized to pursue a third party's right while sending written notification to the defendant. The valid authorization of a third party to assert another's right in its own name regularly requires the express approval of the actual right holder. The plaintiff was unable to prove that the written claim notification was sent with company P's express or implied authorization.
The decision confirms that the limitation period of Article 32(2) is suspended only if the written notification is effected by the shipper, the consignee or a third party in its own name with the express approval of the actual right holder.
The decision clearly shows that commercial aspects do not affect the validity of a claim notification. This might be considered as exaggerated formalism, as the case most likely would have been decided differently if company P had been identified as receiving agent to company S in the consignment note. However, commercial aspects are usually unknown to the carrier, which should be in a position to rely on the entries in the consignment note, as these - together with the agreement with the sender - are the only information available to the carrier. Therefore, this information should be decisive regarding the parties' right to claim suspension of the limitation period otherwise running in favour of the carrier.
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