The plaintiff, a fixed-cost freight forwarder, asserted against its principal (the defendant) a freight claim of €190,000 under a multimodal transport contract (road, inland waterway and sea vessel) from Germany to Sweden.(1)
The freight contract was only partially executed by the plaintiff, which had commissioned the intervener as sub-carrier with the transport. However, after there had been a dispute with the plaintiff concerning the amount of the freight and the plaintiff had refused to continue the transport at the port of Hamburg without payment of the freight claimed and had threatened to exercise its lien, the defendant in turn commissioned the intervener to continue the transport from the port of Hamburg. Consequently, the plaintiff was no longer able to carry out the transport as agreed because the intervener was no longer acting as the plaintiff’s sub-carrier and thus no longer gave the plaintiff possession of the goods transported. The defendant subsequently terminated the contract of carriage with the plaintiff.
The Essen Regional Court only partially upheld the action.
The plaintiff’s appeal was partially successful. The court found that the plaintiff was not entitled to the full agreed freight under Section 420(3) of the Commercial Code (HGB). According to Section 420(3)(1) of the HGB, carriers retain claims to freight if the carriage is impossible for reasons attributable to a consignor’s sphere of risk or which occur at a time when the consignor is in default of acceptance.
In the case at hand, the carriage of goods had been prematurely terminated due to an obstacle to delivery. 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. Such a situation arose in the case at hand because the defendant concluded a new contract of carriage with the intervener for the last part of the journey. From the date of that agreement, the intervener ceased to give the plaintiff possession of the goods, thereby ending the plaintiff’s control over them and preventing it from continuing to transport the goods in accordance with the contract and delivering them to the consignee.
In order for the plaintiff to be entitled to the full agreed freight under Section 420(3)(1) of the HGB, the obstacle to transport or delivery would have to be attributable to the consignor’s area of risk, which was not the case here.
In that regard, it cannot be concluded from a purely formal point of view that the defendant, by directly entrusting the intervener with that task, was the ultimate cause of the plaintiff’s inability to transport the goods in accordance with the contract. Admittedly, that too constituted conduct contrary to the contract: the defendant could well have first terminated the contract with the plaintiff and then awarded the contract to the intervener instead of commissioning the latter, as it were, behind the plaintiff’s back. Rather, it depends on whether the obstacle originates in the sphere of the carrier, whereby according to this idea of a sphere it must also be taken into account whether the carrier has given cause for the obstacle to performance, such as in the present case.
The plaintiff, as a carrier, unjustifiably demanded from the defendant an increase in freight, the bringing forward of a payment deadline and a reduction in the agreed discounts and, for the purposes of enforcing that demand, relied on a lien which it was not entitled to exercise in the manner that it had announced. The actual cause of the impossibility was set by the plaintiff.
Accordingly, the plaintiff could claim the pro rata freight only for the part of the journey that it had completed.
Comment
This 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 them under a freight contract concluded directly with the consignor.
Further, if the carriage is prematurely terminated due to an obstacle to carriage or delivery, the carrier retains the right to the full freight if the obstacle is attributable to the consignor’s sphere of risk.
For further information on this topic please Wassilis Thomas or Marco G Remiorz at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email ([email protected] or [email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) Hamm Higher Regional Court, judgment of 14 February 2019 – 18 U 160-15.
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