Und Adryatik

DMC/SandT/13/01

Germany

German Federal Supreme Court

"Und Adryatik"; Date of Judgement: 15 December 2011

CMR TRANSPORT: APPLICATION OF ART. 2 CMR: FIRE ON RO-RO-CARRIER: HAGUE RULES AS ‘CONDITIONS PRESCRIBED BY LAW’: FIRE AS AN EVENT WHICH COULD ONLY HAVE OCCURRED BY REASON OF CARRIAGE BY SEA

Summary

The Hague Rules constitute “conditions prescribed by law for the carriage of goods” for the purposes of Art. 2 of the CMR Convention. Fire on board a vessel may be an event which could only have occurred in the course of and by reason of the carriage by sea in accordance with this section. The carrier is therefore entitled to invoke the Hague Rules fire exception.

Note contributed by Daja H. Böhlhoff, LLM (Maritime Law), Solicitor of German law firm Blaum Dettmers Rabstein and International Contributor to DMC’s CaseNotes

Background

The plaintiff cargo underwriter claimed compensation from a freight forwarder in connection with a fire on board the ro-ro vessel “UND ADRYATIK”. The subject cargo was transported on two trucks to the Turkish port of Pendik from where the trucks carrying the cargo were put on board the vessel for a sea voyage to Trieste in Italy. During this voyage, a fire broke out on board the vessel and all cargo on board was destroyed. The cause of the fire could not be determined. The plaintiffs based their claims on Art. 17 CMR (see fn.2) The defendants argued that, according to Art. 2 CMR (see fn.1), their liability was to be governed by Turkish maritime law and the Hague Rules as the law which would have governed a contract directly between the shipper and the sea carrier. The particular loss could only have occurred in the course of and by reason of the carriage by sea so that they were entitled to invoke the fire exception of the Hague Rules.

Judgment

The Federal Supreme Court overruled the first and second instance judgments which had held that the defendants were liable towards the claimant according to Art. 17 CMR; the Hague Rules as the law governing a contract with the sea carrier did not apply because the Rules were not mandatory and thus not “conditions prescribed by law” for the purposes of Art. 2 CMR. The Supreme Court construed Art. 2 CMR with a view to the purpose of this Article which was aimed at avoiding a situation in which the road carrier was exposed to stricter liability than the sea carrier, because his recourse against the party causing the loss was limited. The mere fact that the French version of the relevant part of Art. 2 CMR (“conditions prescribed by law”) referred to “dispositions imperatives” did not mean that the conditions had to be mandatory in such a strict sense that contracting out was not permitted.

The Federal Supreme Court further applied the principles established in English case law (Thermo Engineers v. Ferrymasters [1981] 1 Lloyd’s Rep 200) and in Dutch law (Decision of the HogeRaad dated 29 June 1990) in which it had been held that the Hague Rules constituted “conditions prescribed by law”.

The Federal Supreme Court further held that the fire on board the vessel was an event which could only have occurred in the course of and by reason of the carriage by sea. If the vehicles had not been on board the ship, it would have been possible to drive them away in time before they were caught by the fire. In addition, the fire fighting equipment of a vessel was not as efficient as the support of fire fighters ashore.

A contract for the carriage by sea with the sea carrier was subject to Turkish law as both the principal place of business of the sea carrier and the place of loading were in Turkey. As Turkey was a contracting state of the Hague Rules, the Rules applied to the carriage in question. The freight forwarder was therefore entitled to invoke the Hague Rules fire exception and was accordingly not liable for the loss of the goods caused by the fire on board the vessel.

Comment

The judgment is the first Supreme Court judgment to clarify the meaning of “conditions prescribed by law” according to Art. 2 CMR and to define an event which could only have occurred in the course of and by reason of the carriage by sea in the context of ro-ro carriage. It is to be welcomed in view of the numerous court cases pending in connection with the major loss of the “UND ADRYATIK” and constitutes an important precedent for the construction of Art. 2 CMR.

Fn 1. Article 2 1. Where the vehicle containing the goods is carried over part of the journey by sea, rail, inland waterways or air, and … the goods are not unloaded from the vehicle, this convention shall nevertheless apply to the whole of the carriage. Provided that to the extent it is proved that any loss, damage or delay in delivery of the goods which occurs during the carriage by the other means of transport was not caused by act or omission of the carrier by road, but by some event which could only have occurred in the course of and by reason of the carriage by that other means of transport, the liability of the carrier by road shall be determined not by this convention but in the manner in which the liability of the carrier by the other means of transport would have been determined if a contract for the carriage of the goods alone had been made by the sender with the carrier by the other means of transport in accordance with the conditions prescribed by law for the carriage of goods by that means of transport. If, however, there are no such prescribed conditions, the liability of the carrier by road shall be determined by this convention.

Fn 2. Article 17 1. The carrier shall be liable for the total or partial loss of the goods and for damage thereto occurring between the time when he takes over the goods and the time of delivery, as well as for any delay in delivery.

2. The carrier shall, however, be relieved of liability if the loss, damage or delay was caused by the wrongful act or neglect of the claimant, by the instructions of the claimant given otherwise than as the result of a wrongful act or neglect on the pArt of the carrier, by inherent vice of the goods or through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.

3. The carrier shall not be relieved of liability by reason of the defective condition of the vehicle used by him in order to perform the carriage, or by reason of the wrongful act or neglect of the person from whom he may have hired the vehicle or of the agents or servants of the latter.