In its 1 June 2017 decision (I ZR 29/16), the Federal Court of Justice clarified a number of issues under the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI).
The claimant’s insured party had instructed the respondent to transport a newly manufactured hull of a tanker from Romania to the Netherlands by inland waterways. The hull was lashed to the starboard side of the carrying vessel and was damaged in a collision with another vessel. The weight of the hull had not been recorded in the transport document (waybill).
The claimant sought compensation for the value of the hull from the respondent in the amount of approximately €250,000.
The first-instance court dismissed the claim. The appeal court sentenced the carrier to pay only the equivalent of 666.67 standard drawing rights (SDR) and dismissed the rest of the claim.
The Federal Court of Justice confirmed the appeal court’s decision and clarified a number of issues under the CMNI.
The rules of the convention were held to apply to the case despite Article 1(7) of the convention. The appeal court found that the parties had agreed on the convention’s applicability in the context of Dutch law.
According to the Federal Court of Justice, even if the parties had agreed on an exemption of liability for error in navigation, under Article 25(2)(a) of the CMNI the carrier cannot escape liability based on such an error where the master or crew acted:
- with the intent to cause such damage; or
- recklessly and with the knowledge that such damage would probably result.
The ‘recklessness’ of the master and crew is attributed to the carrier in this respect and liability can then not be waived.
The Federal Court of Justice’s decision underscored that the convention’s limitation of liability is not broken by the recklessness of the master or crew, because Article 21 requires recklessness of the carrier itself in order for the limitation to be broken (ie, recklessness of the company director).
Most importantly, this decision clarifies the determination (calculation) of the limitation per weight of the goods under Article 20 of the convention (SDR 2 per kilogram). According to the Federal Court of Justice, only the weight specified in the transport document can be invoked; if no weight is mentioned in the transport document, the carrier must rely on the limitation per package (SDR 666,67).
The Federal Court of Justice referred to the clear wording of Article 20 (“the weight mentioned in the transport document”) and the fact that, when the CMNI was adopted, the problem that the information relevant for calculating the maximum amount of liability is not always stated in transport document must have been known.
The application of the CMNI rules in this case was not based on the applicability of the convention per se, but rather on the parties’ agreement to have the CMNI rules applied in the context of Dutch law. Had the parties chosen German law, this would not have been possible to the same extent.
The Federal Court of Justice’s findings regarding the distinction between the recklessness of the master and crew on the one hand and of the carrier on the other hand are convincing; however, the court’s findings on the weight in the transport document are not.
Under Article 20(1) of the CMNI, the limitation to 2 SDR per kilogram indeed refers to the weight specified in the transport document. However, it does not expressly say whether the specification in the transport document is a strict requirement for the applicability of such an alternative limitation or rather a rebuttable presumption of the weight.
Where the weight is not stated in the transport document but can nevertheless be proven by the shipper, it is a very formal approach to adhere only to the document – all the more so because, contrary to waybills under domestic German law, which are issued by the sender, waybills under the CMNI are issued and signed by the carrier (Articles 11(1) and 11(2)).