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07 October 2020
In a recently published decision,(1) the Würzburg Regional Court held that if a carrier does not submit a single offer to the consignor for carriage by different means of transport for the entire route as requested, but rather makes separate offers for the inland and ocean-going routes, and these offers are accepted by the consignor, it is not a true multimodal contract, but rather an inland waterway contract and a separate ocean-going contract.
If free in/out stowed, lashed, secured and dunnaged (FIOSLSD) terms are agreed in the contract of carriage by sea, this makes it clear that the carrier is responsible for loading and stowing the goods in the ocean-going vessel, including lashing, securing and dunning (ie, including cargo securing).
The plaintiff had ordered the defendant to ship a consignment of seven large structural components weighing 156.30 tonnes from Novi Sad, Serbia, to Bremen, Germany. The defendant offered a contract for two separate routes (which were later separately invoiced):
The plaintiff accepted the offer, whereas FIOSLSD was agreed for the carriage of the goods by sea on the cargo vessel the Wilson Dale.
The goods were damaged during the sea transport due to improper (unsafe) stowage (lashing) on the Wilson Dale.
The Würzburg Regional Court found that no single multimodal contract of carriage had been concluded, but rather two independent transport contracts. Moreover, the court found that the defendant bore no responsibility for securing the cargo on the ship.
The question of whether a genuine multimodal contract has been concluded must be determined by interpreting the contractual declarations. A multimodal contract is given if a party promises to carry the goods in such a way that they take custody of the goods at the place of departure and hand them over at the place of delivery. If, on the other hand, each stage of transport is regulated by a separate, independent contract of carriage, it is a so-called 'broken' or 'segmented' transport.
Although the plaintiff aimed for a uniform carriage, she had agreed to the defendant's offer, in which the two legs were regulated independently of each other when the contract was concluded. In addition, the lashing, securing and dunning reservation, which is usually included in a multimodal contract of carriage, was expressly excluded from the contract, further indicating that no multimodal contract of carriage had been concluded.
Due of the exclusion of the free in/out stowed clause, which stated that the carrier was not responsible for loading and stowing the goods (lashed, secured and dunnaged), the defendant did not need to secure the cargo on board the sea-going vessel for the plaintiff.
The Würzburg Regional Court, as well as all other German courts, must rule according to the German codes. In order to do so, this usually requires the interpretation of the facts presented by the parties. The question is then how an outside third (neutral) party would assess the situation. In the case at hand, remuneration for the partial routes regulated separately in advance gave the impression of two independent contracts.
A multimodal contract of carriage could probably have been assumed only if, despite individual legs, there was at least either:
For further information on this topic please contact Lars Kortländer or Marco G Remiorz at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) or email (email@example.com or firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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