The Regional Court partially upheld the claim, ordered the defendant S to pay EUR 218,235.30 and dismissed the counterclaim. The Court of Appeal confirmed the decision of the Regional Court and held that K was not entitled to any counterclaims due to the inventory losses. The agreed shrinkage clause precluded S's liability under Section 475 HGB. This was to be understood as meaning that S was allowed a shrinkage of goods in the range between 99.6% and 100% without S having to exonerate itself in this respect. The annual inventory differences would indisputably have been below 0.4% of the annual purchase value of the goods.

The Federal Court of Justice: However, the defendant K's appeal to the Federal Court of Justice was successful (BGH, judgment of 20.09.2018, I ZR 146/17). The BGH stated that, in principle, S was liable as the warehouse keeper pursuant to Section 475 HGB. This liability had been modified by the ADSp (2003) agreed by the parties and by the shrinkage clause. According to section 24.1 ADSp (2003), the liability of the freight forwarder for loss of or damage to the stored goods is limited to EUR 25,000. However, according to clause 27.1 ADSp (2003), this limitation of liability does not apply if the damage was caused by intent or gross negligence on the part of the warehouse keeper or his executives or by a breach of material contractual obligations. The assessment of the Court of Appeal does not stand up to legal scrutiny insofar as this clause should also apply if the loss of goods was caused by an intentional breach of duty by the freight forwarder S.

The Court of Appeal had not taken into account the fact that the warehouse keeper cannot be exempted from liability for intent in advance. According to the BGH, the parties could not exclude S's liability for its own intentional breach of duty in advance. This follows from Section 276 (3) BGB. The contractually agreed shrinkage clause was to be interpreted restrictively to the effect that the parties did not want to exclude liability of the freight forwarder S for intentional conduct. The judgment on appeal is based on the legally erroneous assumption that S is not liable for an intentional breach of duty. The K had argued in both instances that the loss of goods was due to the fact that the management of S had deliberately failed to properly organize its warehouse operations. The judgment on appeal was therefore to be set aside and the case was to be referred back to the
to the Court of Appeal for a new hearing and decision.

About the author: Bernhard Kahl has been a lawyer at the law firm Schnebbe Heuser & Partner in Hamburg since 2012. He previously worked for an international freight forwarder as an in-house lawyer for several years. His practice focuses on freight forwarding and transportation law, in particular international air freight law.