The case: The electronics manufacturer E. - Krefeld branch - commissioned the freight forwarder S. with the air transportation of a shipment to the recipient in Wuhan, China. The shipment was to be flown from Düsseldorf airport. It weighed 57 kilograms and had a value of 11,703.20 euros. The branch of E. in Bocholt also commissioned the freight forwarder S. with the air transportation of a consignment to a recipient in Karachi, Pakistan. This shipment was to be flown from Frankfurt Airport. It had a weight of 188 kilograms and a value of 2,274.00 euros. The freight forwarder S. used the logistics company C. as a subcontractor. C. picked up both shipments from Krefeld and Bocholt and took them to his warehouse in Ratingen. There, the shipment destined for Wuhan/China was labeled with the label for the shipment to Karachi/Pakistan and then transported by truck to Frankfurt Airport. The consignment destined for Pakistan was labeled by C. with the label for the China consignment and transported to Düsseldorf airport. The consignment destined for Pakistan was completely lost. The consignment destined for China landed in Karachi/Pakistan, where it was inadvertently imported, cleared through customs and has not yet been recovered. The electronics manufacturer E. claims against the freight forwarder S. for the loss of both shipments. For his part, S. holds the logistics provider C. liable for the incorrect marking and misrouting of the shipments. He is of the opinion that C. should have ensured that a mix-up of E.'s consignments in C.'s warehouse was avoided when labeling and transporting the consignments to the departure airports of Düsseldorf and Frankfurt. C. rejects any responsibility. S. brings an action for declaratory judgment to have C.'s liability for damages determined by a court.

The case law: The Düsseldorf Regional Court ruled in accordance with the application and found that C. was liable in principle for the damage incurred in connection with the shipments to China and Pakistan in accordance with Section 425 HGB (judgment of 03.08.2018, Ref. 33 O 11/18). In support of its decision, the court stated that C. was also liable in principle for the consequences of the mix-up of the two shipments. It was undisputed that the C. had transported the shipment destined for China to Frankfurt Airport instead of Düsseldorf Airport and the shipment destined for Pakistan to Düsseldorf Airport instead of Frankfurt Airport. With this misconduct, the C. was at least partly responsible for the resulting consequences and damage. The Düsseldorf Regional Court also had no reservations regarding the admissibility of the declaratory action. After all, it was not certain to what extent the shipper E. was entitled to compensation claims against the forwarder S. and whether E. would still be able to retrieve the misdirected shipment to Karachi.

Practical tip: Shippers can only be recommended to clearly mark and label packages if several consignments are dispatched at the same time in order to minimize the risk of confusion. Freight forwarders and carriers are required to fulfill their obligation to carry out checks at every interface, in particular to verify the identity of the consignments.

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.