The case law:
The Düsseldorf Regional Court ordered the defendant to pay EUR 335.39 and otherwise dismissed the claim. It stated that the defendant's liability was limited to 19 special drawing rights (SDR) per kilogram of the shipment in accordance with Articles 18 (1) and 22 (3) of the Montreal Convention (19 SDR x 14 kg x EUR 1.260864).

The plaintiff's appeal to the Düsseldorf Higher Regional Court was unsuccessful (judgment of 23.05.2018, I-18 U 37/17). The Regional Court had rightly assumed that the defendant was only liable for the loss of the shipment to a limited extent in accordance with the provisions of the MÜ, but that any further liability of the defendant was excluded - according to the reasoning of the Court of Appeal. Unlimited liability of the defendant in accordance with the provisions of the German Commercial Code (HGB) was out of the question, as the provisions of the Montreal Convention take precedence (Article 38 (1) in conjunction with Article 18 (4) of the Convention). Accordingly, the carrier's liability for loss of goods in transit is governed by the provisions of the Convention if the damage occurred while the carrier was in charge of the goods.

In the present case, the shipment was transported by air to Mexico. The goods were then taken by the defendant to the customs warehouse of the Mexican authorities on the airport premises for customs clearance. The transfer to the customs warehouse did not end the period of custody of the defendant as the air carrier; the customs authorities were in principle obliged to protect and hand over the goods to the carrier - according to the Düsseldorf Higher Regional Court. Even if the FMC does not provide any direct information on customs clearance, it can be inferred from Article 16 of the FMC that customs clearance is the responsibility of the air carrier. In this context, customs clearance is a contractual performance phase close to transportation within the air transport owed as part of the agreed multimodal transport. Since, within the scope of application of the FMC, customs clearance regularly lies between the actual carriage by air and the further carriage with the aim of loading, delivery and transhipment by other means of transport, it must be concluded that the FMC assumes that customs clearance is not intended to terminate the air carrier's duty of care. The air freight contract is only fulfilled when the carrier has delivered the goods to the person entitled to receive them.

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.