The shipment was flown to Geneva on behalf of S by an air freight carrier. Upon arrival in Geneva, it was discovered that the properly sealed crate was empty. All 14 wristwatches had disappeared. The current value of the 14 watches amounted to 460,000 euros. The plaintiff claimed this amount as damages against S and filed suit. In the court proceedings, S denied that the 14 watches had been lost while in his care. After all, the box had been delivered to Geneva in perfect external condition. In addition, any liability under the Montreal Convention (MC) was limited to around 23.75 euros per kilogram of the weight of the shipment. Unlimited liability could not be considered as the plaintiff had not made a declaration of value.

Case law: The Regional Court of Hamburg ordered the carrier S to pay only EUR 152.00; the claim was otherwise dismissed (LG Hamburg, judgment of 5 June 2019, Ref. 401 HKO 32/17 - the judgment is final). Contrary to the view of the defendant S, the court considered it proven on the basis of the results of the public prosecutor's investigation that the theft of the 14 watches occurred in the care of S or his vicarious agents. The X-ray images taken during the aviation security investigation at Frankfurt Airport showed that the box was already empty before it was loaded onto the aircraft. In addition, the airline had determined that the crate weighed only 4.4 kilograms. On the other hand, the Regional Court shared the legal assessment of S that its liability as a contractual air carrier was governed by the liability regime of the Montreal Convention and that the liability pursuant to Articles 18, 22 (3) of the Convention was irrevocably limited to a liability amount of 152.00 euros (19 special drawing rights x 6.4 kilograms x 1.25 euros (exchange rate of 15 August 2016) = 152.00 euros).

Unlimited liability was out of the question. A declaration of value by the plaintiff could not be established beyond doubt. When placing the order, the plaintiff had indeed pointed out that it was a valuable consignment and that the goods to be transported were valuable. However, it had failed to state the actual value of the shipment and to inform S that the maximum liability should be increased to a certain amount. Accordingly, "NVD" ("no value declared") was also entered in the "Declared Value for Carriage" field in the air waybill. The sending of the pro forma invoice together with the transport order was also not to be regarded as a declaration of value. Only 14 individual amounts in euros were stated in the pro forma invoice, but no total value that could have been understood as a declaration of value according to the recipient's horizon.

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.