Appellate Court (Oberlandesgericht) Saarbrücken

Transcription

1 Appellate Court (Oberlandesgericht) Saarbrücken 17 January 2007 [5 U 426/96-54] Translation [*] by Jan Henning Berg [**] FACTS The initial Plaintiff [Shipper] is a transport company. The initial Defendant (which is now Cross-Plaintiff) [Buyer] provides services relating to natural stone. Originally, [Shipper] brought an action against [Buyer] for payment of transport costs. Both parties have eventually reached a settlement in relation to the sum claimed by [Shipper]. They have also agreed that there should be no further mutual claims in this respect. The present dispute is solely concerned with a counterclaim brought by [Buyer] who seeks compensation from the Third-Party Cross-Defendant [Seller] in respect of a transport damage. An accident occurred during the transport of about 300 sqm of natural stone marble panels which [Shipper] carried out for [Buyer] on 24 February [Shipper] had commissioned the intervening party to the present proceedings to carry out the transport service. [Buyer] had bought the panels from [Seller] on the basis of a contract for the supply of goods to be manufactured or produced. There had been no particular agreements concerning the packaging of the goods. By letter dated 26 February 1999, [Buyer] requested [Shipper] to determine the exact damage. The underwriter of the party which had been served with a third party notice commissioned Expert G. of Company C.G. GmbH to provide an expert opinion on the extent of the transport damage. On 2 March 1999 they examined the damaged goods and claims were filed against [Shipper] by letter of 10 March 1999, seeking financial redress. These claims were calculated in further detail by letter of 24 March The intervening party's underwriter denied liability for any damages by its letter dated 3 May Liability was also denied by [Shipper]. By letter of 8 May 1999, [Buyer] brought claims against [Seller] because of the damage incurred and informed the latter party about the existence and contents of the expert opinion. POSITION OF THE PARTIES Position of [Buyer] [Buyer] argues that the District Court (Landgericht) Saarbrücken has jurisdiction to adjudicate the dispute in accordance with Art. 6 No. 1, No. 3 and Art. 17 No. 1 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September The goods which had been intended for [Buyer] were damaged because of an emergency braking by the truck driver. The way in which the goods had been loaded onto the vehicle and the particular manner of packaging were inappropriate and the goods were thus not in conformity with the contract under Art. 35 CISG. [Seller] was liable pursuant to Arts. 45, 74 CISG. [Buyer] calculated its losses at EUR 47, [Seller] was jointly liable with [Shipper], because it had taken part in causing the damage. [Buyer] had complied with the relevant time limit to notify the non-conformity.

2 [Buyer] has requested the Court to order [Seller] to pay EUR 15, plus 5% interest since 24 March It also requests that [Seller] be ordered to pay EUR 32, plus 5% interest since pendency of proceedings. Position of [Seller] The Third-Party Cross-Defendant [Seller] has requested the Court to dismiss [Buyer]'s action. In its judgment of 16 June 2006, the District Court (Landgericht) Saarbrücken ordered [Seller] to pay [Buyer] the amount of EUR 23, and dismissed the remaining part of the action. It affirmed its jurisdiction to adjudicate the [Buyer]'s counterclaim and allowed a claim for damages because of poor packaging of the marble panels pursuant to Art. 35 CISG. However, the District Court (Landgericht) made deductions relating to the amount of compensation. This judgment was served on [Seller] on 22 June The latter has filed an appeal against this judgment before the Appellate Court of the Saarland (Saarländisches Oberlandesgericht) by way of its memorandum submitted via fax on 21 July In its appeal, [Seller] challenges the jurisdiction of the District Court (Landgericht). [Seller] also alleges that the District Court incorrectly allowed an excuse for a delayed notice of the non-conformity. Finally, the Cross-Defendant [Seller] asserts that it was not responsible to ensure proper protection of the goods in transport. REASONING OF THE COURT [Seller]'s appeal is admissible but unfounded. The District Court (Landgericht) was correct to affirm its jurisdiction over the dispute and to allow [Buyer]'s claim for damages against [Seller]. 1. [Jurisdiction and choice of forum] The District Court (Landgericht) Saarbrücken had territorial jurisdiction to consider the [Buyer]'s counterclaim. a) According to jurisprudence developed by the German Federal Supreme Court (Bundesgerichtshof), an appeal may be based on a violation by a court of rules governing international jurisdiction to adjudicate disputes (BGH [*] NJW [*] 2004, 1456). The Appellate Court is competent to determine the international jurisdiction of a court, notwithstanding the German law on the modernization of civil procedure (Gesetz zur Reform des Zivilprozesses) of 27 July 2001 (BGBl [*] p. 1887). 513(2) ZPO [*], which provides that an appeal may be brought on the contention that a first instance court had incorrectly assumed its own jurisdiction, does not -- like 545(2) ZPO -- refer to matters regarding international jurisdiction (Zöller/Gummer/Heßler, ZPO, 25th ed., 513 para. 8; Baumbach/Lauterbach/Albers/Hartmann/Albers, ZPO, 63rd ed., 513 para. 5). It is argued that the reason for this is that the issue of international jurisdiction was more relevant than questions on territorial, subject-matter or functional jurisdiction. International jurisdiction is concerned with delineating the sovereignty between countries and is a decisive criterion to determine the applicable rules of private international law and procedural law. As a consequence, international jurisdiction often indirectly determines the applicable substantive body of law, as well. In contrast with a mere delineation of jurisdiction among German courts,

3 a decision on the international jurisdiction of a court may thus be liable to pre-determine the outcome of a case even on the merits (BGH [*], see above, with further references). b) The international jurisdiction of German courts -- here: the District Court (Landgericht) Saarbrücken -- follows from Art. 17 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 Septermber For the present dispute which is litigated by a German buyer against an Italian seller, international jurisdiction is to be determined according to the provisions set out in the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 Septermber 1968 (BGBl [*] 1972 II, 773; 1973 II, 60). The Brussels Convention has entered into force on 1 February 1973 after having been signed by its Contracting Parties - including the Federal Republic of Germany and Italy (Kropholler, Europäisches Zivilprozeßrecht, 5th ed., 1996, Einl. paras. 1 and 5). If -- as in this case -- the defendant is domiciled in a state other than the state where the court is located, Art. 3(1) Brussels Convention provides that the latter state may take international jurisdiction only by virtue of the rules set out in Sections 2 to 6 of the Convention. Should the particular requirements of any such provision not be fulfilled, the general rule of Art. 2 Brussels Convention applies, according to which a party may only be sued in the courts of the state where it is domiciled. aa) The District Court (Landgericht) has correctly assumed the existence of a choice of forum agreement by the parties pursuant to Art. 17 Brussels Convention. (1) The District Court has refrained from exactly specifying on the basis of which order it has developed its reasoning. Instead, it has made reference to a "contract" in general terms. In its memorandum of 29 January 2001, [Seller] itself submitted that the contract for delivery dated 16 July 1998 was the relevant contract. It specifies Saarbrücken, Germany as the chosen forum to resolve any disputes. On the basis of this order, which has been signed by both parties and contains an express determination of the forum, Saarbrücken, a corresponding legally binding choice of forum can be assumed. Thus, [Seller] bears the burden to prove that, despite the content of the contractual document, no such agreement had been concluded. In this respect, [Seller] has failed both to make sufficient submissions and to bring proof. The mere formal concerns raised by [Seller] in this respect do not suffice to rebut the existence of a legally valid choice of forum. With regard to the formal requirements for validity of a choice of forum agreement (agreement in writtten form), Art. 17 Brussels Convention contains a conclusive provision which does not allow for recourse to domestic law and which has to be interpreted autonomously and in a uniform manner. Therefore, the validity of the agreement in question may not be challenged by [Buyer] on the mere basis that the choice of forum clause constituted a so-called "dangerous clause" (in Italian: "clausole onerose o vessatorie") and had not been expressly confirmed through a separate signature as required under Art. 1341(2) Cc [*]. In the same manner, Art. 2 of the Italian law on civil procedure (Codice di Procedura Civile) would have generally prohibited any exclusion of jurisdiction of Italian courts by way of agreements with aliens but this rule has been overridden by Art. 17 Brussels Convention, which constitutes a mandatory provision in international law given the fact that Italy has ratified the Brussels Convention (cf. for these issues OLG [*] Düsseldorf, judgment of 6 January 1989, case docket 16 U 77/88, NJW-RR [*] 1989, 1330 et seq. with further references; for the primacy of the Brussels Convention over international law cf.

4 Kropholler, Einl. para. 13, Art. 2 para. 15 and Art. 17 paras. 18 and 19; Geimer/Schütze, Europäisches Zivilverfahrensrecht, 1997, Art. 17 paras. 71, 72). The challenge by [Seller] of a failure to adhere to the required written form is therefore unfounded. (2) However, even if the Court did not base its decision on the order of 16 July 1998 on the grounds that it did not make reference to the relevant delivery to the Frankfurt airport but to the delivery of material to a construction site in Munich, the choice of forum agreement would still remain valid. Pursuant to Art. 17(1)(2)(a) Brussels Convention, a choice of forum agreement is valid even if a written declaration of intent has been submitted by only one of the parties. This rule seeks to facilitate international trade. The so-called "semi-written form" requires clear evidence that the parties had agreed on the provision relating to the choice of a forum. Such agreement need not be made in express terms but can also be made impliedly. However, in any case, the intention of the parties must be expressed without possible doubts so as to ensure that a choice of forum will not be subconsciously included in a contract, since it may have significant consequences on the parties (Kropholler, Europäisches Zivilprozeßrecht, Art. 17 para. 23; see also 8th ed. 2005, Art. 23 para. 33). It follows from the contractual documents and from the circumstances surrounding the conclusion of the contract with the sufficient degree of certainty required by the Court that the parties had effectively agreed to make Saarbrücken the forum to resolve disputes arising out of their contract for delivery of materials in relation to the construction project at Frankfurt airport. This contract was preceded by [Buyer]'s inquiry of 20 April In this inquiry, [Buyer] requested [Seller] to submit a binding offer for specified operations regarding natural stone. According to item 8 of the inquiry, any contract should inter alia be based on Saarbrücken becoming the forum for possible legal proceedings. It is clear from [Buyer]'s letter that it would be willing to conclude a contract only if the other party accepted the former's "basic conditions" which were stated before the specific description of obligations. [Seller] submitted its offer of 24 April 1998 with express reference to [Buyer]'s earlier specific inquiry. The former did not refer to the "basic conditions" contained in the inquiry. Subsequent to oral negotiations between the parties on 13 October the content of which follows only indirectly from a transcript signed by both parties in relation to the goods to be delivered and to payment terms -- [Buyer] placed a definitive order with [Seller] on 14 October On this occasion, the provision to choose Saarbrücken as the legal forum was repeated. Therefore, the choice of forum provision was sufficiently perceivable for [Seller]. In particular, the [Seller] did not object to it. However, these facts in themselves are not sufficient to prove that the parties had agreed on the choice of forum clause in the same manner as they had agreed on the other provisions specified in the order relating to the obligations to be performed by either party. Still, with consideration to further contracts which had been concluded between the parties in the same temporal context and which concerned deliveries of goods, the non-objection can only lead to

5 the conclusion that the parties had properly agreed on Saarbrücken as their legal forum also for the contract in question. For the assessment of whether or not the parties have impliedly agreed on Saarbrücken to be their legal forum, it may not remain unconsidered that at the relevant time both parties had already concluded another contract on 16 July 1998 for delivery of natural stones for a construction project in Munich, and thus before conclusion of the contract in question. This contract -- which [Seller] itself originally presented as the relevant contract -- also provided for Saarbrücken to be the legal forum and was signed by both parties. The correspondence until submission of the order on 16 July 1998, which has been submitted to the Court by [Buyer] after the closing of the oral hearing in its memorandum of 20 December 2000, demonstrates that [Seller] has generally accepted Saarbrücken as legal forum for any contracts concluded with [Buyer]. [Buyer]'s inquiry on the purchase price of 2 June 1998 expressly mentions the legal forum Saarbrücken. The subsequent offer issued by [Seller] dated 10 June 1998 makes reference to the inquiry and merely contains additional information on pricing. On 16 June 1998, [Buyer] sent [Seller] a deviating offer in which Saarbrücken is once again mentioned as the legal forum. This offer has subsequently been amended by [Seller] only in relation to prices and payment terms while the provision to choose Saarbrücken as the legal forum has not been deleted in any of its letters. The final order of 16 July as is the case with all submitted orders -- provides for Saarbrücken to become the legal forum and has been concluded by both parties. The conduct on the part of [Seller] which follows from the correspondence with [Buyer] thus clearly expresses that it has generally accepted Saarbrücken to become their legal forum to resolve disputes arising out of the contractual relations between them. In accordance with good faith, [Seller] is bound to adhere to this conduct. The result to bind [Seller] to the choice of forum provision is further appropriate because in the present proceedings [Seller] has only challenged the formal validity of the clause. 2. [Buyer's claim for damages] The District Court (Landgericht) correctly approved [Buyer]'s claim for damages against [Seller] pursuant to Art. 35 CISG. [Seller]'s argument on appeal that the District Court had improperly determined an exemption from liability under Art. 35(3) CISG and the legal requirements for a delayed notification under Art. 44 CISG is unfounded. Art. 35(1) CISG provides that the seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. However, if the parties to an international contract for the supply of goods to be manufactured or produced to which the CISG applies fail to determine in their contract any requirements concerning the packaging, the objective minimum standard will apply as provided by Art. 35(2) CISG. In order to determine whether or not the obligation to deliver has been breached, it must be examined whether the goods are contained or packaged in the manner usual and adequate for such goods. In general, the standards in the seller's country determine the adequacy for usual purposes (OGH [*], judgment of 13 April 2000, case docket 2 Ob 100/00w, IPrax [*] 2001, = IHR [*] 2001, 117). The parties have not reached an agreement on the manner according to which the goods were to be packaged. The mere assertion that previous deliveries by [Seller] had been packaged in

6 the same manner is not sufficient to assume an implied agreement of such packaging that does not properly protect the goods during transport. Since these deliveries had reached [Shipper] without any damage, the latter had no reason to deal with the issue of packaging. Moreover, not all of these cases concerned deliveries of marble panels of the particular type. A packaging is adequate if it is sufficient to protect the goods from damage on its foreseeable route to their destination (Staudinger/Magnus, CISG, Art. 35 para. 42). The usual and adequate manner of packaging marble panels is to store and fasten them onto pallets. The goods must be packaged in a way that they are protected from damage during transport. According to the expert opinion prepared by E, [Seller]'s packaging (use of pallets) had not been adequate. In any event, it would have required additional protective measures using supporting poles. Expert E explains in his written opinion that the damage caused to the panels was caused by inappropriate packaging and a failure to secure the goods in transport. [ ] According to the factual determination by the expert, the Court is convinced that the construction of the pallets and thus the packaging itself has been a significant cause of the damage. The packaging falls within the scope of [Seller]'s responsibilities and is not a duty of the carrier as [Seller] has argued. Art. 8 CMR [*] requires the carrier merely to examine the packaging for its condition which is visible from the outside. The carrier has no duty to examine the packaged goods for their suitability to be transported. It merely has to check whether the actual condition of the particular manner of packaging deviates from the normal condition (e.g., holes, bumps, cracks). Generally, it cannot be expected from a carrier to have specific knowledge on any goods in particular or to have any instruments to make detailed examinations. However, it can be expected from a carrier to have general knowledge about modes of packaging of those goods which it usually carries (Koller, Transportrecht, 5th ed., CMR, Art. 8 para. 3). The necessary care under Art. 17(2) CMR however requires the carrier to check the packaging from the outside in respect of its suitability for transport. Naturally, this check concerning the security of transport needs only to be carried out with the skill available to a layman, which means that the carrier may be accused of a failure to check only if the improper manner of packaging is obvious (Koller, Art. 17 para. 37). It is not established in this case that the carrier has detected the improper packaging. Insofar as the expert has stated that it was obvious that the pallets had not been properly loaded, this is without bearing to the present case. It could only lead to a concurrent liability of the carrier but would not exclude [Seller]'s liability, which exists in any event. The same applies to the protection of the loaded goods. A carrier has no duty to examine the adequacy of any shipment apart from what is required to ensure that transport is safe (BGH [*], judgment of 24 September 1987, case docket I ZR 197/85, VersR [*] 1988, 244 et seq.; Koller, Art. 17 para. 37). The carrier merely has a general duty to take measures to ensure that goods are loaded properly and in a way that they will not incur damage in such instances where the carrier recognizes that the goods are not adequately packaged or where it is plainly obvious in the circumstances that there is a real danger of a damaging event. None of this is apparent in the present case. 3. [No exemption from liability]

7 [Seller]'s is also not exempt from liability under Art. 35(3) CISG. [Seller] bears the burden to demonstrate and prove that the requirements for an exemption from liability are fulfilled if it seeks to rely on the provision (Soergel, 13rd ed., CISG, Art. 35 para. 24). [Seller] has not done so. The mere and flat submission that the goods had always been packaged in such manner and that [Shipper] had been aware of it is insufficient. [Seller] would have had to make specific submissions in respect of the other instances of similar but uncontested packaging. In particular, it is does not follow from the file that these previous deliveries were of identical goods. 4. [Excuse for Buyer's failure to notify lack of conformity] [Seller] has not notified [Shipper] about the specific non-conformity within a reasonable time as required under Art. 39 CISG. However, an excuse is applicable for not having given the notice within due time (Art. 44 CISG). a) The notification of a lack of conformity must be put in a way that the other party recognizes an intention to complain about the condition of the goods and must specify the nature of the lack of conformity so as to enable the seller to understand what the buyer is complaining about (cf. Münchener Kommentar/Gruber, BGB, 4th ed., CISG, Art. 39 para. 7). These requirements were not fulfilled given the telephone call of 25 February 1999 during which [Shipper] merely ordered new goods. The same result would apply even if the reason for the new order had been communicated. It was not possible for [Seller] to understand the telephone call as a notification about a lack of conformity when in the context of a fresh order it was informed merely of an occurrence of damage. The notification in the letter dated 8 May 1999 was not made within the required Art. 39 time limit. In applying Art. 39 CISG, regard must be had to the seller's interest not to be subjected to non-conformity claims some time after delivery. On the other hand, well-founded claims on the part of the buyer should not be excluded by erecting overly formalistic legal barriers. These interests must be given consideration in determining the meaning of "reasonable". The damage occurred on 24 February The damage was reported to [Shipper] on 26 February The [Buyer] reported the damage to [Seller] on 25 February 1999, which was when it ordered new marble panels and which does not constitute a relevant notification about the lack of conformity. Claims were raised against [Seller] only by 8 May 1999 after the carrier's insurance denied liability and communicated to [Buyer] the opinion prepared by Expert G. on 3 May Since more than two months had passed until then, even under a generous interpretation of the reasonable time limit, the notice would have been given too late. This is even more appropriate because on 25 February 1999 [Buyer]'s representative (Witness M.) was at the site and could have discovered that the goods had not been delivered using adequate pallets. b) However, the District Court (Landgericht) correctly ruled that, in accordance with Art. 44 CISG, there was an excuse for not having complied with the duty to notify. Pursuant to Art. 44 CISG, a buyer may claim damages if he has a reasonable excuse for his failure to give the required notice about a lack of conformity. An excuse applies to conduct on the part of the buyer which deserves some fair understanding and forbearance under the circumstances of the individual case.

8 In particular, this is the case if the failure to make the required notification is insignificant enough so as to be acceptable in usual and fair business dealings -- especially with due consideration of personal circumstances affecting the buyer, and should therefore not be subjected to the severe consequence of a full exclusion of liability (Staudinger/Magnus, Art. 44 para. 10). On the other hand, Art. 44 CISG is an exceptional provision and should be interpreted narrowly (BGH [*], judgment of 11 January 2006, case docket VIII ZR 268/04, VersR [*] 2006, 1554 et seq. = IHR [*] 2006, 82). [Seller] does not recognize in its appeal that the term "reasonable excuse" does not relate to fault as a technical legal term. Under Art. 44 CISG, a global balancing is to be made according to criteria of fairness. Within the balancing exercise, it must be considered in particular the severity of the failure to comply with the duty, the consequences of a full exclusion of liability, the detriment inflicted on the seller due to the failure to notify, and the buyer's efforts in complying with the requirements relating to the notification (Münchener Kommentar/Gruber, 4th ed., CISG, Art. 44 para. 5; Schlechtriem/Schwenzer/Huber/Schwenzer, CISG, 4th ed., Art. 44 paras. 4 and 5). The District Court (Landgericht) correctly held that a reasonable excuse applies in this case. Only after Legal Expert G. had submitted his opinion was it discovered that [Seller] had been partly responsible for the damage resulting from inadequate packaging. The expert opinion reached [Buyer] only by letter of 3 May 1999 which was sent by the carrier's insurance. On 8 May 1999, [Buyer] raised claims against [Seller]. Therefore, [Buyer] notified [Seller] of the non-conforming packaging immediately after the former had become aware of it. It was not acceptable for [Buyer] to raise any claims before that date without any useful evidence, running the risk to be subjected to legal proceedings. On the other hand, [Seller] knew that considerable damage had occurred to the shipped goods during transport as a result of the immediate order of substitute materials during February This holds true despite the fact that at the time [Seller] could not yet be held legally responsible for the damage. [Seller] has not suffered any inappropriate detriment from being subjected to legal claims only two months later, since the damage was properly determined and recorded immediately after the accident. In this case, fairness requires to assume a sufficiently reasonable excuse for the delay in giving notice about the lack of conformity. 5. [Seller]'s appellate challenge of the amount of damage as determined by the District Court (Landgericht) is not sufficiently reasoned. [Seller] completely fails to discuss the arguments raised in the judgment, which is not legally erroneous. [ancillary decisions] FOOTNOTES * All translations should be verified by cross-checking against the original text. For purposes of this translation, the initial Defendant and Cross-Plaintiff of Germany is referred to as [Buyer] and Third-Party Cross-Defendant of Italy is referred to as [Seller]. The initial Plaintiff is referred to as [Shipper]. Amounts in the uniform European currency (Euro) are indicated as [EUR].

9 Translator's note on other abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGBl = Bundesgesetzblatt [German federal law gazette]; BGH = Bundesgerichtshof [German Federal Supreme Court]; Cc = Codice civile [Italian Civil Code]; CMR = Convention on the Contract for the International Carriage of Goods by Road; IHR = Internationales Handeslrecht [German law journal]; IPrax = Praxis des Internationalen Privat- und Verfahrensrechts [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; NJW-RR = Neue Juristische Wochenschrift Rechtsprechungsreport [German law journal]; OGH = Oberster Gerichtshof [Austrian Supreme Court]; OLG = Oberlandesgericht [German Regional Appellate Court]; VersR = Versicherungsrecht [German law journal]; ZPO = Zivilprozessordnung [German Code of Civil Procedure]. ** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.