It is comprehensible that during these transports damages to the cargo can occur. In such case, what are the first steps to be taken in order to protect your interests?

The German transport law determines a period of prescription of one year to file a claim. In order to suspend the period of prescription an effective notice of liability has to be issued.

The effectiveness of such notice of liability is legally bound to the following requirements regarding form and content.

Following § 439 paragraph 3 HGB a claim has to be filed in writing. The period of prescription is then suspended until the receiver of the notice of liability rejects same in writing.

Another aspect a claimant has to take in to consideration is to specify the damage and to explain the relation to the respective part of the voyage generally by providing the related transport documents.

As already mentioned before, a notice of liability has to be filed in writing. That means the notice has to be signed by the claimant or at least by notarially certified hand signal.

Nowadays it is common practice to transmit a notice of liability by e-mail. But following § 439 paragraph 3 HGB in connection with § 126 BGB, this might not be sufficient and could lead to ineffectiveness of such notice of liability.

The regional court Hamburg as well as the regional appeal court Munich adjudicated upon this question that it is not sufficient to transmit a notice of liability by Email.

On the contrary, the regional court in Bremen decided quit different and affirmed the effectiveness of notice of liability transmitted by Email.

As you can see there is no predictability of legal decisions and the only way to be on the safe side is to get a confirmation that the receiver of such notice resigns from the requirements stated in § 126 BGB.

It is important to distinguish between the notice of liability and the notification of claim.

Following § 439 paragraph 2 sentence 2 HGB, the latter has also to be filed in writing but contrary to the notice of liability it is sufficient to transmit same per Email as no signature from the claimant is required.

The Federal Supreme Court concluded hereupon in its revision verdict (Az.: I ZR 75/11) that due to the fact that only the notice of claim has not to be signed by the claimant, a notice of liability has to follow the requirements stated in § 439 paragraph 3 sentence 1 HGB in connection with § 126 BGB and therefore has to signed by the claimant.

If you are the receiver of a notice of liability immediate need for action is required.

The first step is to check whether the claim filed is substantiated. In case the claim is considered to be not substantiated, same should be rejected in writing immediately in order to resurrect the period of prescription.

Irrespective of any legal evaluation it is highly recommended to inform your respective transport insurance about the notice of liability against you as this is an obligation stated in most insurance policies.