Afif 2004 annual conference 19 21may 2004
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AFIF 2004 Annual Conference 19 - 21May 2004. The Outcome!... Siemens v Schenker Peter McQueen, Partner, Blake Dawson Waldron Lawyers. Overview. Facts Court Findings Future Steps. Facts. Agreement among Siemens and Schenker companies

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Afif 2004 annual conference 19 21may 2004

AFIF 2004 Annual Conference 19 - 21May 2004

The Outcome!... Siemens v Schenker

Peter McQueen, Partner, Blake Dawson Waldron Lawyers


Overview
Overview

  • Facts

  • Court Findings

  • Future Steps


Facts
Facts

  • Agreement among Siemens and Schenker companies

    • Siemens Group companies - Siemens Germany and Siemens Australia

    • Schenker Group companies - Schenker Germany and Schenker Australia

    • “Direct Traffic” agreement for transport of goods and provision of related services - overarching and standing


Facts1
Facts

  • Agreement among Siemens and Schenker companies

    • Schenker Germany agreed to carry goods from Siemens Germany factory in Berlin to bonded warehouse of Schenker Australia outside perimeter of Melbourne airport

    • Schenker Germany and Schenker Australia agreed to provide all transport and related services

    • “Direct Traffic” agreement, with no limitation of liability provision, was supplemented by Clause 4 of FIATA Neutral AWB issued by Schenker Germany


Facts2
Facts

  • Time and place of damage to goods

    • After arrival at named airport of destination

    • Beyond perimeter of airport

    • Within customs’ control

    • Prior to delivery to consignee

    • During road carriage to bonded warehouse


Facts3
Facts

Airport of destination

Melbourne

Airport of

departure

Berlin - Tegel

Place of

delivery

Bonded

Warehouse


Facts4
Facts

  • Cause of damage

    • Negligence of Schenker Australia, subcontractor of Schenker Germany, performing road carriage

    • Liability exposure

      • Value of claim AUD1,700,000

      • Limitation of liability, if applicable, AUD140,000(Clause 4 of FIATA Neutral AWB)


Facts5
Facts

  • Clause 4 of FIATA Neutral AWB

    • “Except as otherwise provided in carrier’s tariffs or conditions of carriage, in carriage to which the Warsaw Convention does not apply , carriers’ liability shall not exceed USD20 ... per kilogram of goods ... damaged ...”


Court findings
Court Findings

Airport of destination

Melbourne

Airport of

departure

Berlin - Tegel

Place of

delivery

Bonded

Warehouse

not Convention “carriage”

Type of carriage

Liability regime

Convention “carriage”

Clause 4 of FIATA Neutral AWB

Convention


Court findings1
Court Findings

  • By a 3 to 2 majority

    • Clause 4 did apply to road carriage and was not restricted to air carriage or airport to airport carriage

    • Clause 4 did apply after goods collected at airport of destination and up to time when delivery allowed by laws at place of destination outside airport perimeter

    • FIATA Neutral AWB including Clause 4 continue to have contractual application after goods were collected from airport of destination

    • Note findings of Court minority


Court findings2
Court Findings

Airport of destination

Melbourne

Airport of

departure

Berlin - Tegel

Place of

delivery

Bonded

Warehouse

not Convention “carriage”

Type of carriage

Liability regime

Convention “carriage”

Clause 4 of FIATA Neutral AWB

Convention


Future steps
Future Steps

  • Review conditions of contract for application beyond airport to airport carriage


Future Steps

  • Review conditions of contract of FIATA Neutral AWB and IATA Neutral AWB


Future Steps

  • Review combined transport / door to door / Express AWB


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