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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
slide13

Future Steps

  • Review conditions of contract of FIATA Neutral AWB and IATA Neutral AWB
slide14

Future Steps

  • Review combined transport / door to door / Express AWB
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