Update Commercial 2026: Logistics contracts

Outlook for case law in logistics and transport law

Since our last Commercial Update, a number of new decisions of practical relevance to logistics and transport law have been handed down. The focus here is on judgments concerning a consignee’s direct right of action against a sub-carrier, a carrier’s right to choose the mode of transport where none has been agreed, the liability of a warehouse keeper in mixed sea/warehousing contracts, and the burden of proof and contributory negligence in cases of delivery to unauthorised third parties under the CMR.

Consignee’s direct claim against the sub-carrier where it undertakes delivery

The Federal Court of Justice confirmed and clarified (judgment of 24 April 2025 – I ZR 103/24) (in German) that, in cases of loss, damage or delayed delivery of goods, the consignee may also assert its rights directly against the sub-carrier if the latter has undertaken delivery to the final consignee. The legal basis for this is Section 421(1), second sentence of the Commercial Code, which applies in principle not only to the main carriage but also to the sub-carriage. Since Section 421(1), second sentence of the Commercial Code applies directly, there is no need to rely on pos­sible third-party beneficiary rights under Section 328 of the German Civil Code in order to grant the consignee a direct claim against the subcarrier.

Carrier’s right of choice where the mode of transport has not been agreed

In its decision of 26 November 2024 (20 O 58/23), Darmstadt Regional Court clarified that the applicability of specific transport law provisions, such as the Commercial Code for surface transport or the Montreal Convention for air carriage, does not depend on the mode of transport actually used but on what has been agreed in the transport contract. Where the transport contract does not specify the mode of transport, it is for the carrier to make the choice at its reasonable discretion. As a result, the carrier can effectively determine unilaterally which legal regime will govern the particular carriage.

Liability of the warehouse keeper for water damage

Hamburg Higher Regional Court (judgment of 6 June 2024 – 6 U 70/23) (in German) dealt with water damage to a packaged printing press under a mixed sea/warehousing contract. Where the contractor undertakes sea carriage, which will be followed by storage, this constitutes a mixed contract and the liability regime applicable to each phase of performance governs that phase. If it is undisputed that the damage occurred while the goods were in the contractor’s custody, but the precise place of damage is unknown, the contractor bears the burden of pleading and proving that the damage occurred in the phase that is more favourable to it from a liability perspective.

Stringent requirements must be met in order for the warehouse keeper to be exonerated under Section 475 of the Commercial Code: The warehouse keeper must identify the specific cause of the damage and prove that the storage facilities were such as to adequately prevent damage. If the cause or the time of the damage remains unclear, this will be interpreted to the detriment of the warehouse keeper. In the absence of a specific storage agreement, selecting a suitable storage location is a fundamental contractual obligation. Goods that are obviously susceptible to weather conditions must, as a rule, not be stored outdoors; where there is any doubt, the warehouse keeper must obtain instructions from the depositor.

Burden of proof and contributory negligence where delivery is made to unauthorised third parties despite contact details being provided in the consignment note (CMR)

Hamm Higher Regional Court (judgment of 21 August 2025 – I-18 U 101/20) (in German) set out how, in international road carriage under the CMR, the burden of proof and contributory negligence are to be determined where goods are delivered to unauthorised third parties: If it is established that delivery did not take place at the contractually agreed place, the carrier bears the burden of proving that delivery was nevertheless properly effected to the entitled consignee at another location. Simply naming a contact person (name/telephone number) on the consignment note for scheduling purposes does not give that person authority to change the place of delivery. The court also held that contributory negligence on the part of the sender cannot be inferred solely from the fact that it fell victim to fraud in the underlying transaction. However, contributory negligence may be assumed where, in the light of clear warning signs prior to delivery, it would still have been possible to prevent delivery.

This article is part of the "Update Commercial 2026". All insights and the entire report as a PDF can be found here.