Damage to goods in transit: burden of proof
July 14 2010
On December 15 2009 the Cologne Court of Appeal ruled on the question of whether the sender is obliged to prove that adequate pre-cooling of goods has taken place where those goods are damaged in transit due to an interruption in the cold chain.
Facts
A consignor claimed compensation from a defendant freight forwarder for damage in transit to a consignment of frozen food.
The consignor contracted the carrier to transport pallets of frozen food from the consignor's storage unit to the consignee. In the consignment note the parties agreed that a cooling temperature of at least -18 degrees Celsius would be maintained in the refrigerated hold of the truck during transportation.
At 1:30pm on August 18 2006 the consignment arrived at the consignor's storage unit. At 8:40pm the consignment was loaded onto the defendant freight forwarder's truck. The loading took 20 minutes. When the consignment was handed over to the consignee, the consignment had a temperature of between -10.5 degrees Celsius and -11.5 degrees Celsius.
The consignor claimed that the frozen food was no longer saleable due to the relatively high temperatures to which it had been exposed, asserting that the frozen food had defrosted. The defendant claimed that the fact that the frozen food had defrosted was the result of inadequate pre-cooling and faulty loading on the part the consignor.
An expert investigation demonstrated that the cooling air flow around the consignment was not sufficiently strong due to the fact that certain cooling air ducts had been compressed by a crossbeam in the hold of the truck. The consignor claimed that the driver was responsible for the operation of the crossbeam and that his staff had failed to recognize the problem.
The consignor submitted that when the consignment had arrived at its storage unit, it had a measured temperature of -17.8 degrees Celsius. The consignment was stored in cold storage until 20:40pm at a temperature of -30 degrees Celsius. According to the expert, this caused the consignment to cool to a temperature of at most -18 degrees Celsius. During loading, the ramp was closed. Moreover, the temperature of the truck was set to -27 degrees Celsius and the refrigerated hold and walls of the refrigerated trailer were cold.
The court of first instance allowed the major part of the consignor's claim. The defendant then appealed before the Cologne Court of Appeal, but was unsuccessful concerning on these issues.
Decision
The court of first instance ruled that the goods had been damaged in transit due to an interruption in the cold chain. The court noted that the damage had occurred during the defendant's period of liability, since at the point of delivery, the consignment was no longer saleable due to the food having been exposed to temperatures as high as -10 degrees Celsius. The court could not establish that the consignment had been exposed to a temperature of -10 degrees Celsius as the result a lack of pre-cooling by the consignor, since the defendant's plea was based on a lack of knowledge. The expert investigation proved that the compressed air ducts had resulted in a reduction in cooling in the truck's hold.
The court further held that the defendant was responsible for the interruption in the cold chain, since it was the driver's duty to operate the truck's technical facilities.
The Cologne Court of Appeal dismissed the defendant's appeal on these points. It confirmed the view that the consignor had proved that it had undertaken adequate pre-cooling of the consignment. The burden of proof was not crucial due to the clear oral evidence that had been submitted.
The court also agreed with the earlier ruling regarding the consignor's denial of a fault in loading the consignment, since the reason for the damage was the incorrect adjustment of the crossbeams, the operation of which was the vehicle driver's responsibility. An error in loading could have been established only if the consignor had packed the pallets so high as to compress the air ducts at the top of the hold.
No contributory negligence was found on the part of the consignor, since there was no evidence to suggest that its employees recognized that the crossbeams were in the wrong position at the time they loaded the truck.
Comment
Although in this case the burden of proof was not a critical factor due to the clear oral evidence that was submitted, the decision again emphasizes that in such cases the consignor must prove, according to general principles, that a consignment was undamaged at the point at which it was delivered to the freight carrier.
In cases involving refrigerated transit, the sender (or its insurer) is obliged to present evidence of the facts regarding a consignment's pre-cooling in order to allow the court to ascertain whether there was contributory fault. In the case at hand such fault could have been established if the consignor's employees had recognized that the temperature in the hold was too high or if the driver had advised the consignment loaders that their loading was faulty. The carrier was liable for the damage to goods, since the temperature in the vehicle had been set incorrectly and the loader and its employees did not recognize this.
For further information please contact Isabel Auf der Horst at Dabelstein & Passehl by telephone (+49 40 31 77 97 0), fax (+49 40 31 77 97 77) or email (i.aufderhorst@da-pa.com).
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