Shipping & Transport - Germany

Facts
Decision
Comment

Facts

In a recent case the Federal Civil Supreme Court again ruled on the contributory negligence of a consignor for loss of cargo during consignment.

The consignor claimed for damages for loss of cargo in 56 cases where cargo previously handed over to the carrier was lost under unknown circumstances during consignment. The general terms and conditions of the carrier in Clause 10 of the agreement provided for a limitation of liability for loss of cargo in the amount of Dm1,000 (equal to €511.29). An exemption from the limitation was formulated as follows:

“10. Liability

[The carrier] is liable… up to an amount of Dm1,000 per packet… unless the consignor, as described in the following, declares that the cargo has a higher value.

The limitation of liability is raised by a correct declaration of the value of the cargo. This declaration of the value shall constitute the limitation of liability. The consignor by omitting to make a declaration of the value declares that his interest in the cargo does not exceed the abovementioned liability…”

The consignor argued that the carrier was liable without limitation. However, the carrier paid damages only in the amount of €511.29 for each packet lost. It stated that it was not liable for further damages due to contributory negligence by the consignor, and that it would have handled the cargo more carefully had the consignor declared that the cargo had a value higher than €511.29. The consignor was aware that when a customer requests a consignment of cargo with a value higher than €511.29, the cargo is handed over by the customer directly to the carrier’s driver in order to separate it from other cargo. The consignor denied knowledge of the varying degrees of care exercised by the carrier during consignment since it had not received specific information in this regard from the carrier.

Decision

The Federal Civil Supreme Court held that contributory negligence should not be denied even though the consignor was not explicitly informed about the varying care exercised by the carrier.

According to the court, the consignor could infer from the facts known to it that the carrier was able to provide a particularly careful consignment only if the cargo were handed over directly and separately to the carrier’s driver. The court held that it would be obvious to a careful consignor that a separate handover was a necessary prerequisite for particularly careful treatment.

Comment

With this decision the Federal Civil Supreme Court both continued and advanced its previous case law on contributory negligence.

The court has repeatedly held that contributory negligence of the consignor exists if the consignor disregarded the diligence that a careful consignor would exercise in order to prevent damage to the cargo. If the carrier offered specific means of protection regarding the cargo, but the consignor did not make use of this, the risk of loss of the cargo could not be entirely shifted to the carrier. The consignor deliberately accepted the risk of loss of the cargo if it did not make use of the available means of protection. Consequently, according to the court, the consignor (partially or even entirely) had to bear the risk of a loss of the cargo. In general, a consignor disregards the diligence of a careful consignor if, for example, (i) it does not make use of the specific means of protection offered by the carrier against payment of a higher consideration, or (ii) it does not inform the carrier that the cargo has an exceptionally high value.

In this latest decision the court confirms that the principle of contributory negligence may also be applied if the consignor was not explicitly offered a specific means of protection by the carrier, but could have concluded from the facts known to it that the carrier varied its treatment of cargo depending on the need for particularly careful treatment.

For further information on this topic please contact Nicoletta Kröger at Dabelstein & Passehl by telephone (+49 40 31 77 970) or by fax (+49 40 31 77 97 77) or by email (n.kroeger@da-pa.com).