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24 October 2018
A sender recently claimed compensation from a carrier for the alleged loss of and damage to various consignments.
After several conversations and emails, the claimant received a document bearing the heading "settlement details", which he was asked to fill out. Among other things, the document stated that the carrier was offering a fixed amount as compensation for all damages relating to the transport in dispute, which exceeded the minimum liability under national transport law. Further, the document explicitly stated above the signature line that the payment of this amount would definitively satisfy any claims against the carrier and his affiliated companies.
The sender signed the document and returned it to the carrier. Having received the agreed compensation from the carrier, the sender also reported the damages to his transport insurer. The insurer asserted claims for compensatory damages against the carrier, which invoked the conclusive settlement agreement that had been concluded with the sender.
According to the Darmstadt Regional Court (Decision 12 O 76/17 of 5 June 2018), the carrier had argued correctly that the damages had already been settled conclusively (ie, the claims settlement had been valid and binding). This included the final compensation, which had had preclusive effect in favour of the carrier and at the expense of the sender with regard to the transport insurance. The sender had not only spoken to the carrier several times, but had also signed the corresponding document. The settlement had also been based on mutual concessions because the carrier had paid more than was required by law.
While settling claims out of court to avoid losing customers is becoming standard practice in the shipping and transport industry, such payments should not be made prematurely – particularly if the carrier's responsibility for the damage is unclear.
In most cases, the opposing party interprets such goodwill payments as an acknowledgement of debt at a later stage in the proceedings. Therefore, carriers are advised to draw up a brief compensation declaration (as was done in the case at hand) to avoid having to compensate twice. The question remains as to whether more than the statutory basic liability should be offered in this regard. The waiver of such objections should be sufficient to affirm mutual concessions, especially where a sender's contributory negligence can be taken into consideration.
For further information on this topic please contact Carsten Vyvers at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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